Kerala High Court
Omana vs Denny Abraham George on 21 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
RFA NO. 296 OF 2009
AGAINST THE JUDGMENT DATED 30.08.2008 IN OS NO.693 OF 2007
ADDITIONAL SUB COURT-II,ERNAKULAM
APPELLANT/DEFENDANT:
OMANA,
W/O LATE LAKSHMANAN,
AGED 62 YEARS, RESIDING AT SIMLA BHAVAN,
THANTHONNITHURUTHU,MULAVUKADU P.O.,
MULAVUKAD VILLAGE, ERNAKULAM DISTRICT.
BY ADV.
SRI.JOBY JACOB PULICKEKUDY
RESPONDENT/PLAINTIFF:
DENNY ABRAHAM GEORGE,
S/O ABRAHAM GEORGE,
AGED 32 YEARS, RESIDING AT KANJIRAPPALLIL,
NJALKAMKARA, SOUTH KALAMASSERY, THRIKKAKARA NORTH
VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.
BY ADV.
SRI.VADAKARA V.V.N.MENON
THIS REGULAR FIRST APPEAL HAVING COME UP FOR
HEARING ON 03.04.2024, THE COURT ON 21.05.2024
DELIVERED THE FOLLOWING:
R.F.A. No. 296 of 2009
-:2:-
MARY JOSEPH, J.
-----------------------
R.F.A. No. 296 of 2009
-----------------------
Dated this the 21st day of May, 2024
JUDGMENT
The appeal on hand is filed by the defendant challenging
the judgment passed by Sub Court, Ernakulam (for short 'the
trial court') in O.S. No.693/2007.
2. Appellant is the defendant in the Suit against whom a
decree for specific performance of the contract was passed by the
trial court. The respondent in the appeal on hand is the plaintiff
in the above Suit.
3. For the sake of convenience, the parties to this appeal
will hereinafter be referred to as the plaintiff and the defendant
in accordance with their status before the trial court.
4.The appellant in the appeal is the defendant. O.S. No.
693/2007 was filed by the plaintiff seeking for a decree for
specific performance of an agreement for sale executed among
himself and the defendant. As per the averments of the plaintiff
in the plaint in the Original Suit, an agreement for sale of 10
cents of plaint schedule property, comprised in Survey Nos.402
and 401/2 of Mulavukad Village alongwith an old building
situated there was entered among the parties on 19.09.2005
agreeing to sell those for a consideration of `68,500/- per cent.
A sum of `1,50,000/- was paid as advance as on date of
execution of the agreement for sale. It was averred in the plaint
that the defendant could not perform the terms agreed to be
performed by her as per the agreement for sale and therefore
she requested the plaintiff for enlargement of the time period
from three months stipulated therein and the plaintiff accepted
the same. It was averred that the plaintiff was ready and willing
to perform his part of the agreement for sale. It was also
averred that the entire consideration for the proposed sale was
also paid and the defendant accepted the same. Most of the
payments have been made by the plaintiff and accepted by the
defendant after the period of 3 months stipulated in the
agreement for sale and that itself indicate that time was not the
essence of the agreement for sale.
5. It is further averred in the plaint that `1,50,000/- was
paid as advance sale consideration on the date of execution of
the agreement itself, `30,000/- to the son of the defendant on
24.11.2006 as instructed by her, `1,50,000/- by cash and
`2,50,000/- by account payee cheque respectively on 25.11.2006
and 21.012.2006. It was averred furthermore that the plaintiff
was informed by the defendant and her son about their difficulty
to shift from the property proposed to be sold, due to their
inability to purchase a property and construct a building for
residence, since the money paid by the plaintiff could not be fully
utilised for that purpose and also paucity of funds. They jointly
requested for a loan of `5,00,000/- in addition to the balance
amount of `1,05,000/- outstanding towards sale consideration
as per the agreement for sale.
6. The defendants convinced the plaintiff that the money
was demanded to expedite the purchase of the property
negotiated to purchase, construct a building therein for
residential purpose and to shift thereto. The defendants agreed
to execute the sale deed and also to pay back the loan availed
with interest, within three months.
