Kerala High Court
Saraswathy Amma vs Lissy Jose on 21 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
RSA NO. 541 OF 2016
AGAINST THE ORDER/JUDGMENT IN AS 40/2012 OF ADDITIONAL SUB COURT, IRINJALAKUDA
OS 692/2007 OF ADDITIONAL MUNSIFF COURT ,IRINJALAKUDA
APPELLANT/RESPONDENT/DEFENDANT:
SARASWATHY AMMA
AGED 59 YEARS
D/O. KURUMBAYIL VEETTIL, SARADAMMA, MURIYAD DESOM, MUKUNDAPURAM
TALUK.
BY ADVS.
SRI.ABDUL JALEEL.A
SMT.M.A.SULFIA
RESPONDENTS/APPELLANT/PLAINTIFF/RESPONDENT/DEFENDANT:
1 LISSY JOSE
AGED 50 YEARS, W/O. PALAICKAL JOSE, MURIYAD DESOM, MUKUNDAPURAM
TALUK.
2 SECRETARY
HOUSING CO OPERATIVE SOCIETY LTD., NO.R. 326, MANAVALASSERY
VILLAGE, MUKUNDAPURAM TALUK.
BY ADVS.
SMT.S.ANJUSHA
SRI.K.S.BHARATHAN
SRI.B.C.MENON
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2022, THE
COURT ON 21.10.2022 DELIVERED THE FOLLOWING:
R.S.A.No.541/2016 2
JUDGMENT
This R.S.A. has been directed against the judgment and
decree in A.S. No.40/2012 on the file of Additional Sub Court,
Irinjalakuda, which in turn arise out of the judgment and decree
in O.S. No.692/2007 on the file of Additional Munsiff's Court,
Irinjalakuda.
2. The suit is one for specific performance of agreement
for sale. The defendant is the appellant (parties would hereafter
be referred as per the status before the trial court). The plaintiff
and the defendant entered into an agreement for sale with
respect to the plaint schedule property having an extent of 5¾
cents in Muriyad Village of Mukundapuram Taluk on 02.09.2005
on a consideration of Rs.1 lakhs. Out of which Rs.58,000/- was
paid towards advance. The defendant agreed to receive the
balance consideration on or before 02.8.2006 and execute the
sale deed in favour of the plaintiff. The plaintiff issued registered
notice demanding the execution of sale deed on 02.08.2006 and
he was present before the Sub Registrar Office on the whole day
but the defendant did not turn up, hence the suit has been filed.
3. Defendant remained ex-parte. Plaintiff filed proof
affidavit and Ext.A1 to A3 were marked.
4. The learned Munsiff, on evaluating the evidence
adduced from the side of the plaintiff, taking into account the
elapse of 5½ years since the date of agreement, found that
consideration of Rs.1 lakh only, it is not just and equitable to
grant specific performance. Escalated value over the time is also
taken into account. Hence, on equitable considerations the
discretionary relief of specific performance is refused and
alternate relief of return of advance amount of Rs.58,000/- was
granted.
5. Dissatisfied with the judgment and decree passed by
the trial court, plaintiff filed A.S. No.40/2012 and the 1st
Appellate Court by the impugned judgment allowed the appeal
and ordered specific performance of the agreement on receiving
the balance sale consideration of Rs.42,000/- within two months.
It is also directed that if the defendant fails to execute the sale
consideration within two months, plaintiff can get sale deed
executed through the process of court on depositing sale
consideration within two months.
6. Against which the defendant approaches this Court in
second appeal. Notice was issued to the respondent. Lower court
records were called for and both sides were heard.
7. According to the learned counsel for the defendant,
defendant could not appear before the trial court and file written
statement and sought for remand of the matter for filing written
statement. It is contended that appellate court without
considering the contention of the appellant that sale
consideration is inequitable decreed the suit. It is contended that
no notice was served to the appellant at the trial stage. It is
further contended that Ext.A1 is forged document. It is also her
contention that there is no evidence to prove readiness and
willingness on the part of the plaintiff. Hence, according to her
this is a fit case in which the trial court has refused the specific
performance of contract and allowed the return of advance
amount. The 1st Appellate Court without any basis ordered
specific performance of a valuable property for meager amount.
8. The learned counsel for the plaintiff on the other hand
would contend that the defendant remained ex-parte. The
plaintiff filed proof affidavit in support of the pleadings in the
plaint and satisfied the 1st Appellate Court with regard to the
readiness and willingness to perform her part of contract and
hence there is no reason whatsoever to interfere with the
findings entered into by the 1st appellate court.
9. At the time of admission, this Court formulated the
following substantial question of law:
Was it on a wrong understanding of the
reasons given by the trial court the first
appellate court set aside the decree of the trial
court?
