IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 AS.No. 329 of 1999(B) ------------------------------- OS.422/1994 of ADL.SUB COURT, THALASSERY ................................... APPELLANT/PLAINTIFF: ------------------------------- O.T.KRISHNA DAS, C/O.C.P.PRRABHATHA KUSUMAN, AGED 35 YEARS, BUSINESS, OTHAYAMMADATHU THAYHATHE VEEDU, CHERUKUNNU AMSOM DESOM, KANNUR. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/DEFENDANTS: ----------------------------------------- 1. KARYATH PACHAKUNHIKANNAN, S/O.CHOYYAN RAMAN, AGED 66 YEARS, BUSINESS, PAYHATHI AMSOM DESOM, P.O.KOTTALI, KANNUR DISTRICT. (DIED) 2. PANDAN VEETTIL LAXMANAN, S/O.POCKEN, AGED 59 YEARS, REAL ESTATE AGENT PUZHATHI AMSOM DESOM, P.O.KOTTALI, KANNUR DISTRICT. 3. POOTHATTA SANAL KUMAR, S/O.SREEDHARAN, AGED 39 YEARS, REAL ESTATE AGENT, PUZHATHI AMSOM DESOM, KANNUR TALUK. 4. CHOYYON POOTHATTA SAJEEVAN, S/O.SREEDHARAN, AGED 40 YEARS, NO OCCUPATION, PUZHATHI AMSOM DESOM, KANNUR TALUK. 5. PANDAN KIRANKANDY ARAVINDAN, S/O.LAXMANAN, AGED 27 YEARS, NO OCCUPATION, PUZHATHI AMSOM DESOM, KANNUR TALUK. S.A.NO.329 OF 1999 - 2 - 6. VIMALA VARMA, D/O.KERALA VARMA, W.O.GOPALAKRISHNA PILLAI “PRASANTHI” THOTTAKATTUKARA, ALUVA VILLAGE, P.O.ALUVA ALUVA TALUK, ERNAKULAM DISTRICT. 7. KOZHUMMAL CHOTTA T.KESAVAN, S/O.MADHAVI AMMA, CLERK, VELLORA AMSOM KANIPPAL DESOM, TALIPARAMBA TALUK. 8. K.S.VILSON, S/O.ANTONY DEVASSIA, ARANGOM AMSOM, NELLIPPARA DESOM, KANNUR DISTRICT. 9. S.GOPALAKRISHNA PILLAI, S/O.SREEDHARAN PILLAI, PRASANTHI BHAVAN, THOTTAKKATTUKARA, PRASANTHI BHAVAN, ALUVA VILLAGE, P.O. ALUVA, ALUVA TALUK, ERNAKULAM DISTRRICT. ADDL.10. GIRIJA, W/O.LATE KUNHIKANNAN, PACHA HOUSE, PUZHATHI AMSOM DESOM, POST KOTTALU, KANNUR DISTRICT. 11. DEEPTHI, D/O.LATE KUNHIKANNAN, DO. DO. 12. KEERTHI, D/O.LATE KUNHIKANNAN, DO. DO. 13. MRITHUL, S/O.LATE KUNHIKANNAN, DO. DO. 14. VYUKUL, S/O.LATE KUNHIKANNAN, DO. DO. (THE FIRST RESPONDENT DIED. ADDITIONAL RESPONDENTS 10 TO 14 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS PER ORDER IN IA 2717/05 DT.5.10.06) R1 BY ADV.SRI.A.MOHAMED MUSTAQUE R2 TO R4 BY ADV. SRI.P.M.PAREETH R6 & R9 BY ADV. SRI.MURALI PURUSHOTHAMAN R7 & R8 BY ADV.SRI.M.P.VIJAYAN SRI.V.RAMKUMAR NAMBIAR FOR R10 TO R14 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Raman & P.S.Gopinathan, JJ. ================================== A.S.No.329 of 1999 ================================== Dated this the 9th day of February, 2009. JUDGMENT Gopinathan, J. 1.The appellant is the plaintiff before the lower court. He instituted the above suit originally against the first respondent seeking a decree of specific performance in respect of 1.58 acres of property scheduled thereunder. It was pleaded that the first respondent and the appellant entered into Ext.A1 agreement dated 26-2-1993, whereby the appellant agreed to purchase the plaint schedule property for a consideration at the rate of Rs.2,500/- per cent and that the first respondent agreed to assign the plaint schedule property to the appellant for consideration mentioned above. While so, one Balakrishnan filed a suit as O.S.No.226 of 1993 seeking a decree of prohibitory injunction AS329/1999 -:2:- against the first respondent to restrain him from alienating the plaint schedule property. In the light of the institution of the suit, the appellant and the first respondent entered into a second agreement, which was marked as Ext.A2 dated 26-5-1993, whereby it was mutually agreed that Ext.A1 agreement would be performed within six months after the disposal of the suit and that in the event the suit could not be disposed within a year, the parties agreed to annul Ext.A1 agreement and the first respondent had further agreed to return the advance amount. 2.Alleging that, despite the disposal of the suit, O.S.No.226 of 1993, the first respondent had been evading the execution of the sale deed, the suit was instituted before the lower court seeking a decree for specific performance. As an alternative plea, the appellant had sought for a decree for refund of the advance amount with AS329/1999 -:3:- interest at the rate of 18% per annum. 