IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 RP.No. 560 of 2008(C) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.10315/2008 Dated 27/03/2008 .................... REVIEW PETITIONER/PETITIONER: --------------------------------------------------- R.ANANTHAKUMAR, S/O.V.RAMACHANDRA REDDIAR, RESIDING AT DHANUS, CURRZON ROAD, CUTCHERRY, WARD, KOLLAM-691013. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. S.M.VENKATANARAYANAN, RESIDING AT S.M.V. GARDENS, ANDAMUKKAM WARD, KOLLAM. 2. V.RAMACHANDRA REDDIAR,S/O.VEERIAH REDDIAR, 3. R.VEERESH KUMAR, S/O.V.RAMACHANDRA REDDIAR 4. R.DHANALAKSHMI AMMAL, W/O.V.RAMACHANDRA REDDIAR, RESPONDENTS 2 TO 4 ARE RESIDING AT DHANUS CURZON R OAD, CUTCHERRY WARD, KOLLAM-691013. BY ADV.P.B.SURESH KUMAR THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- R.P. No. 560 OF 2008 IN W.P.(C) No. 10315 OF 2008 --------------------- Dated this the 11th day of July, 2008 ORDER This review petition is preferred to review the judgment passed by this court in W.P.(C) No. 10315/08 . The said writ petition was filed against the order of the subordinate judge Alappuzha whereby while rendering a finding on issues 1 &2 came to the conclusion that the matter requires evidence and therefore they cannot be tried as a preliminary issue as contemplated under Order XIV Rule2 of the Civil Procedure Code. This court also held that it need not be tried as a preliminary issue and further held that there is an alternate prayer for return of the amount which also has to be considered. Therefore even if it is found that Section 15 is a bar, the question has to be considered only after evidence. SLP No. 9108/08 was also filed before the Apex court. The Apex court had dismissed it at the admission stage itself. It is thereafter the present review petition is filed incorporating the grounds that were not available at the time of challenge before this court. 2. I feel for the purpose of this case it is desirable to RP No.560/08 2 understand the argument of the learned counsel for the review petitioner as follows. It is contended by him that the agreement relied upon by the plaintiff in the suit is a unilateral agreement and when it is so, it is unenforceable and section 15 of the Specific Relief Act only entitles the court to deal with an agreement entered into between the parties. It is submitted by him that since the document relied upon by the plaintiff is only an alleged unilateral agreement executed by the defendants in favour of the plaintiff, the plaintiff being not a party to the sale, there is no concluded contract and so it is not enforceable. Referring to Sec. 22 of the Specific Relief Act he would contend that the question of return of money would arise in a case only where the specific performance relief is refused by the court. In other words, he would submit that a recovery of the amount shall not have an independent leg to stand and therefore if the court finds that a suit cannot be entertained as it is barred under Sec. 15 of the Specific Relief Act, the plaintiff has to be thrown out and it being a pure question of law, that has to be adjudicated as a preliminary issue. 3. On the other hand learned counsel for the plaintiff would contend that what has to be looked into is whether there is a RP No.560/08 3 concluded contract and whether that conclusion can be arrived at by merely looking into the materials in the suit or written statement. If it is not possible then, necessarily the court has to enter into a finding on evidence regarding the same which bars the court from considering the question of maintainability as a preliminary issue. There cannot be any dispute that the principles contained in Order XIV Rule 2 (2) is to the effect that if the case is capable of being decided on the basis of undisputed facts emerging from the pleadings, it is the duty of the court to decide the said issue as a preliminary issue. 4. Learned counsel for the review petitioner had taken enormous pain to bring to the notice of this court the various decisions rendered by the Apex court as well as other High Courts and this court to canvas for the proposition that this is a case where there is an absolute bar under Sec. 15 and therefore the matter has to be decided as a preliminary issue. 5. The first decision cited by learned counsel is Mayawanti v. Kaushalya Devi [1990 (3) SCC 1] wherein the learned counsel argued that the principles are extracted in paragraph 8 of the judgment. It is a settled principle that “in a case of specific RP No.560/08 4 performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract.” So the minimum requisite is that there must be an enforceable contract. Learned counsel then had invited the attention of this court to the two decisions rendered by the Madras High Court in S.M.Gopal Chetty v. Raman [AIR 1998 Madras 169] and Pushpa Bai v. Dr. Williams [AIR 2001 Madras 447]. In the decision referred to in Pushpa Bai v. Dr. Williams [AIR 2001 Madras 447] the learned counsel has specifically referred to paragraphs 40, 41 and 42. A bare reading of the fact would reveal that the said agreement in the case was captioned as if it is an agreement entered into between the plaintiff and the defendants in the case and when the agreement comes, it is signed by one of the parties. Therefore the court held that such an agreement cannot be enforced under section 15 of the Specific Relief Act. So far as the decision in S.M.Gopal Chetty v. Raman [AIR 1998 Madras 169] is concerned, it is specifically stated that “if there is no contract at all, then the question of specific performance does not arise.” It has also laid down that as per Sec.2 (b) of the Indian Contract Act, 1872, a proposal becomes a promise RP No.560/08 5 only when the person to whom the proposal is made signifies his assent thereto and when the proposal is accepted. This is a matter which requires consideration. 