IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 AS.No. 398 of 1997() -------------------- OS.129/1992 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/DEFENDANT: ---------------- MUHAMMADALI, S/O.PATHIYASSERY ABDU, KADHIYALAM DESOM , EDAVILANGU VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.T.M.CHANDRAN RESPONDENTS/PLAINTIFFS: --------------------- 1. MOHANLAL, S/O.PADIYATH BALAKRISHNAN, KADHIYALAM DESOM, EDAVILANGU VILLAGE, KODUNGALLUR TALUK. 2. SUBRAMANIAN, S/O.PALAKKAPARAMBIL, (DIED) CHANDHU, -DO AMSOM AND VILLAGE, -DO- TALUK. ADDL. 3. THANKAM, W/O.PALAKKAPARAMBIL SUBRAMANIAN, KATHIYALAM DESOM, EDAVILANGU VILLAGE, KODUNGALLUR TALUK. '' 4. SANDHYA, D/O. PALAKKAPARAMBIL SBRAMANIAN, -DO- -DO- '' 5. SINDHU, D/O.PALAKKAPARAMBIL SUBRAMANIAN, -DO- -DO- '' 6.NIDHIN, S/O.PALAKKAPARAMBIL SUBRAMANIAN, -DO- -DO- (LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT ARE IMPLADED AS ADDITIONAL RESPONDENTS 3 TO 6 AS PER ORER DTD. 22/7/09 ON IA.NO.1272/09. ADV. SRI.P.VIJAYA BHANU FOR R3 TO 6 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 5/1/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.398 OF 1997 -------------------------- DATED THIS THE 5TH DAY OF JANUARY, 2010 JUDGMENT Defendant in O.S.No.129/92 on the file of the Sub Court, Irinjalakuda is the appellant. Plaintiffs filed the suit for specific performance of contract. The court below passed a decree for specific performance of contract and issued a direction to the defendant to assign the plaint schedule property to the plaintiffs, after receiving the balance consideration from the plaintiffs within two months. Aggrieved by the decree and judgment, the sole defendant has preferred this appeal. The parties hereinafter referred to as the plaintiffs and defendant as arrayed in the suit. 2. Ext.A2 is the agreement dated 12/8/91. The extent of property involved in the litigation is 35.5 cents. The price fixed for the property is Rs.85,200/- at the rate of Rs.2,400/- per cent. On the date of Ext.A2 agreement, the defendant received Rs.10,000/- towards advance consideration. The period fixed for -2- A.S.No.398/97 execution of the sale deed is six months. The last date for execution as per Ext.A2 agreement is 11/2/1992. According to the plaintiffs, the defendant failed to perform the agreement, measure out the property, hand over the title deeds and prior documents for the execution of the sale deed. It is further averred that the lst plaintiff has made arrangements for raising funds and he was having sufficient funds to purchase the property. Finding that the defendant is not prepared to execute the sale deed, the lst plaintiff has issued lawyer notice dated 16/1/1992 calling upon the defendant to execute the sale deed after receiving the balance sale consideration. Ext.A3 is the said lawyer notice. Ext.A4 is the reply notice issued by the defendant, in which it is alleged that the lst plaintiff was not willing to perform his part of the agreement and that he was not having sufficient funds for paying the balance consideration. 3. The lst plaintiff filed O.S.No.82/92 against the defendant seeking perpetual injunction restraining the defendant -3- A.S.No.398/97 from assigning the property to the third parties. The said suit was filed before the expiry of the period fixed for execution of the sale deed. According to the plaintiffs, the defendant has violated the terms of the agreement and was not willing to execute the sale deed. 4. In the written statement filed by the defendant, the execution of Ext.A2 agreement is admitted. It is also admitted that he received Ext.A3 lawyer notice and that he sent Ext.A4 reply. It is contended inter alia that the lst plaintiff was not ready and willing to perform the agreement and take assignment of the property within the time fixed in Ext.A2 agreement. It is also averred that the defendant was ready and willing to perform his part of the agreement and to execute the sale deed in favour of the lst plaintiff or his nominee within the time agreed to between the parties. According to him, the reply notice was sent stating the true facts. The main contention urged by the defendant is that the lst plaintiff is not having sufficient funds for payment of -4- A.S.No.398/97 balance consideration and he committed breach of contract. It is also contended that the filing of O.S.No.82/92 and the present suit are with the object of delaying the payment of balance consideration. 5. On the side of the plaintiff PWs.1 to 5 were examined and Exts.A1 to A5 and Ext.X1 were marked. On the side of the defendant DW1 was examined. No documentary evidence was adduced by him. 6. The questions as to who committed the breach of contract and whether the plaintiffs are entitled to the relief of specific performance of contract are examined in detail by the court below. The parties did not dispute the terms contained in Ext.A2 agreement. The defendant admitted the execution of the agreement. In the reply notice dated 27/1/1992 he has agreed to execute the sale deed as per the terms of the agreement. In this context, the filing of O.S.No.82/92 and the date of filing of the present suit assumed significance. The lst plaintiff filed -5- A.S.No.398/97 O.S.No.82/92 before the Munsiff's Court, Kodungallur on 6/2/1992, i.e. before the expiry of the period fixed for execution of the sale deed. The said suit was filed for perpetual injunction restraining the defendant from assigning or alienating plaint schedule property to the third parties. The said suit was filed on the apprehension that the defendant at any time may assign the property in favour of the third parties. Immediately after filing the said suit, the present suit was filed in February, 1992 for specific performance of the contract of sale. The conduct of the lst plaintiff in filing the present suit on 24/2/92 seeking specific performance of the contract of sale also shows the bona fides on his part in seeking remedies by approaching the court of law at the earliest time. The plaintiff issued Ext.A3 notice on 16/1/92 requesting the defendant to execute the sale deed within time, handover the