IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 AS.No. 529 of 1996() ------------------------------ OS.43/1994 of SUB COURT, TIRUR .................... APPELLANT/PLAINTIFF IN THE COURT BELOW: ---------------------------------------------------------------------- KALARIKKAL PUTHUR MADATHIL RAMANADHAN, S/O.SAROJINI AMMA, EDAYUR AMSOM AND DESOM, TIRUR TALUK. BY ADV. SRI.K.RAMACHANDRAN, SRI.P.RAMACHANDRAN. RESPONDENTS/DEFENDANTS IN THE COURT BELOW: -------------------------------------------------------------------------------- *1. KALARIKKAL PUTHUR MADATHIL KOCHU LAKSHMI, D/O.KARTHIAYANI AMMA, “NISCHAYA”, NO.434-5TH CROSS-J.P. NAGAR, III PHASE, BANGALORE-560 078. *(DIED) 2. BHAVANI CHANDRASEKHARAN, D/O.KOCHU LAKSHMI, -DO- -DO-. 3. SWETHA, MINOR, 17 YEARS BY GUARDIAN MOTHER 2ND DEFENDANT BHAVANI, -DO- -DO- * FIRST RESPONDENT DIED. SECOND RESPONDENT IS RECORDED AS LEGAL REPRESENTATIVE OF THE DECEASED 1ST RESPONDENT, VIDE ORDER DATED 22/06/2010. BY ADV. SRI.MOHAN PULIKKAL, SRI.N.NAGARESH, SRI.SHAJI THOMAS PORKKATTIL. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.529 of 1996-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal by the plaintiff is against the refusal of the court below to grant specific performance of Ext.A2 evidencing a contract for sale, but only granting a decree for return of advance with only 6% interest. 2.The plaintiff's mother and first defendant are sisters. They have a brother Sathyanadapanicker, who is affectionately referred to as "Appettan". It appears that the first defendant,married to an officer in the Indian Air Force, was residing in Bangalore. The plaintiff's case is that agreeing to sell one half of her right in about 60 cents of land at the rate of Rs.500/- per cent, the AS529/96 -: 2 :- first defendant wrote Ext.A2 on 15.8.1992 after receiving an advance of Rs.10,000/- and that the first defendant thereafter refused to perform that contract for sale. Hence the suit. 3.The first defendant contended that the transaction was not as pleaded by the plaintiff and Ext.A2 was signed by her on a paper with certain scribblings, which was brought by the plaintiff and an amount of Rs.10,000/- was thrust by the plaintiff to the first defendant. She also pleaded that she was not in proper mental state following the demise of her son and after Ext.A2, her husband also died. She accordingly pleaded that she would lose her available wealth, if the agreement is found and enforced against her. 4.Before the court below, the plaintiff tendered evidence as P.W.1. and his father-in-law was examined as P.W.2. Ext.A1 is the registered partition deed under which the first defendant got title to the property. Ext.A2 is the document AS529/96 -: 3 :- evidencing the agreement. Exts.A4, A3, A5, A6 and A7, in that sequence, are letters written by the first defendant to her sister, the mother of the plaintiff. Ext.A8 is the notice sent by the plaintiff to the first defendant. Ext.A9 is the reply. 5.With the aforesaid materials, the court below concluded that Ext.A2 results in a contract for sale but was written in an unstamped paper. Therefore, it was impounded and the plaintiff remitted the stamp duty and penalty. Accordingly, that document was admitted in evidence as Ext.A2. Upholding Ext.A2 as a contract for sale, the court below found that though the said contract is one that stands, the discretion has necessarily to be exercised by refusing specific performance. This issue was specifically dealt with by the court below under Issue No.2. The court below found that even in cases where the agreements are found to be genuine and binding, the courts would look into the transaction from AS529/96 -: 4 :- the angle of equality and fairness in the contract and would exercise its discretionary jurisdiction of ordering specific performance only on being satisfied that in fairness, the discretion should tilt in favour of directing enforcement of the contract. In the case in hand, the court below noticed that even if Ext.A2 has been proved as a contract for sale in the teeth of the denial of the first defendant regarding the nature of the transaction, it was abundantly clear that the first defendant was under emotional pressure following the demise of her son and the health condition and later death of her husband. The court below also took the view that the first defendant's plea in her written statement that she had no other property to construct a house also has to be weighed in favour of refusing specific performance. The said findings on facts are not disputed in the appeal. The factum of the first defendant having lost her son some time before the transaction covered by Ext.A2 and that she lost her husband following AS529/96 -: 5 :- Ext.A2 are not matters in dispute. The learned counsel for the appellant drew our attention to Exts.A4, A3, A5, A6 and A7 letters and pointed out that it is not a case where the first defendant was trying to preserve her property from being sold, as contended by her, but it is a case of she trying to prefer to transfer it in favour of the brother Appettan. We have thoroughly gone through the letters in the chronological