7. The plaintiff advanced `5,00,000/- to the defendant
after borrowing money from his mother and sister on
24.01.2007. He paid the balance sale consideration of
`1,05,000/- to the defendant from the money with him. The
receipt of that was also endorsed on the original agreement for
sale as was done in the case of receipt of money earlier. The
defendant failed to execute the sale deed despite receipt of the
sale consideration agreed by the agreement for sale and the loan
amount of `5,00,000/- and therefore a registered notice was
caused to be issued to the defendant on 21.04.2007, calling upon
her to execute the sale deed and also to pay back the amount,
`5,00,000/- received as loan with interest. Despite the receipt of
the notice, a reply dated 25.07.2007 was sent by defendants 1 &
2 jointly raising vague contentions. Mediators were sent at the
instance of defendants to the mother of the plaintiff on
15.05.2007 informing that the sale deed will be executed and the
loan amount will be repaid within a month. The mother
informed the plaintiff accordingly.
8. The defendant did not turn up to perform her part as per
the agreement for sale and thus flouted the terms agreed. The
plaintiff therefore was constrained to file the suit on hand and
another one seeking to realise `5,00,000/- with interest and
costs. Original Suit on hand was filed by the plaintiff seeking the
following reliefs :
"i) To pass a decree for specific performance of the
Agreement for sale dated 19.09.2005, directing the defendant
to execute the sale deed and to surrender possession of the
plaint property to the plaintiff within a time limit fixed by this
Hon'ble Court, failing which the plaintiff be allowed to take the
sale deed through court, allowing him to recover the plaint
property from the defendant or persons claiming under her.
ii) To pass a decree of permanent prohibitory injunction,
restraining the defendant from inducting strangers into the
plaint property or alter the present status of the same in any
form or create any new encumbrance with respect to the plaint
property or formulate any new fraudulent claim therein, so as to
affect in any manner the specific performance of the contract in
favour of the plaintiff.
iii) The plaintiff may be awarded his compensatory cost
allowing him to recover the same from the assets of the
defendant.
iv) To grant such other reliefs, which the plaintiff may ask for in
the course of the proceedings and which this Hon'ble Court
deems fit and necessary to grant in the interest of justice and
equity."
9. The defendant filed written statement totally denying the
averments raised by the plaintiff in the plaint. The execution of a
written agreement for sale with the plaintiff on 19.09.2005 is
admitted. It was contended that extension of time was never
sought by the defendant, that the plaintiff failed to fulfill his part
of the obligation as per the agreement for sale since he was not
having the required funds with him for paying the balance sale
consideration, that his idea was only to find out buyers for more
value than that was agreed with him, that the three months' time
was agreed in the agreement for sale for execution of sale deed
and therefore time was the essence of the contract, that her
son never received `30,000/- on 24.11.2006 as averred in the
plaint, that for the dealings her son had with the plaintiff she is
not responsible, that she is admitting the receipt of money
by her son only for the sake of repayment to the plaintiff, that
those sums were not received by her towards balance sale
consideration as per the terms agreed in the agreement for sale,
that she does not own a property other than the one proposed to
be sold as per the agreement for sale, that she entered into the
agreement under the premise that the plaintiff would pay the
entire sale consideration within three months from the date of
execution of the agreement for sale and that strict compliance of
the terms by the plaintiff was insisted by her since she had
entered into an agreement with a third party for purchasing the
latter's property and for constructing a house there. The plaintiff
failed to pay the balance sale consideration to fulfill his part of
performance as contemplated by the agreement for sale and that
caused the defendant to make requests on several occasions to
pay the balance sale consideration and to execute the sale deed.
10. It was contended that the plaintiff was dragging the
performance of the part to be performed by him as per the terms
of the agreement for sale and that she was ready and willing
always to perform her part as per the agreement for sale. The
plaintiff was seeking time to pay the balance sale consideration
for reasons best known to him. Due to laches and negligence on
the part of the plaintiff, she could not raise or pay the balance
sale consideration to purchase the property negotiated with
another party and she was also made to face the threat from him
to withdraw from the agreement for sale executed with him after
paying `80,000/- as compensation. Thereafter, the land value
has been raised 5 to 8 times. Thus the defendant was
incapacitated to purchase a property in the locality. She has
never borrowed `5,00,000/- from the plaintiff, that the plaint
schedule property is the only item of property belongs to her, and
that after expiry of three months fixed in the agreement for sale
she is not liable to execute the sale deed.