3.The first respondent, in response to the summons issued, appeared before the lower court and inter alia contended that, the suit, O.S.No.226 of 1993, was not disposed within one year and that, as per Ext.A2, in case the suit was not disposed of within one year, the appellant was not entitled to get the sale deed executed and that he was only entitled to get back the advance amount and that the suit was part of harassment when the appellant came to know that the first respondent would dispose the property to other persons and prayed for dismissal of the suit. 4.The first respondent, on the other hand, sold 70 cents of the property to third parties. 82 cents out of the plaint schedule property was assigned to the appellant. Consequently, the plaint was amended impleading respondents 2 to 9 and also AS329/1999 -:4:- reducing the extent of the property to the remaining 70 cents. It was further pleaded that, though the extent of the property shown in Ext.A1 is one acre 58 cents, the actual extent of the property is only one acre 52 cents. 5.First respondent in his written statement contended that as per Ext.A2 unless the suit was disposed within an year, the appellant was entitled to get back the advance paid and not entitled to get the property assigned and that that the suit was not disposed within an year and that thus Exts.A1 and A2 had become unenforceable and that the first respondent alienated 70 cents of the property to third parties which is known to the appellant and that he is not entitled to a decree for specific performance and prayed for dismissal of the suit. 6.Respondents 2 to 4, in their written statement, AS329/1999 -:5:- denied the agreement in between the appellant and the first respondent and contended that the first respondent entered into an agreement with respondents 2 and 3 to sell the plaint schedule property by virtue of an agreement dated 24-3- 1994 and that on that date no agreement was in force between the appellant and first respondent and that thereafter the second agreement was executed after acknowledging more portion of the sale consideration and that in pursuance of the agreement dated 24-3-1994, 70 cents of the property was assigned and that the first respondent was liable to execute the sale deed in respect of the remaining portion of the property and that the appellant is not entitled to the decree sought for. 7.The sixth respondent contended that she is a bona fide purchaser of 19 cents and 11 cents of property from the second and fifth respondent AS329/1999 -:6:- respectively and that she was not aware of any agreement between the appellant and the first respondent. Ninth respondent is the power of attorney of the sixth respondent. 8.Respondents 7 and 8 contended that they are alienees under the third and fourth respondents in respect of 20 cents and 10 cents as per assignment deeds dated 28-7-1995 and 29-7-1995 respectively and were in possession and that they had made valuable improvements in the property and prayed for dismissal of the suit. 9.As many as 20 issues were raised and the parties were sent for trial. The appellant was examined as P.W.1 and Exts.A1 to A8 were marked. On the side of respondents, respondents 3, 6 and 8 were examined and Exts.B1 to B14 were marked. 10.Learned Subordinate Judge, on appraisal of the AS329/1999 -:7:- evidence, arrived at a conclusion that the first respondent had executed Exts.A1 and A2 and that the suit, O.S.No.226 of 1993, as contended by the first respondent, was not disposed of within an year after Ext.A2 and in view of the averments contained in Ext.A2, Ext.A1 agreement was nullified and hence the appellant is not entitled to a decree for specific performance. All the remaining issues were answered in favour of the appellant. The alternative relief sought for by the appellant was granted and a decree for realization of the advance amount with interest at the rate of 18% per annum was granted in favour of the appellant. 11.Assailing the decree and judgment declining specific performance, this appeal was preferred. 