Kerala High Court
Kuttan vs Unnikrishnan on 20 February, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945
RFA NO. 645 OF 2010
AGAINST THE JUDGMENT AND DECREE DATED 27.02.2010 IN
O.S.NO.300 OF 2006 OF THE ADDITIONAL SUB COURT, N.PARAVUR
APPELLANTS/DEFENDANTS:
1 KUTTAN, S/O.KANNOOTTY, THURUTHIL,
VADAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE.
2 DILEEP, S/O.KANNOOTTY
THURUTHIL, VADAKKUMPURAM MURI,
CHENDAMANGALAM VILLAGE.
BY ADVS.
SRI.K.S.DILIP
SMT.P.J.FLONY
SMT.G.LEKHA
SRI.SAJU N.A.
SRI.A.S.SAJUSH PAUL
SMT.E.K.SAJNA
SMT.UMA.G.KRISHNAN
RESPONDENT/PLAINTIFF:
UNNIKRISHNAN,
S/O.BALAKRISHNAN, THARAMMEL,, PARAVOOTHATA MURI,
PARAVOOR VILLAGE-683 513.
BY ADVS.
SMT.JEENA JOSEPH
SRI.G.D.PANICKER
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SATHISH NINAN, J.
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R.F.A.No.645 of 2010
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Dated this the 20th day of February, 2024
JUDGMENT
The decree for specific performance of an agreement
for sale is under challenge by the defendants.
2. Ext.A1 agreement dated 17.08.2005 was entered
into between the plaintiff and the defendants. As per
Ext.A1, 59 cents of property was agreed to be conveyed
by the defendants to the plaintiff for a sale
consideration of Rs.11,250/- per cent. An amount of
Rs.1,00,000/- was paid on the date of Ext.A1 towards
advance sale consideration. The period fixed for
performance was six months.
3. According to the plaintiff, on 05.11.2005 he
paid a further amount of Rs.2,00,000/-, which was
endorsed on the agreement. In spite of repeated demands,
the defendants are evading performance of the contract
and accordingly, the suit is filed.
4. The defendants though admitted execution of
Ext.A1 agreement, denied the payment of Rs.2,00,000/- on
05.11.2005. The endorsement allegedly made on Ext.A1
agreement by the 2nd defendant was denied. It was
alleged that the signature therein is forged. It was
contended that the plaintiff was not ready and willing
to perform the agreement, which has resulted in its
breach. Accordingly, the defendants prayed for dismissal
of the suit.
5. The trial court found that the endorsement on
the reverse of Ext.A1 agreement is genuine, and granted
a decree for specific performance.
6. I have heard the learned counsel on either side.
7. The points that arise for determination are;
i) Is the finding of the trial court with regard to the payment
of an amount of Rs.2,00,000/- on 05.11.2005, sustainable on the
materials?
ii) Is the finding of the trial court with regard to the
readiness and willingness of the plaintiff, based on evidence?
iii) Is exercise of discretion by the trial court in granting a
decree for specific performance liable to be interfered with?
8. The endorsement on the reverse of Ext.A1
agreement with regard to payment of further advance of
Rs.2,00,000/- reads thus;
"Cheque No.191504 EDC Bank dated 17.11.2005 received for
Rs.2,00,000/-" "(signature)".
"Cheque amount received on 05.11.2005 and cheque returned"
"(signature)."
The endorsement is signed by the 2 nd defendant alone.
Since he denied the signature, the plaintiff chose to
call for the opinion of a handwriting expert. The
opinion of the expert is marked as Ext.C1 and the expert
was examined as CW1. The expert has opined that the
disputed signature is that of the 2 nd defendant himself.
Though CW1 was cross examined at length, he could not be
discredited. The defendants admit that the plaintiff had
given a cheque for Rs.2,00,000/-. But it is their case
that the cheque was got returned by the plaintiff on an
understanding that the amount thereunder would be paid
in a couple of days. The 2 nd defendant did not obtain
any document in the said regard. The case as set up by
the 2nd defendant does not inspire confidence. No
prudent person would have done like that. On the
entirety of the circumstance, it can only be found that
the trial court was right in having held that the
plaintiff had paid a further amount of Rs.2,00,000/- on
05.11.2005.
9. The defendants denied the readiness and
willingness of the plaintiff. Ext.A1 agreement
stipulated that, within a period of six months from the
date of agreement the plaintiff is to call upon the
defendants for the execution of the conveyance. The
relevant recital reads thus;
"ഇന മ തൽആറ മ സക ല വധ കക രണ പ ർട
ഒന പ ർട യ അറ ക ന സമ പ ർട യ
ച ലവ ൽ എഴ ത ക ന ത റ ധ രത ൽ ളയ
പപര പല ൾ ന ർപ&ശ ക ന ആള കള യ
പപര പല അഡ) ൻസ+കഴ ച ബ ക ത റ വ ല തര ന
സമ ത റ ന ത തന യക ള യമന ഒന പ ർട
സമത ച ര ക ന."
