IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH NOVEMBER 2007 / 16TH KARTHIKA 1929 AS.No. 183 of 2001() -------------------- OS.1176/1994 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS/DEFENDANTS: ----------- 1. REJITHA, AGED 40 YEARS, D/O.LATE NEELAMBILLY RAGHAVAN, CHITTILAPPILLY VILLAGE AND DESOM, THRISSUR TALUK. 2. PREMAN, AGED 37 YEARS, S/O.LATE NEELAMBILLY RAGHAVAN, -DO- -DO- 3. SUMATHY, AGED 33 YEARS, D/O. LATE NEELAMBILLY RAGHAVAN, -DO- -DO- 4. SHYLAJA, AGED 30 YEARS, D/O.LATE NEELAMBILLY RAGHAVAN, -DO- -DO- BY ADV. SRI.JIJO PAUL RESPONDENTS: ----------- 1. SHABEENA, AGED 20 YEARS, D/O.AMBALATHUVEETTIL HAMEED, KOORKANCHERY VILLAGE, THRISSUR DIST. 2. UNNIKRISHNAN, AGED 40 YEARS, S/O.PARAMMAL RAVUNNY PURANATTUKARA VILLAGE AND DESOM, THRISSUR TALUK. R2 BY ADV. SRI.T.M.CHANDRAN SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE SMT.SANJANA R.NAIR THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 07/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- A.S.NO.215/2002 JUDGMENT Raman, J. When the case was taken up, none appeared. Name of the parties called. Absent. Dismissed for default. Sd/- P.R.RAMAN, JUDGE. 7th November, 2007 Sd/- V.K.MOHANAN, JUDGE. True Copy P.A. to Judge. P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 183 of 2001 & 215 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2009. JUDGMENT Bhavadasan, J, Defendants, who suffered a decree at the hands of Sub Judge, Thrissur are the appellants. A.S.183 of 2001 has been filed by defendants 2 to 6 except defendant No.4 and A.S.215 of 2002 has been filed by the seventh defendant. The parties and facts are hereinafter referred to as they were available before the court below. 2. The suit was one for specific performance. It is an admitted fact that the original defendant, who is the predecessor in interest of defendants 2 to 6 had entered into an agreement for sale with the plaintiff as evidenced by Ext.A1 dated 17.3.1994. It was agreed that the property would be sold at the rate of Rs.4100/- per cent. The extent of property was nearly 30 cents. Advance amount of Rs.25,000/- was paid on AS.183/2001 & 215/2002. 2 the date of Ext.A1 itself. The sale was to be completed within two months, that is on or before 16.5.1994 on payment of the balance sale consideration. Even though the plaintiff was always ready and willing to perform his part of the contract, and also had informed the original defendant to execute the sale deed, the original defendant under one pretext or other got extension of time. Finally the date of execution of the sale deed was fixed as 18.6.1994 and an endorsement to that effect was made in Ext.A1 agreement for sale. It is stated that later the first defendant received Rs.15,000/- for his personal purpose from the plaintiff. That was also endorsed in the agreement for sale. The first defendant is alleged to have again sought for time and accordingly time was extended till 30.7.1994. Plaintiff sent a notice. A reply was sent by the first defendant containing false statements. The accusation of the first defendant that the breach was on the part of the plaintiff is incorrect and there was no clause in the agreement whereby the advance paid by the plaintiff is to be forfeited. The first defendant AS.183/2001 & 215/2002. 3 also denied having received Rs.15,000/- as alleged in the plaint. The first defendant went on to say that he had informed the plaintiff that he was ready and willing to perform his part of the contract and had asked the plaintiff to come to the Sub Registrar's Office on 30.7.1994. The plaintiff expressed his willingness to purchase the property even as on the date of suit. The plaintiff therefore sought a decree to set aside the deeds executed in favour of the sixth defendant and also in favour of the seventh defendant and for a direction to defendants 2 to 6 to execute the sale deed in his favour or else for return of the advance amount paid by him with 12% interest. 3. The suit was resisted by the original defendant. He denied the allegations in the plaint. He admitted execution of Ext. A1 and receipt of Rs.25,000/- on the date of Ext.A1. According to him that was not advance amount, but earnest money. The allegation in the plaint that time for execution of the sale deed was extended periodically at the instance of the first defendant is AS.183/2001 & 215/2002. 4 incorrect. He denied having received Rs.15,000/- as claimed by the plaintiff. He would contend that the plaintiff had never expressed his readiness and willingness to perform his part of the contract. He would also admit that initially the sale deed was to be executed on or before 16.5.1994, but it was extended to 18.6.1994 and then to 30.7.1994 at the behest of the plaintiff. He claimed that he had asked the plaintiff to come to the sub Registry Office on 30.7.1994 for execution of the deed. Though she agreed, she did not turn up. It is also pointed out that the plaint schedule property had already been transferred by him to his daughter by name Sylaja and he had no subsisting interest in the property. Since she is not a party to the suit, the suit is bad for non-joinder of necessary party. He therefore prayed for a dismissal of the suit. 4. It was during the pendency of the suit that the original defendant died and his legal heirs were brought on party array as additional defendants 2 to 6. They filed a joint written statement adopting the contentions of the original defendant. They AS.183/2001 & 215/2002. 5 also pointed out that the property had already been assigned to the seventh defendant and he is a necessary party to the suit. 5. Later the seventh defendant was impleaded and Smt.Shylaja, the daughter of the original defendant had come on record as the legal representative. The seventh defendant remained ex-parte. For the purpose of the suit, the court below had Exts.A1 to A6 marked and P.Ws. 1 to 4 examined on the side of the plaintiff. The defendants had examined D.W.1 and had Exts.B1 to B5 marked. 