IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 SA.No. 249 of 1996(D) --------------------- {A.S.NO.142/1992 OF THE I ADDL. DISTRICT COURT, PALAKKAD IN O.S.NO.161/1990 OF THE PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: ---------------------------------------------------------------------- 1. VIJAYAN, S/O.CHAMI, AGED 32 YEARS, AGRICULTURIST, RESIDING AT SANKARAKANDOTH HOUSE, MANALI, KOPPAM AMSOM, PALAKKAD TALUK. 2. JANARDHANAN, S/O.CHAMI, AGED 28 YEARS, SPORTSMAN, RESIDING AT SANKARAKANDOTH HOUSE, MANALI, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SMT.PRASANNA H.KAMATH RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: -------------------------------------------------------------------------- 1. DAMODHARAN NAIR, S/O.GOVINDAN NAIR, AGED 90 YEARS, BUSINESS, RESIDING AT MANALI, KOPPAM AMSOM, PALAKKAD TALUK. 2. SREEDHARAN NAIR, S/O.GOVINDAN NAIR, AGED 34 YEARS, BUSINESS, RESIDING AT MANALI, KOPPAM AMSOM, PALAKKAD TALUK. ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- S.A..No.249 of 1996 ------------------------- Dated this the 5th day of January, 2009. JUDGMENT Defendants, in a suit for specific performance of an agreement for sale, are the appellants herein. 2. The plaint schedule property was agreed to be sold by the defendants in favour of the 1st plaintiff under Ext.A1 agreement for sale, a total extent of 8 cents at the rate of Rs.3,000/- per cent. An amount of Rs.4,000/- was paid as advance on the date of agreement. The period for execution was stipulated as 2 months. It seems that the plaintiff was ready with the balance consideration and document for execution of the sale. Ext.A4 advocate's notice was issued demanding execution of the sale in terms of Ext.A1 agreement. Defendants replied under Ext.A5 notice contending that they were willing to execute the sale deed, but it was the plaintiff, who was not ready with the balance consideration. This was the only reason why the execution of the sale deed was delayed. The defendants also took up a contention that Ext.A1 agreement did not contain a clause S.A..No.249 of 1996 :: 2 :: enabling the plaintiff to approach the court for specific performance and this stands in the way of the plaintiff seeking a specific performance of Ext.A1. The plaintiffs are, according to the defendants, if at all, entitled to claim the amount shown in the agreement by way of damages. 3. The trial court came to the conclusion that the plaintiffs had demonstrated that they were ready and willing to execute the sale deed after payment of the balance consideration. Since the execution of the agreement was not in dispute, there was no other factor, which stood in the way of specific performance of Ext.A1 agreement being granted in favour of the plaintiffs. 4. It was further found that absence of a clause in the agreement for sale specifically enabling the plaintiffs to approach the court for execution of the agreement by compelling the defendants for executing the sale, did not really dis-entitle the first plaintiff or stand in his way from seeking a specific performance of Ext.A1 agreement. Reliance was placed in this regard on the decision of the Supreme Court in Prakash Chandra v. Angadlal & ors. {1979(4) SCC 393} S.A..No.249 of 1996 :: 3 :: followed by a Bench of this court in Ameena Ummal v. Narayana Pillai {1989(1) KLT SN 45 [Case No.71]}. The judgment and decree of the trial court was confirmed by the lower appellate court affirming the reasoning given by the trial court in this regard. The defendants have come up with this second appeal challenging the concurrent decrees and judgments of the courts below. 5. I heard counsel on both sides. 6. As noted above, the execution of Ext.A1 agreement for sale was not in dispute. The fact that, Ext.A3 notice through the advocate demanding specific of performance, was sent on 13.3.1990, immediately after the expiry of the period mentioned therein, clearly expressing the plaintiffs' willingness to pay the balance consideration and take the sale deed, supports the case of the plaintiffs to a considerable extent. The defendants, no doubt, had taken up a contention that it was the plaintiffs, who had delayed the matter, in the written statement filed by them. But in the above circumstance, if they were actually willing to execute the sale deed, they could have very well taken up the contention S.A..No.249 of 1996 :: 4 :: that on payment of the consideration, they were willing to convey the property. They did not do so. The concurrent findings of the courts below that the 1st plaintiff has proved that he was willing to perform his part of the agreement is fully justified in the facts and circumstance of the case and obviously, it does not warrant interference by this court. 7. Learned counsel for the appellants submits that Ext.A1 agreement for sale only contains a stipulation for payment of damages and further submits that such a clause is eminently sustainable under Section 14(1) (a) of the Specific Relief Act. He contends that, in the absence of an enabling provision in the agreement, the plaintiff should have been treated as dis-entitled to seek a specific performance. 8. The issue as to whether the plaintiff would be dis- entitled to seek specific performance of the agreement, on the strength of an agreement, which did not contain any specific provision enabling the plaintiff to approach the court and seek enforcement of the agreement, was considered by the Supreme Court in Prakash Chandra v. Angadlal & ors. {1979(4) SCC 393}. The Supreme Court specifically held that a S.A..No.249 of 1996 :: 5 :: stipulation for payment of damages would not dis-entitle the plaintiff from seeking a specific performance of the agreement for sale, by compelling the defendants to execute the sale. This has been followed by this court in Ameena Ummal v. Narayana Pillai {1989(1) KLT SN 45[Case No.71]}. The issue is really covered against the defendants. The courts below had come to the correct conclusion. 9. No substantial question of law arises for consideration in this case. At any rate, the findings arrived at by the courts below are perfectly justified and do not warrant any interference by this court. For all these reasons, I do not find any merit in this appeal. Accordingly, the same is dismissed. Consequently, C.M.P.No.788/96 shall also stand dismissed. In the facts and circumstances of the case, the parties shall bear their respective costs. Sd/- (V.GIRI) JUDGE sk/ //true copy//