sequence, Exts.A4, A3, A5, A6 and A7. The said letters disclose that the first defendant was under fair amount of mental strain following the death of her son and the hospitalization of her husband (Ma.Nair - as she would call her husband, even according to the counsel), her nagging pain in the knee and other factors which made her swinging between different ideas about the future management of her life. We also find that the thrust in all the letters is regarding the property and it appears that whether it be the plaintiff's mother or her brother Appettan, their interest in relation to AS529/96 -: 6 :- the first defendant was more as to whom the first defendant would choose to give off the property. The letters tend to suggest that the first defendant was being unduly stressed emotionally, from different points to make a preferential choice as to whom she would give her share. There was no love left for her to depend upon amongst her siblings. With the aforesaid, we find that the discretion exercised by the court below is well in tune with Section 20 of the Specific Relief Act. The claim for equitable relief cannot be made as a matter of right even in cases where the first defendant has not adduced evidence. In the case in hand, we have found that the discretion has been properly exercised, even going by the documentary evidence brought on record by the plaintiff in the form of first defendant's letters. The courts would not grant the discretionary and equitable relief as a matter of course. The court is not bound to grant such relief merely it is lawful to do so. Such a discretion has to be exercised for valid and AS529/96 -: 7 :- sound reasons guided by judicial principles. With the materials on record, we are satisfied that the court below was properly addressed itself on to the facts and evidence and we do not find any ground to interfere on that count. 6.With the aforesaid, the learned counsel for the plaintiff also canvassed that with the passage of time, the amount of Rs.10,000/- which is ordered to be returned as the advance is only a very small amount when compared to the soaring land price. Per contra, the learned counsel for the legal representatives of the first defendant would contend that amounts have already been deposited before the court below immediately following the decree and there is no reason to disturb the finding in that regard. In the absence of any claim for compensation and without any pleading or proof in that regard, we will not be justified in making any such order in favour of the plaintiff. Be that as it may, we find that the plaintiff had claimed interest on the AS529/96 -: 8 :- advance amount at the 18% per annum in the plaint, in the event of the court passing a decree for return of the advance. That claim for interest is not footed on any contract between the parties. May be, the plaintiff would have been guided by the lending rate on the gilt-edged securities as were available at the time of payment, of which certain comments had been made even in the precedents laid by this High Court. Taking all relevant facts and circumstances into consideration, including the relationship between the parties, we deem it appropriate that the rate of interest to be paid on the advance to be returned in terms of the decree be 12% instead of 6% as awarded by the court below. 7.In the result, the appeal is partly allowed modifying the decree granted by the curt below as follows: i.The decree for return of advance with interest 6% will stand modified to the AS529/96 -: 9 :- effect that the rate of interest payable shall be 12% per annum instead of 6% as granted by the court below, from 15.8.1992, the date of Ext.A2 till date of payment. If any deposit has already been duly made, with notice, the interest at the modified rate shall be payable only till the date of such deposit. ii.The appellant will be entitled to proportionate costs in this appeal. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/1906 Spoke The matter has come up before us on an uncertainty as to what would be the proportionate costs that could be entered in AS529/96 -: 10 :- the decree following the judgment. We had awarded proportionate costs. This means that the costs will have to be determined on the basis of the extent of success in the appeal. The success in the appeal is a modification of the rate of interest. The effect of the judgment is that the appellant gets 6% interest in addition to what is covered by the trial court decree. The period during which such interest will run is from 15.08.1992 to the date of deposit. Therefore, the proportionate costs is the amount of interest accruing on the amount equivalent to 6% interest of Rs.10,000/- from 15.08.1992 to 22.06.2010, the date of the appellate decree. The decree will be drafted accordingly on the appellant furnishing a memo of costs to that effect. Ordered accordingly. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) 6th April, 2011. (S.S.SATHEESACHANDRAN, JUDGE) aks AS529/96 -: 11 :- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = A.S.529 of 1996-B = = = = = = = = = = = = = = = = = Judgment 22nd June, 2010. AS529/96 -: 12 :-