prior title deeds and to measure the property within the period fixed for execution of the sale deed. So, the conduct of the plaintiffs are sufficient in support of the -6- A.S.No.398/97 proof of bona fides in carrying out the terms in Ext.A2 agreement. The stand of the defendant in the suit also assumes importance. In the written statement filed, it is specifically pleaded that he is not prepared to execute the sale deed stating that the lst plaintiff has committed breach of the contract and therefore he was not willing to perform his part of the agreement. Defendant was examined as DW1. Apart from his interested version that he was ready and willing to perform his part of the agreement, no other circumstances were brought out in evidence. The plaintiffs' witnesses testified that he was ready and willing to execute the sale deed within the period fixed in Ext.A2 agreement. Though the plaintiffs were cross-examined at length, the defendant was unable to elicit anything which would go to show that the plaintiffs have no bona fides in filing the suits or they were not willing to perform their part of the agreement. The trial court also noticed other circumstances, which will go to show that the defendant was not prepared to perform his part of -7- A.S.No.398/97 the agreement. The trial court observed that if the defendant was willing to perform his part of the contract, he should have very well submitted the same in O.S.No.82/92 and could have assigned the property to the lst plaintiff. The non-readiness and non-willingness to execute the sale deed expressed by the defendant in the suit also show that his contention lacks bona fides. The court observed so because the present suit was filed on 24/2/92 immediately after the expiry of six months. The facts and circumstances narrated above and the conduct of the parties evidently show that the contention raised by the defendant that the lst plaintiff was not willing to perform his part of the contract cannot be accepted. 7. The learned counsel for the appellant submitted that there is no proof to show that the lst plaintiff has sufficient funds at the relevant time. The learned counsel also brought to my attention Ext.X1, which is a copy of the statement of accounts maintained by the lst plaintiff. It is true that Ext.X1 statement of -8- A.S.No.398/97 accounts shows that sufficient funds were not available in the bank account at the relevant time. The basic and important question to be considered is whether the lst plaintiff was ready and willing to perform his part of the contract. Therefore, the paramount consideration is not whether the funds are available in a bank or not; but whether the party is able to raise the funds for payment to the defendant. The 2nd plaintiff as PW1 testified before the court below that he was prepared to make the balance payment. PWs.4 and 5 are the persons who contacted the defendant during February 1992 and requested him to execute the sale deed. The cross-examination by the defendant did not shake the credibility of the said witnesses. In the plaint also there is a pleading which will go to show that after receipt of Ext.A4 notice, the lst plaintiff and his people approached the defendant and requested for execution of the sale deed. It has come out in evidence that since the lst plaintiff was out of the country, he asked his uncle and others to contact the defendant and to request -9- A.S.No.398/97 him to carry out the terms of the contract. What emerges from the said conduct is that during the period fixed for execution of the sale deed, the lst plaintiff was ever ready and willing to perform his part of the contract. The trial court also noted the fact that even prior to Ext.A2 agreement, the lst plaintiff was employed in Gulf country. That also is an indication which will go to show that the lst plaintiff is having means to pay the balance sale consideration. 8. Having proved that the plaintiffs were ready and willing to perform their part of the agreement and to take assignment as agreed, I do not find any reason to decline the relief of specific performance. The learned counsel for the appellant argued that it would not be just, fair and equitable to grant a decree for specific performance. Learned counsel relied on the decisions reported in N.P.Thirugnanam v. Dr.R.Jagan Mohan Rao and others (1995) 5 SCC 115), Kanshi Ram v. Om Prakash Jawal and others (AIR 1996 SC 2150), His Holiness Acharya Swami -10- A.S.No.398/97 Ganesh Dassji v. Shri Sita Ram Thapar (AIR 1996 SC 2095), A.C. Arulappan v. Ahalya Naik (2001)6 SCC 600) and Aliyas v. Aboobacker (2006 (4) KLT 282). The grant of a decree for specific performance rests on equitable consideration. The relief can be granted in a case where the court below is of the view that it is just, fair and equitable to do so. Having found that the lst plaintiff was ever willing to perform his part of the contract and having found that the defendant has committed breach of the agreement and evaded execution of the sale deed, this Court finds no reason to deny the discretionary relief of a decree for specific performance. The trial court also examined the question as to whether the plaintiffs are entitled to the discretionary relief of specific performance. The trial court also took the view that this is a fit case where the plaintiffs are entitled to a decree for specific performance. The oral evidence tendered by PWs.4 and 5 as observed earlier, also proved that it is the defendant, who refused to assign the property to the lst plaintiff. No equitable -11- A.S.No.398/97 grounds are made out by the defendant so as to deny the discretionary relief of specific performance. The trial court has examined all the facts and attendant circumstances in detail. This Court also elaborately heard the counsel on both sides and perused the records and finds that no sustainable grounds are made out by the appellant for interference. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -12- A.S.No.398/97 HARUN-UL-RASHID,J. -------------------------- A.S.NO.398 OF 1997 -------------------------- JUDGMENT 5TH JANUARY, 2010