6. On a consideration of the materials before it, the court below came to the conclusion that none of the contentions taken by the defendants are valid and it was the first defendant who had committed breach of the contract. Finding that there is no justifiable reason to deny specific performance, the plaintiff was given a decree in that regard. 7. Learned counsel appearing for the appellants pointed out that the court below was not justified in decreeing the suit in AS.183/2001 & 215/2002. 6 favour of the plaintiff. There was clinching evidence to show that it was the plaintiff who was at default and that the original defendant was always ready and willing to perform his part of the contract. In fact, the learned counsel states that the first defendant had approached the plaintiff and had asked to come to the Sub Registrar's Office on 30.7.1994 to execute the sale deed. At any rate, learned counsel pointed out that since the breach was on the part of the plaintiff, the amount of advance ought to have been forfeited and specific performance ought not to have been granted. 8. Learned counsel appearing for the appellant in A.S. 215 of 2002 supported the contentions raised by the counsel for the appellants in the other appeal. 9. Learned counsel appearing for the respondent- plaintiff pointed out that there is no merit in any of the contentions taken by the appellants. A scrutiny of the evidence will show that the breach was on the part of the first defendant and he had tried to avoid execution of the deed in his favour. It is pointed out that the AS.183/2001 & 215/2002. 7 plaintiff was always ready and willing to perform his part of the contract and it was the first defendant who had sought extension of the period. Learned counsel pointed out that the court below has considered almost all the aspects in detail and no grounds are made out to interfere with the same. 10. Ext.A1 is an agreement for sale of nearly 30 cents at the rate of Rs.4100/- per cent. It also shows that an advance amount of Rs.25,000/- was received by the first defendant. Originally the sale deed was to be executed within two months. However the time was periodically extended and finally the date for execution of the decree was fixed as 30.7.1994. The plaintiff also claimed that on 4.6.1994 the first defendant had received a sum of Rs.15,000/- from him, therefore towards the sale consideration the plaintiff had paid a sum of Rs.40,000/-to the first defendant. 11. Denial of receipt of Rs.15,000/- is without any basis whatsoever. Ext.A1, as already stated, is an agreement for AS.183/2001 & 215/2002. 8 sale. At page 3 of the said document, there is an endorsement to the effect that a sum of Rs.15,000/- was received by the first defendant on 4.6.1994. His name and signature are found on the document. It is interesting to note that while receipt of Rs.15,000/- was denied, the endorsements regarding extension of time were admitted by the defendants. The court below compared the admitted signature of first defendant with the signature found on the endorsement said to have been made by the first defendant and found that they closely resemble. One must note that Ext.A1 was produced along with the plaint. P.W.2 was the person who made the endorsements. He categorically stated before court that Rs.15,000/- was paid and it was received by the first defendant. On receipt of the amount, the first defendant had written his name and affixed his signature. As already stated, the receipt of Rs.15,000/- is disputed by the first defendant, and also that the endorsement regarding the receipt of the same is a false one. But interestingly enough, in Ext.B2 document, which is the copy of AS.183/2001 & 215/2002. 9 Ext.A1 document, and which was kept in the custody of the first defendant also shows similar endorsement. As already stated, the name and signature in Ext.B2 is also in the handwriting of the first defendant and if as a matter of fact an unilateral entry was made by the plaintiff, one fails to understand how the same entry was reflected in Ext.B2 also. On the basis of the said fact, the court below came to the conclusion that the first defendant had entered into an agreement with plaintiff. It was therefore clear that the first defendant had received an amount of Rs.40,000/- as alleged in the plaint. 12. The other contention of defendants 2 to 6 was that the first defendant was always ready and willing to perform his part of the contract, and it was the plaintiff who committed breach. At any rate, there is no contention on behalf of the defendants that the plaintiff did not have sufficient funds to pay the balance sale consideration. Ext.A2 is a notice dated 30.7.1994 issued by the plaintiff to the first defendant. It was received by the first AS.183/2001 & 215/2002. 10 defendant. It is seen that the first defendant received the notice on 1.8.1994. In the reply sent by the first defendant on 5.8.1994 there is no mention of any document having been executed in favour of the sixth defendant. The evidence shows that the first defendant did execute the gift deed in favour of the sixth defendant on 3.8.1994. It was thereafter that the first defendant along with the sixth defendant had executed sale deed in favour of the seventh defendant. There was no justifiable reason as to why the gift deed in favour of the sixth defendant was not disclosed while sending reply notice. 13. It is true that the defendants have been able to produce some documents to show that the first defendant had gone to Sub Registrar's office on 30.7.1994, but they are not of much significance in the light of the reply notice and other documents produced by the plaintiff. 14. It is well settled that time is not the essence of the contract in the case of an agreement for sale. It is conceded by AS.183/2001 & 215/2002. 