12.The point that arises for consideration is:- AS329/1999 -:8:- Whether the appellant is entitled to the decree for specific performance, as sought for. The point 13.A reading of Ext.A2 dated 26-5-1993 would show that the appellant was not prepared to wait indefinitely for the disposal of the suit, O.S.No.226 of 1993. It is evident that he is aware that normally it is not possible to have the disposal of the suit within a time frame. So he had been cautious to incorporate a provision in Ext.A2 that in the event the suit could not be disposed within one year, the agreement for sale would be treated as annulled and that the advance consideration should be refunded to the appellant. Learned Subordinate Judge had elaborately discussed the evidence and the wordings in Ext.A2 and arrived a conclusion that AS329/1999 -:9:- Ext.A2 is specific that in the event the suit could not be disposed on or before 26-5-1994, the agreement for sale would stand cancelled and the appellant is entitled for refund of the advance sale consideration. Ext.A2 does not envisage sale of property to the appellant in the event the suit was not disposed on or before 26-5-1994. Though either side had not adduced any evidence regarding the exact date of disposal of the suit, O.S.No.226 of 1993, it is admitted by the learned counsel for the appellant that the said suit was disposed only thereafter. According to the learned counsel for the appellant, there was an order of interim injunction against the first respondent from alienating the property and that was vacated within one year and so there was no impediment whatsoever in executing the sale deed as per the terms stipulated in Exts.A1 and A2. 14. We heard the learned counsel for the appellant AS329/1999 -:10:- in detail. He could not bring out any material to show that the suit, O.S.No.226 of 1993 was disposed within the time limit prescribed in Ext.A2, that is, 26-5-1994. So, we find that the suit, O.S.No.226 of 1993 was disposed only after 26-5-1994. We also find that the averments in Ext.A2 which are quoted by the learned Subordinate Judge in the judgment would show that, in the event the suit could not be disposed within one year, the appellant is not entitled to get the sale deed executed. But Exts.A1 and A2 agreements would stand terminated and the appellant is entitled only to get back the amount advanced. The learned counsel for the appellant could not point out any reason to find that the appellant is entitled to enforce the sale against the first respondent. In that circumstance, we find that the learned Subordinate Judge was right in declining the prayer for specific performance. AS329/1999 -:11:- 15.Having heard either side, we find two more reasons in not granting a decree for specific performance. First reason is that the remaining portion measuring 70 cents, which is the plaint schedule property after amendment of the suit, is in the possession of the other respondents. Though it was revealed that the alienation in favour of respondents 2 to 8 are subsequent to the institution of the suit, it could not be said that they are not bona fide purchasers, especially when Exts.A1 and A2 were not registered. The second reason is that the appellant had, in unambiguous terms, admitted that he is doing a real estate business and that Exts.A1 and A2 agreements were executed as part of the business transaction. Purchase of the plaint schedule property was not intended for the personal use of the appellant. In the above circumstances, even if the agreement could not be specifically performed, the loss that has to be AS329/1999 -:12:- sustained to the appellant is only loss of a part of his business and there is little material to show that the appellant had to suffer any damage due to the non-performance of the agreement. On the other hand, the appellant admitted in the box that a major portion of the plaint schedule property is in the possession of respondents 6 to 8. There is no whisper in the evidence of the appellant that they are not bona fide purchasers. So, it is to be presumed that they are bona fide purchasers as contended by them. Respondents 6 to 8 had made valuable improvements. In case a decree for specific performance is granted, the hardship and loss to be sustained to respondents 6 to 8 would be very high and definitely it would outweigh the loss to be sustained to the appellant in case decree for specific performance is declined. In the circumstances, we find that the lower court had correctly exercised its discretion and there is no good reason to AS329/1999 -:13:- interfere with the judgment and decree under challenge. Point found accordingly. In the result, the appeal fails. It is accordingly dismissed. In the peculiar facts and circumstances of the case, the parties are directed to suffer their respective costs. P.R.Raman, Judge. P.S.Gopinathan, Judge. sl. AS329/1999 -:14:- P.R.Raman & P.S.Gopinathan, JJ. ================================== A.S.No.329 of 1999 ================================== JUDGMENT Dated:9-2-2009