11. Therefore the defendant admitted borrowal of
`1,50,000/- and `2,50,000/- by her son from the plaintiff.
According to her, those payments were not received by her
towards balance sale consideration and that she was always
ready and willing to repay the amount received by her son.
According to the defendant, if the plaint schedule property is
ordered to be sold in favour of the plaintiff, she will be homeless
and thrown to the street. If the sale is ordered at the meagre
price fixed by the agreement for sale, she would be prejudiced,
and put to loss and irreparable injuries. Admittedly, notice issued
by the plaintiff was received by her, and a reply was sent to him.
According to her, there was no occasion when the defendant had
sent mediators to the mother of the plaintiff to inform that the
sale deed would be executed. The plaintiff was attempting to
flout the terms of the agreement for sale and therefore he is not
entitled to get any of the reliefs sought in the Original Suit. The
Original Suit therefore is only liable to be dismissed.
12. The plaintiff filed proof affidavit in lieu of examination in
chief and was also cross examined by the defendant as PW1. In
the proof affidavit filed the plaintiff had sworn to the entire
aspects of his case in the Original Suit strictly in tune with the
pleadings raised in the plaint. Exts.A1 to A10 were also marked
in evidence. Ext.A1 is the agreement for sale dated 19.09.2005
proposing to sell the plaint schedule property measuring 10
cents, by the defendant to the plaintiff for a price of `68,500/-
per cent. The plaintiff agreed to purchase the property within
three months from 19.09.2005 and paid `1,50,000/- as advance
sale consideration on the day itself.
13. It is pertinent to note from the pleadings of either
parties and the evidence adduced on it's basis that the parties to
Ext.A1 are attributing default to each other in performing the
part to be performed as agreed to by the terms incorporated in
Ext.A1.
14. As per Ext.A1 the total sale consideration for which ten
cents of property belonging to the defendant was agreed to be
sold is `6,85,000/-. It is recited in Ext.A1 that `1,50,000/- was
paid by plaintiff to the defendant as part payment to the
transaction of sale on 19.09.2005, the date on which Ext.A1 was
executed by the parties. As per the terms in Ext.A1, the balance
sale consideration is agreed to be paid by the plaintiff to the
defendant and the sale deed is agreed to be executed by the
defendant in favour of the plaintiff, within three months from
19.09.2005.
15. Therefore, the sale deed has to be executed by the
defendant to the plaintiff within three months. Or in other words
the parties have agreed the transaction of sale to be concluded
and the sale deed to be executed in favour of the plaintiff within
three months i.e the transaction ought to have been culminated
in execution of sale deed in a time bound manner. Therefore, as
the wordings of Ext.A1 stand, time was essence of the contract.
16. It is pertinent to note from the evidence tendered by
the parties that they are attributing liability to each other for
getting the three months fixed under Ext.A1, extended further.
According to the plaintiff, time was sought to be extended by the
defendant on account of her health issues. According to the
plaintiff the defendant has fallen unhealthy due to rheumatism
and therefore requested the plaintiff for extension of time for
performance of her part as per Ext.A1. The defendant denied the
above version of the plaintiff, but, plaintiff was unable to
establish it. Therefore, the version tendered by the plaintiff is
only to be discarded being devoid of merits.
17. Admittedly, application for getting encumbrance
certificate as well as location sketch was laid by the plaintiff at
Village Office, Mulavukad only on 27.12.2005 i.e. after
18.12.2005, on expiry of the three months' period on 18.12.2005
stipulated in Ext.A1 for execution of the sale deed. Therefore,
every reason is there to convince this Court
that the defendant who has to perform the part of handing over
of the relevant documents relating to her title and possession
failed to do so in a reasonable time, within three months from
19.09.2005. Application for obtaining the document itself was
found made after three months from 19.09.2005 i.e the period
within which the proposed transaction of sale was agreed to be
completed and the sale deed executed by the defendant in favour
of the plaintiff. Therefore, laches on the part of the defendant in
performing her part of the contract to hand over the documents
pertaining to the property and thereby to convince the plaintiff of
her title and possession of the property proposed to be sold, its
extent and that it is free from all sort of liabilities. As per Ext.A1,
only when the plaintiff is convinced of the above, he is bound to
pay the balance sale consideration to the defendant and the
defendant, to get the sale deed executed in favour of the
plaintiff.