6. Learned counsel had also referred to the decision of this court reported in Narayana Pillai Chandrasekharan Nair v. Kunju Amma Thankamma [AIR 1990 Kerala 177] wherein this court held that if it is a unilateral agreement there is no mutuality and therefore there can be an enforceable contract. 7. On the other hand learned counsel for the respondents in the review petition would contend before me that the present point raised by the learned counsel for the review petitioner has been answered by this court in the decision reported in Hassankutty v. P.P. Rawther [2000 (1) KLT S.N.Page 8 Case No.8]. In that case the court has held that an agreement of sale, though not signed by the buyer, is a concluded contract and is therefore enforceable if there is passing of consideration and its acceptance. This court went on to held that “so even if the plaintiff has not subscribed his signature to Ext.A10, it cannot be contend that there was no mutuality as the receipt of the consideration or payment and receipt of the advance amount had been satisfied by the defendant No.1 in RP No.560/08 6 Ext.A10 itself. So, in order to enforce a contract the following matters are absolutely essential. When a matter is proposed and it is accepted it becomes a promise. When that promise is supported by consideration it becomes an agreement . When it is an agreement which is enforceable by law, it becomes a contract. These are the settled position of law so far as it relates to a contract. 8. Now let me briefly refer to the facts because I do not want to enter into a finding on the factual matrix for the reason that it may affect one of the parties if the case is to be tried. The document relied upon by the plaintiff in the case is Ext.P1 in the writ petition. It is described as a vilayadharakarar executed by the defendants in favour of the plaintiff. A reading of the said document would reveal that there had been an agreement for purchase of the property and the consideration is fixed at rupees two crores out of which 1.5 crore had been paid and the sellers wanted an year's time to evict the occupants of the building. It also refers to the consideration passed at various dates. Learned counsel for the review petitioner would submit before me that even if it is only a past consideration and it cannot be backed on as a semblance of a previous agreement before. Admittedly, we find another document Ext.P2 wherein the RP No.560/08 7 same defendants executes another document whereby there was a request for an year's extension of time on account of some reasons beyond their control to satisfy the conditions mentioned in the first agreement. In the first agreement there is a clause which says that there is a right for the plaintiff to get the agreement enforced through court of law on payment of balance consideration. So these are all matters which cannot be decided in the threshold level itself especially, when there are recitals in the documents relating to passing of consideration prior to the execution of Ext.P1 agreement. The contention whether it is only a past consideration for some other transaction or it is only a consideration for this transaction etc. are all matters that can be decided only in the suit. Learned counsel for the review petitioner had also drawn my attention to various paragraphs in the plaint. It is true that in the various paragraphs in the plaint there is a specific averment in relation to the agreement which is referred to as Ext.P1 in my judgment. But that will not end because the matter that requires consideration in the case is whether there has been a proposal, an acceptance, a promise , an agreement and a contract and if it is available whether it is enforceable or not. I feel that these are matters that can be considered by the court only on RP No.560/08 8 adducing evidence. Therefore, I hold that the question of maintainability cannot be considered as a preliminary issue for the reason that it is a matter which requires consideration on facts as well as on question of law. I also make it very clear that the observations mentioned by me shall not be taken as a ground to repel the contentions of the parties and the trial court has to proceed independently on the materials available. When the question of maintainability of the suit is canvassed in the suit and the materials are available in the form of evidence, it has to consider it fresh and should not jump to a conclusion because of some reference to some materials in this case. Lastly there was an argument on the question of alternate relief for recovery of amount and some paragraph which were devoted in the review petition regarding non payment of court fee. But at the time of argument it is fairly submitted that when court fee is paid for a larger issue there need no payment of court fee for other relief . Learned counsel for the review petitioner in fairness had cited before me the decision of the Apex court that when a writ petition is dismissed and SLP is also dismissed at the admission stage there is no question of merger and that the Apex court has held that it can be considered by the court which passed the judgment for RP No.560/08 9 review. He has also relied up on the decision of this court in Secretary, Ministry of Health & F.W.D. v. Aswathy Elsa Mathew [2008(2) KLT 670] wherein it is held that the rigour of Order XLVII need not tie down a constitutional court from reviewing its order. But I am not confining my finding on the basis of any restriction but only on the basis of the materials available and has come to the conclusion that the points that are to be decided shall be decided only on materials and evidence. Therefore Order XIV Rule 2 which gives a discretionary power to the trial court to consider such issues cannot be disturbed. Therefore review petition is disposed of accordingly. I also direct the court below to defer the trial of the suit till 16th August, 2008. M.N.KRISHNAN, JUDGE vps RP No.560/08 10