11 both sides that final date fixed for execution of the document was 30.7.1994. While the plaintiff would say that he had sent a notice to the first defendant expressing his readiness and willingness to perform his part of the contract, defendants claimed otherwise. 15. Now one needs to take note of the document in favour of the seventh defendant. Ext.A4 dated 24.8.1994 is the relevant document. The entire property covered by Ext.A1 was sold to the seventh defendant for a sum of Rs.30,000/-. One may recollect that as per Ext.A1 document the agreement was to sell the property at the rate of Rs.4100/- per cent and the total consideration would nearly come to Rs.1,20,000/-. It was that property that was sold to the seventh defendant for a sum of Rs.30,000/-. The seventh defendant remained ex-parte and he did not choose to contest the case. There is nothing to show that the property had been transferred to him or he had done anything in pursuance to the sale in his favour. The claim of the plaintiff that the sale deed in favour of the seventh defendant is only a AS.183/2001 & 215/2002. 12 camouflage cannot be easily brushed aside. One must notice that the evidence clearly shows that the first defendant had already received Rs.40,000/- as advance towards the sale consideration from the plaintiff. It is extremely difficult to accept the claim of the defendants that Ext.A4 is a genuine document and the title had passed to the seventh defendant. 16. It is also interesting to note in this regard that later on when the seventh defendant came to have the ex-parte decree against him set aside, his wife, his power of attorney holder, says that she was told about the ex-parte decree against the seventh defendant by the second defendant on 10.11.2000. The occasion for the second defendant to disclose this fact to the wife of the seventh defendant is not discernible from the records. It must be noticed that when summons was sought to be served on seventh defendant, his wife told the process server that the seventh defendant had gone abroad on employment. It seems that the plaintiff then tried to serve notice on seventh defendant by AS.183/2001 & 215/2002. 13 affixture. When that petition came up for consideration, Adv.Sajinarayanan appearing for defendants 2 to 6 had represented before court that he intends to file vakalath for the seventh defendant also. The court below therefore posted the case for the written statement of the seventh defendant. Later it was found that the seventh defendant had not filed his vakalath and that no written statement had been filed by him. Considering the above facts, it is clear that the seventh defendant was aware of the proceedings and he was sitting on the fence. It is also reasonable to presume that wife of seventh defendant would have told him about the attempt made by the process server. 17. The enthusiasm, anxiety and interest shown by defendants 2 to 6 in prosecuting the case betray them. If as a matter of fact, defendants 2 to 6 had no interest in the property, there was no need for them to contest with such vehemence. The property had already been sold to seventh defendant and it is for him to protect the property. Even after seventh defendant had AS.183/2001 & 215/2002. 14 remained ex-parte, defendants 2 to 6 chose to strongly contest the suit and adduced evidence on their behalf. 18. It was the above facts and circumstances discernible from the evidence, which had persuaded the court below to come to the conclusion that it was the first defendant who had committed breach of the contract. That finding cannot be faulted. 19. Except the extension of the period, the first defendant had disputed all other allegations made by the plaintiff. However, on evidence it turned out that the plea of the defendants are incorrect and contrary to the records. At the risk of repetition, it may be seen that defendants 2 to 6 had filed a written statement and had contested the suit. 20. What now remains to be considered is whether the court below exercised its jurisdiction under Section 20 of the Specific Relief Act properly. Unless there are circumstances to show that the plaintiff had made undue gain or advantage or was at AS.183/2001 & 215/2002. 15 fault in some manner, normally a decree for specific performance should follow. Merely because the price might have gone up by itself is not a ground to deny relief of specific performance to the plaintiff. True, it is a discretionary remedy. But the exercise of discretion should be governed by sound judicial principles. It is also true that specific performance cannot be demanded as a matter of right and the court has got wide discretion in the mater. Ordinary rule is that specific performance should be granted unless the circumstances compelled the court to exercise the discretion against the plaintiff. It may not be possible to envisage all the circumstances under which the discretion is to be exercised. One possible view is that unless it is shown that the transaction had fallen through due conduct or neglect on the part of the plaintiff, which had caused injury to the defendant, normally specific performance will be granted. There may be other compelling reasons which may create suspicion in the claim made by the plaintiff and by which he may derive unfair advantage. Under such AS.183/2001 & 215/2002. 16 circumstances also specific performance can be denied. Viewed in the light of the above principles, it cannot be said that the court below had committed any legal or factual error in granting a decree for specific performance to the plaintiff. The result is that these appeals are without merit and they are liable to be dismissed. We do so with costs of Rs.1500/- to the contesting respondent by the appellant in A.S.183 of 2001 as well as appellant in A.S. 215 of 2002. P.R. Raman, Judge P. Bhavadasan, Judge sb. AS.183/2001 & 215/2002. 17 P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 183 of 2001 & 215 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 06.08.2009