10. Following additional substantial questions of law are
also formulated:
(1) Whether the plaintiff established readiness
and willingness to perform her part of
contract as contemplated under Section 16(c)
of the Specific Relief Act, 1963?
(2) Whether the first appellate court acted legally
in exercising the discretionary relief of
specific performance in favour of the plaintiff?
11. According to the learned counsel for the appellant, the
plaintiff did not adduce any evidence to prove the readiness and
willingness to execute her part of contract and hence the court
below went wrong in reversing the judgment and decree passed
by the trial court refusing the specific performance of contract.
Learned counsel in this context drew my attention to Atma Ram
v. Charanjit Singh [AIR 2020 SC 3413 : 2020 (3) SCC 311 : 2020
KHC 6134] as well as Mukkani Fathima and Anr. v. Kundu Valappil
Fathima [AIR 2019 Ker. 38 : 2019 KHC 2295].
12. The contract in the present case between the parties
was on 02.09.2005, obviously before the Amendment Act, 18 of
2018. Section 16 of the Specific Relief Act, 1963 (in short, the
Act), specifies the circumstances in which the specific
performance of contract cannot be enforced, which, as stood
before the amendment, reads as follows:
Section 16: ....................
....................
(c): who fails to aver and prove that he has
performed or has always been ready and willing to
perform the essential terms of the contract which are to
be performed by him, other than terms the performance
of which has been prevented or waived by the defendant.
13. So, Section 16(c) of the Act expressly provides that
whoever approaches the court seeking the relief and failed to
aver and prove that he has performed or always has been ready
and willing to perform the essential terms of the contract which
are to be performed by him other than the terms of performance
of which has been prevented or waived by the defendant is not
entitled to get the relief. But the explanation (i) to clause (c)
further clarifies that where a contract involves the payment of
money, it is not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when so
directed by the court. Explanation (ii) provides that the plaintiff
must aver performance of, or readiness and willingness to
perform, the contract according to its true construction. So the
Act expressly provides that the plaintiff must aver the readiness
and willingness on his part to perform the contract in the plaint.
14. In Atma Ram, referred above, the Apex Court while
dealing with Section 16(c) and Section 20 of the Act has held
that, the fact that the petitioner chose to issue a legal notice and
the fact that the petitioner created an alibi in the form of an
affidavit executed before the Sub Registrar to show that he was
present before the Sub Registrar for the purpose of completion
of the transaction, within the time stipulated for its performance,
was not sufficient to conclude that the petitioner continued to be
ready and willing even after three years, when the suit was filed.
In that case it was also found that no explanation was
forthcoming from the petitioner for the long delay of three years,
in filing the suit, after issuing the legal notice. It is also held that
the conduct of a plaintiff is very crucial in a suit for specific
performance. Taking an overall facts and circumstances, the
Apex Court uphold the reversal of the decree of specific
performance granted by the trial court which has been upheld
and the High Court.
15. In Mukkani Fathima, referred above, a learned Single
Judge of this Court held that there was no specific averment
about the readiness and willingness in the plaint and no evidence
was let in to substantiate the fact that the appellant was having
funds with him or had the capacity to raise funds to pay the
balance sale consideration. It is also held that the discretion of
the court cannot be exercised in an arbitrary manner and it
should be sound and reasonable, guided by judicial principles of
law.
16. In Bal Krishna and Anr. v. Bhagwan Das (Dead) and Ors.
[AIR 2008 SC 1786 : (2008) 12 SCC 145 : 2008 (2) KLT SN 88
(C.No.102) SC] a two Judge Bench of the Apex Court held that
specific performance of a contract cannot be enforced in favour
of a person who fails to aver and prove that he has performed or
has always been ready and willing to perform the essential terms
of the contract which are to be performed by him. Explanation
(ii) to clause (c) of Section 16 of the Act further makes it clear
that the plaintiff must aver performance of, or readiness and
willing to perform, the contract according to its true
construction. The compliance of the requirement of Section 16(c)
is mandatory and in the absence of necessary averment in the
plaint and in the absence of proof of the same that the plaintiff
has always been ready and willing to perform his part of the
contract, a suit cannot succeed. It is also held that the readiness
and willingness of the plaintiff to perform the essential part of
the contract would be required to be demonstrated by him from
the institution of the suit till it is culminated into decree of the
court. It is also settled by various decisions of this Court that by
virtue of Section 20 of the Act, the relief for specific performance
lies in the discretion of the court and the court is not bound to
grant such relief merely because it is lawful to do so. The
exercise of the discretion to order specific performance would
require the court to satisfy itself that the circumstances are such
that it is equitable to grant decree for specific performance of
the contract. While exercising the discretion, the court would
take into consideration the circumstance of the case, the conduct
of parties, and their respective interests under the contract. It is
also held that no specific performance of a contract, though it is
not vitiated by fraud or misrepresentation, can be granted if it
would give an unfair advantage to the plaintiff and when the
performance of the contract would involve some hardship on the
defendant, which he did not foresee.