10. The period fixed for performance expired on
17.02.2006. There is no material to find that the
plaintiff had approached the defendants within the
period requiring performance of the agreement. Though it
is claimed that there were oral demands, it remains
unsubstantiated. Ext.A2 notice issued by the plaintiff
to the defendant requiring performance of the agreement
is dated 01.07.2006, i.e., after a period of five months
from the date of expiry of the period fixed for
performance.
11. In the written statement it was specifically
contended that the plaintiff did not have sufficient
amounts with him to pay the balance sale consideration.
Taking it to be that the total advance sale
consideration paid by the plaintiff is Rs.3,00,000/-,
the balance sale consideration payable would be
Rs.3,63,750/-. To substantiate that the plaintiff was in
possession of sufficient funds, he produced Exts.A4, A5
and A6 Bank passbooks. But Ext.A4 shows that, from
March, 2000 onwards, the balance in that account is only
around Rs.1,000/-. Ext.A5 passbook reveals that, in
January, 2006, i.e., just before the expiry of period
for performance of Ext.A1, the balance available is
approximately Rs.1,00,000/- and in March, 2006, the
balance available is only around Rs.2,500/-. Going by
Ext.A6 passbook, during the relevant period an amount of
Rs.2,00,000/- was available in deposit. Evidently, the
amounts in all the three accounts, i.e., Exts.A4 to A6,
during the relevant period taken together would not have
been sufficient to make payment of the balance sale
consideration of Rs.3,63,750/-. In the cross examination
of PW1 he would depose that, though he had purchased one
or two other properties, he had to sell them because of
financial difficulties. The absence of demand by the
plaintiff during the period stipulated in Ext.A1 seeking
performance of the contract coupled with the evidence on
record, probabilises the defendants' contention that the
plaintiff was not ready and willing to perform Ext.A1
agreement. In order to get a decree for specific
performance, the plaintiff is bound to prove that, ever
since the date of execution of Ext.A1 agreement, he was
continuously ready and willing to perform the agreement.
In Jugraj Singh v. Labh Singh AIR 1995 SC 945, the Apex Court
held that the continuous readiness and willingness at
all stages from the date of agreement till the date of
hearing of the suit require to be proved. It is the
mandatory requirement under Section 16(c) of the
Specific Relief Act, 1963 that, in order to obtain a
decree for specific performance, the plaintiff is bound
to plead and prove his continued readiness and
willingness to perform the agreement.
12. The trial court omitted to take note of the
evidence and circumstances as above, while entering a
finding on the readiness and willingness of the
plaintiff. On the materials, it could only be concluded
that the plaintiff has failed to prove his readiness and
willingness to perform the agreement and hence, he is
not entitled for a decree for specific performance.
13. It has been found that, the plaintiff has,
apart from the Rs.1,00,000/- paid on the date of Ext.A1
agreement as advance sale consideration, paid a further
amount of Rs.2,00,000/- towards sale consideration. The
plaintiff is entitled to get back the said amount of
Rs.3,00,000/- with interest. On the facts and
circumstances of the case, I deem it appropriate to
allow the plaintiff to recover the amount with interest
at the rate of 12% per annum on Rs.1,00,000/- from
17.08.2005 till 05.11.2005(the date of payment of 2
lakhs), and on Rs.3,00,000 from 05.11.2005 till the date
of filing of the suit, namely, 15.07.2006. The plaintiff
shall be entitled for 9% interest from the date of suit
till the date of decree and thereafter, at the rate of
6% per annum.
In the result, the appeal is allowed. The decree
and judgment of the trial court is set aside. The
plaintiff is granted a decree for recovery of
Rs.3,00,000/-, with interest at the rate of 12% per
annum on Rs.1,00,000/- from 17.08.2005 till 05.11.2005,
and on Rs.3,00,000/- from 05.11.2005 till
15.07.2006(date of suit), and thereafter, at the rate of
9% per annum from the date of suit till the date of
decree, and at 6% per annum from the date of decree till
realisation, charged on the plaint schedule property and
from the defendants personally. The plaintiff shall be
entitled for the proportionate costs throughout. The
amount deposited by the plaintiff pursuant to the trial
court decree shall be returned to the plaintiff.
Sd/-
SATHISH NINAN, JUDGE
yd