18. According to PW1, he had paid the entire sale
consideration as agreed to in Ext.A1 to the defendant.
According to him, `1,50,000/- was paid on 19.09.2005, on the
date of execution of Ext.A1 itself. `30,000/- was paid to the son
of the defendant as requested by her on 24.11.2006. `1,50,000/-
was paid in cash and `2,50,000/- by way of account payee
cheque to the son of the defendant as directed by her. The
balance of `1,05,000/- due towards sale consideration was also
paid on 24.01.2007. According to PW1, on the basis of repeated
demands made by the defendant to his mother and sister, they
also advanced `5,00,000/- as loan to him on 24.01.2007.
According to PW1 endorsements were made on Ext.A1 at the
relevant time when amounts have been given as aforesaid and
the defendant has put her signature as well as thumb impression
underneath the endorsements.
19. When the plaintiff was cross examined by the
defendant, a suggestion was put that most of the amounts dealt
with in the endorsements were not given by the plaintiff to the
defendant but only to her son towards some other transactions
he had with the plaintiff. As DW1, the defendant has also stated
that cash worth `30,000/- and `1,50,000/- have also been paid
by the plaintiff to her son. An account payee cheque was also
given for `2,50,000/-and it was got encashed by the son of the
defendant through her account. Therefore, the defendant has
taken a specific stand that full sale consideration has not been
paid by the plaintiff to her and for that reason, she failed to
execute the sale deed within the time period agreed in Ext.A1.
The question relevant for consideration in the context is whether
time was essence of contract as per Ext.A1. Plaintiff averred that
it was, whereas the defendant, it was not. According to the
plaintiff, if time was essence of Ext.A1, after getting the balance
sale consideration, the defendant would have obtained the
documents pertaining to the plaint schedule property and handed
over those to the defendant in time so as to make him convince
that she has valid title over the property and it is free from
liabilities.
20. It is clear from Ext.A1 that the period fixed for
execution of contract was three months from 19.09.2005.
Therefore the reciprocal promises agreed to be performed as per
Ext.A1 have to be performed by the parties on or before
18.12.2005. It has been stated by the defendant as DW1 that
she had applied for obtaining the documents pertaining to the
property proposed to be sold only on 27.12.2005. Therefore, it is
convinced therefrom that the defendant had delayed the
performance of her part as per Ext.A1, which she ought to have
performed within the time so as to enable the plaintiff to pay the
balance sale consideration to her.
21. In the case on hand application for obtaining the
documents was made only on 27.12.2005, itself shows that the
defendant himself had delayed performing his part as per Ext.A1.
According to PW1, the defendant approached him and sought for
extension of six months more for execution of the sale deed and
it was extended till 15.06.2006. Thereafter the defendant
approached him again for extension stating that she developed
some rheumatic problems. Therefore, time was further extended
from 16.06.2006 till 31.12.2006. According to PW1, despite the
expiry of the period extended as above on consensus, the
defendant failed to execute the sale deed.
22. According to the defendant, the plaintiff failed to pay
the balance sale consideration as agreed and therefore, that the
sale deed was not executed by him in his favour. According to
her, it was the plaintiff who failed to perform his part as per
Ext.A1 and therefore, being at fault, a decree for specific
performance of contract is not liable to be granted in his favour.
23. Admittedly of the defendant, the application to obtain
the documents pertaining to the plaint schedule property itself
was made after three months, agreed for execution of the sale
deed. As per Ext.A1, the defendant was obliged to get all the
relevant documents pertaining to the property proposed for sale
immediately on executing it and receiving the advance sale
consideration. As DW1, the defendant has admitted receipt of
`1,50,000/- as advance sale consideration from the plaintiff on
19.09.2005, the date of execution of Ext.A1 itself. As per Ext.A1,
the defendant has to perform her further part. But she failed to
do so. Defendant had taken a stand that payments were
received by Mr.Anil Kumar, her son. But according to PW1,
endorsements were made on Ext.A1 at the time when payments
were made by him and below that signature and thumb
impression of the defendant were also obtained.