17. In Narinderjit Singh v. North Star Estate Promoters Ltd.
[AIR 2012 SC 2035 : (2012) 5 SCC 712 : 2012 (3) KLT SN 10
(C.No.12) SC] a two Judges Bench of the Apex Court held that
factum of readiness and willingness to perform the plaintiff's
part of the contract is to be adjudged with reference to the
conduct of the parties and the attending circumstances.
18. In Bhaskaran v. George Joseph [1988 (1) KLT 107] a
learned Single Judge of this Court while dealing with Section 16
of the Act, it has been held that in a suit for specific performance
the plaintiff has to allege his continuous readiness and
willingness to perform the contract. Readiness and willingness of
a person seeking performance of agreement where time is
provided for such performance means that the person claiming
performance has kept the contract subsisting with preparedness
to fulfill his obligations and accept performance when the time
for performance arrives. In that case plaintiff while examining as
PW1 has not stated in his chief examination that he was all along
willing to perform his part of the contract and defendant adopted
procrastinating tactics.
19. In Ouseph Varkey v. Jose [1993 (2) KLT SN 41
(C.No.43)] a learned Single Judge of this Court while dealing
with Section 16(c) of the Act held that Section 16(c) of the Act
makes the position clear that the specific performance of a
contract cannot be enforced in favour of a person who fails to
aver and prove that he has performed or has always been ready
and willing to perform the essential terms of the contract which
are to be performed by him.
20. In the present case, in the plaint, the plaintiff has
specifically averred about her readiness and willingness to
perform the contract. But the affidavit filed on 18.02.2011 is
silent about the readiness and willingness on the part of the
plaintiff in executing the agreement. The law laid down by the
Apex Court as well as by this Court would state unequivocally
that there should be averment and proof of readiness and
willingness to perform the essential terms of the contract.
21. The readiness and willingness of the plaintiff to
perform the contract is an essential part of the contract and it
should be demonstrated by him from the institution of the suit
till the culmination of it into decree of the court. In this case,
though there is averment with regard to the readiness and
willingness to perform the contract by the plaintiff in the plaint
the proof affidavit is silent with regard to her readiness and
willingness to perform the part of her contract. So this is a clear
case in which specific performance cannot be enforced legally as
per Section 16(c) of the Act. As per Section 20 of the Act the
relief of specific performance is discretionary and the court is
not bound to grant specific performance merely because it is
lawful to do so.
22. The proceedings of the trial court would go to show
that the defendant was set exparte on 21.12.2010 and service
was effected to the defendant through substituted service by
producing paper publication and she was set exparte. The
proceedings would further go to show that the suit came up for
evidence on 18.02.2011 and the plaintiff filed affidavit and
Exts.A1 to A3 marked and thereafter the suit was dismissed.
Subsequently, the suit was restored to file. Subsequently, plaint
schedule was incorporated by filing I.A.No.1625/2011 and
thereafter the suit was decreed as per the judgment dated
13.01.2012. The procedure so adopted itself is irregular. No
proof affidavit seen filed subsequent to the affidavit filed on
18.02.2011 and the trial court relying on the earlier affidavit
filed from the side of the plaintiff proceeded with and decreed
the suit allowing the plaintiff to realise advance amount.
However, after these long lapse of years, I do not think it just
and proper to remand the case also.
23. The trial court taken into account the fact that the
agreement is of the year 02.09.2005 and the period stipulated
was upto 02.08.2006 and only on 31.07.2006 plaintiff issued
notice to the defendant asking to execute the sale deed and the
suit was filed on 28.05.2007. Hence, trial court was of the view
that there is inordinate delay on the part of the plaintiff in
approaching the court. Trial court also considered the fact of
long delay of 5½ years since the date of execution of agreement
and sale consideration of Rs.1 lakh was found to be inequitable
to grant specific performance.
24. The learned Munsiff taking into the broad aspect of the
facts and circumstances refused to grant the specific
performance and granted the alternate relief of return of
advance money. But the first appellate court without any proper
analysis of the law and the facts especially the conduct of the
parties and the absence of any evidence with regard to the
readiness and willingness to perform the part of contract by the
plaintiff which is in clear violation of Section 16(c) of the Act
simply invoked the discretion and granted specific performance
quite contrary to the settled principles of law by the Apex Court
as well as this Court. Hence it is not sustainable either in law or
on facts.
In the result, the judgment and decree passed by the first
appellate court is hereby set aside and that of the Munsiff's court
is restored. In the facts and circumstances, parties shall bear
their respective cost. The amount, if any, deposited by the
1st respondent/appellant/plaintiff shall be returned to her.
Sd/-
M.R.ANITHA
SHG/SMF JUDGE