24. During cross examination the endorsements,
signatures and thumb impression were shown to DW1 and she
did not disown those, rather admitted. She had taken a specific
contention that the cheque given for `2,50,000/- was encashed
and availed by her son without her knowledge. But, admittedly it
was an account payee cheque and therefore, it could only be
encashed through her account and the money would only be
credited into her account. It cannot be availed by the son
without her knowledge. Moreover, the specific case of the
defendant during examination was that her son has been
authorised by her to do things on her behalf.
25. As already stated the balance sale consideration was
paid at different points of time and the endorsements regarding
those made overleaf Ext.A1 substantiate those. The signature
and thumb impression allegedly put by the defendant were not
denied by her. Therefore, it is established that payments made by
the plaintiff towards balance sale consideration even after the
period stipulated for execution of the sale deed has been
received by the defendant. It is indicated from the above
discussions that the time period stipulated in Ext.A1 for
performance was extended at the instance of the defendant and
that the payments made belatedly by the plaintiff were also
received by her. Therefore, the contention of the defendant that
time was of essence of Ext.A1 is only to be discarded, being
devoid of merits. It has been held by the Apex Court in
Swarnam Ramachandran (Smt) and Another v. Aravacode
Chakungal Jayapalan [2004 (8) SCC 689] relied on by the
learned counsel for the plaintiff that time is not presumed to be
essence of conveyance of immovable property and the burden of
proving whether time was the essence is upon the person
alleging that, and the opposite side has to rebut it and if he fails
to do so, the court is bound to accept the plea of the party
raising that time was not essence of the contract.
26. It has been further held in the case that the real test
to determine that question of fact is the intention of the parties
to the contract and it is the duty of the court to examine the real
intention of the party giving a notice stating that time is essence
of the contract, by looking at the facts and circumstances of the
case. In Gomathinayagam Pillai and others V. Palaniswami
Nadar [ AIR 1967 SC 868], it was held by the Apex Court as
follows:
"When a party to a contract promises to do a
certain thing at or before a specified time, or certain
things at or before specified times, and fails to do any
such thing at or before the specified time, the contract,
or so much of it as has not been performed, becomes
voidable at the option of the promise if the intention of
the parties was that time should be of the essence of
the contract".
"Fixation of the period within which the contract
is to be performed does not make the stipulation as to
time of the essence of the contract. It is true that
appellants 1 & 2 were badly in need of money, but they
had secured Rs.3006/- from the respondent and had
presumably tide over their difficulties at least
temporarily. There is no evidence that when the
respondent did not advance the full consideration they
made other arrangements for securing funds for their
immediate needs. Intention to make time of the
essence of the contract may be evidenced by either
express stipulations or by circumstances which are
sufficiently strong to displace the ordinary presumption
that in a contract of sale of land stipulations as to time
are not of the essence. In the present case there is no
express stipulation, and the circumstances are not such
as to indicate that it was the intention of the parties
that time was intended to be of the essence of the
contract. It is true that even if time was not originally
of the essence, the appellants could by notice served
upon the respondent call upon him to take the
conveyance within the time fixed and intimate that in
default of compliance with the requisition the contract
will be treated as cancelled."
27. The discussion hereinabove made would point out that
the intentions of the parties has to be gathered from the express
words used in the contract, the nature of the property which
forms the subject matter of the contract, the nature of the
contract itself and the surrounding circumstances.
28. In the case on hand Execution of Ext.A1 is not
disputed by the parties to it. It is nothing but an agreement for
sale incorporating the reciprocal promises from either parties and
those are required to be performed by them in turn. The party
who failed to perform her turn after receiving the advance sale
consideration is none other than the defendant and it is
established from the circumstances of the case. The defendant is
found to have accepted the payments made by the plaintiff
towards balance sale consideration. Therefore, the defendant
cannot be heard to contend that the parties to Ext.A1 had
intended to treat time as essence of contract. Moreover, being
an agreement for conveyance of immovable property, time will
not generally form essence of contract. The argument of the
learned counsel that time was essence of contract and for not
keeping the terms in Ext.A1 by not performing his part in time,
the plaintiff is not entitled to have obtained the decree of specific
performance is only to be repelled and this Court do so.
29. The defendant had taken a specific argument that for
want of plea with reference to readiness and willingness of
plaintiff in the plaint and proof regarding that, the suit for specific
performance is only to fail and the trial court ought not to have
granted a decree of specific performance in favour of the plaintiff.
30. Section 16 (c) of the Specific Relief Act, 1963 is
relevant to be extracted hereunder:-
"16. Personal bars to relief.--
Specific performance of a contract cannot be
enforced in favour of a person--
(a) xx xx
(b) xx xx
(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."
(emphasis supplied)
31. What is to be pleaded was specifically mentioned in
the portion emphasized thereunder. In the case on hand the
plaintiff's stand was that the entire sale consideration was paid
by him and by adducing cogent and reliable evidence he had
established that. He had examined PW2 and PW3 and thus
adduced reliable evidence to establish that the money was
availed from them for paying the balance sale consideration. The
evidence of PW2 and PW3 being creditworthy were also relied on
by the trial court and took a view that they had advanced money
to the plaintiff to meet the payment of money towards balance
sale consideration.
32. When the balance sale consideration was received by
the defendant, it is for him to execute the sale deed. Despite oral
demands and a written demand by a lawyer notice issued on
19.04.2007 he failed to execute it in favour of the plaintiff. On
the contrary, he sent a reply notice raising untenable
contentions.
33. The learned counsel for the defendant urged that the
defendant was an illiterate lady and the money paid by the
plaintiff were not received by her, but only by her son and
therefore, being a discretionary relief, this Court has to exercise
the discretion vested on it, in favour of the defendant. According
to him, the defendant was not holding any other property than
the one under consideration and the consideration agreed being
only meagre when considered in the backdrop of the passage of
a long time, the prejudice caused to the defendant has also to be
looked into.
34. It may be that the defendant is an illiterate lady. But,
as she admits during examination as DW1, her son was entrusted
to act in the proposed transaction of sale for and on her behalf,
she cannot deny receipt of money by him towards balance sale
consideration. When she has permitted her son to act on her
behalf in the transaction of sale, evenif the money was taken as
received by her son as alleged by her, she cannot take the
excuse of prejudice thereby. It was also established from the
evidence available that the defendant has another property.
Moreover, her allegation that she has suffered loss on account of
the delayed payment of money by the plaintiff in a different
transaction where she has agreed to purchase a property is not
established by evidence. What is available is only a contention
taken in that regard.
35. Apart from the above, the plaintiff has also established
by evidence as PW1 that he had purchased some property at the
behest of the defendant, to form courtyard to the plaint schedule
property on the latter's promise to sell it to him. Plaintiff has also
produced and marked the title deed executed in respect of the
property as well as the receipt evidencing payment of property
tax for that property respectively marked in evidence as Ext.A3 &
A4.
36. Therefore, this is a case where the plaintiff has
successfully proved before the trial court that he had paid the
entire sale consideration agreed by Ext.A1. He has also
established that the defendant has received the entire sale
consideration for him as agreed in Ext.A1. Therefore, the part
remained to be performed is to arrange for execution of the sale
deed in respect of the plaint schedule property. Plaintiff is found
to have suffered more hardships compared to that of the
defendant and for that reason itself this Court finds it appropriate
to exercise the discretion in the matter of grant of a decree for
specific performance in his favour.
37. The trial court has appreciated the evidence in the
proper perspective and found that the plaintiff has every right to
get the decree for specific performance in his favour. The trial
court has exercised the discretion in favour of the plaintiff and
decreed the suit. This Court being the appellate court is not
empowered to exercise the discretion on sound principles of law
enumerated under the Specific Relief Act, in a different manner.
The appeal is only to be dismissed.
In the result, the appeal is dismissed and the judgment and
decree is confirmed.
Sd/-
MARY JOSEPH,
JUDGE.
ttb/JJ
