Kerala High Court
M.M.Joseph(Died)* vs Sadanandan on 7 November, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
2024:KER:82903
AS NO. 361 OF 2002
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
AS NO. 361 OF 2002
AGAINST THE ORDER/JUDGMENT DATED 25.01.2002 IN OS NO.224
OF 1997 OF SUB COURT, PALAKKAD
PETITIONERS/APPELLANTS:
1 M.M.JOSEPH *(DIED)
AGED 62 YEARS, S/O.MATHU,
RESIDING AT MAZHUVANCHERRY HOUSE,
VADAKKANTE KOTTIL,
MAYILAMPULLI, PUDUPPARIYARAM VILLAGE,
PALAKKAD DISTRICT.
*ADDL.PETITIONERS 2 TO 9 IMPLEADED
2 ANNAKUTTY
W/O.LATE M.M.JOSEPH,
AGED 72 YEARS,
MAZHUVANCHERRY HOUSE, VADAKKANTEKADU,
VELIKKAD, MUNDUR, PUTHUPPARIYARAM VILLAGE,
PALAKKAD TALUK, PALAKKAD DISTRICT
3 M.J. BABY
S/O. LATE M.M. JOSEPH,
AGED 53YEARS,
MAZHUVANCHERRY HOUSE, VADAKKANTEKADU-NOCHIPULLY,
PUTHUPPARIYARAM VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT
4 M.O.MERCY
W/O.M.PAUL, D/O.M.M.JOSEPH,
KOVILPARAMBIL HOUSE, KADAMBIDY,
CHITTUR, PALAKKAD
5 ROSILY JOSEPH ALIAS ROSILY SAVIO
AGED 48 YEARS, D/O M.M JOSEPH,
PALLATHUKUNNEL, MANJUSHA BHAVAN,
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AS NO. 361 OF 2002
2
PEERUMEDU, IDUKKI DISTRICT
6 MRS.DAISY CHACKO
D/O M.M JOSEPH, AGED 40 YEARS, KADUTHANAM,
THAZHAEKODE WEST, MALAPPURAM DISTRICT
7 MRS.MINI BENNY
D/O M.M JOSEPH, AGED 37 YEARS,
THIRUMALAYIL, PARAPUHA, IDUKKI DISTRICT.
8 JINI JOSEPH
D/O M.M JOSEPH, AGED 32 YEARS,
DOMINICAN ASHRAM-80 FT ROAD, BANGALORE 560 038,
9 SHAJI JOSEPH
AGED 34 YEARS, S/O M.M JOSEPH,
MAYUILAMPULLY,NAMBULLIPURA,
MUNDUR, PALAKKAD
(ALL ARE REPRESENTED BY POWER OF ATTORNEY HOLDER,
M.J BABY, MAZHUVANCHERRY HOUSE,
VADAKKANTE KADU NOCHIPPALLY,
PUDUPPARIYARAM VILLAGE, PALAKKAD)
*(LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 9 VIDE
ORDER DATED 5/09/2008 IN IA 3713/2008)
*ADDL.PETITIONER NO.10 IMPLEADED
10 PAUL JOSEPH,
AGED 44 YEARS
S/O.LATE M.M.JOSEPH,
MAZHUVANCHERRY HOUSE, VADAKKANTEKADU,
VELLIKKAD P.O., PALAKKAD DISTRICT
PIN- 678592
*LEGAL HEIR OF THE DECEASED SOLE PETITIONER IS
IMPLEADED AS ADDL.PETITIONER NO.10 VIDE ORDER DATED
30/10/08 ON IA 4511/08.
BY ADV P.M.POULOSE
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AS NO. 361 OF 2002
3
RESPONDENTS/RESPONDENTS:
1 SADANANDAN, AGED 47 YERAS, S/O. BHASKARAN,
KENATHPARAMBA, KOPPAM VILLAGE, PALAKKAD DISTRICT.
2 PREMANATHAN
AGED 45 YEARS, S/O. BHASKARAN, KENATHPARAMBA,
KOPPAM VILLAGE, PALAKKAD DISTRICT.
3 SOWBHAGYAVATHY *DIED
AGED 43 YEARS, D/O. BHASKARAN, KENATHPARAMBA,
KOPPAM VILLAGE, PALAKKAD DISTRICT.
4 SAVITHRI
AGED 40 YEARS, D/O. BHASKARAN, KENATHPARAMBA,
KOPPAM VILLAGE, PALAKKAD DISTRICT.
5 KANCHANA, AGED 38 YEARS, D/O. BHASKARAN,
KENATHPARAMBA, KOPPAM VILLAGE, PALAKKAD DISTRICT
*ADDL.6TH RESPONDENT IMPLEADED
6 V.DIVAKARAN
AGED 66 YEARS, S/O.M.C.VELAPPAN,
RESIDING AT KANATHPARAMBA, KOPPAM VILLAGE,
PALAKKAD DISTRICT, PIN - 678 001.
*LEGAL HEIR OF THE 3RD RESPONDENT IS IMPLEADED AS
ADDITIONAL RESPONDENT NO.6 IN I.A. NO.1/2022 VIDE
ORDER DATED 12.02.2024.
BY ADVS.
V.R.KESAVA KAIMAL - R2 & R4
D.KRISHNA PRASAD - R1, R3 & R5
M.HARISHARMA - R1, R3 & R5
JOJI VARGHESE - R1 to R5
D.NARENDRANATH - R1, R3 & R5
M.S.KALESH(K/109/1997) - R6
HARISH GOPINATH(K/232/1999) - R6
R.S.KALKURA - R6
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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AS NO. 361 OF 2002
4
T.R. RAVI, J.
--------------------------------------------
A.S. No.361 of 2002
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Dated this the 7th day of November, 2024
ORDER
The appeal is filed by the plaintiff in a suit for a specific
performance being aggrieved by the denial of a decree for a
specific performance. The trial court has, by the impugned
judgment, decreed the suit in part by ordering the return of the
advance amount of ₹6,00,000/- which has been paid by the
plaintiff. The court has not granted interest on the said amount
and no reason is also forthcoming for denying the interest. The
short facts required are as follows:
2. By Ext.A1 agreement dated 05.07.1996, the defendants
agreed to transfer an extent of 72 Cents of land to the plaintiff.
The total consideration came to ₹14,76,000/-. On the date of the
agreement, a sum of ₹4,00,000/- had been paid. Subsequently, on
the date fixed in Ext.A1 for payment of a sum of ₹2,00,000/-, the
said amount was also paid. This fact is proved by the endorsement
in the Ext.A1 agreement. The time for completion of the sale was
11 months and the period was due to end on 05.06.1997. The
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above facts are admitted. Before the expiry of the period
stipulated in Ext.A1, the defendants sent Ext.A2 notice to the
plaintiff through their lawyer, alleging that the plaintiff was not
ready to pay the balance amount even though the defendants had
satisfied their part of the agreement and informing the plaintiff that
they are still willing to execute the sale deed. Even before receipt
of Ext.A2, the plaintiff sent Ext.B1 notice on 03.06.1997 expressing
his readiness and willingness to execute the contract. It is stated
in the notice that after having executed the agreement, the
defendants carried out agricultural activities on the property. The
plaintiff took exception to such behaviour, since the defendants had
received almost 50% of the amount due to be paid under the
contract. The notice says that the legal heirship certificate,
encumbrance certificate, possession certificate, tax receipt, the
order of the Land Tribunal regarding the purchase certificate, and
the death certificate of the defendants' father were required for the
purpose of execution of the sale deed. It is also stated that the
property must be measured. The notice specifically says that the
plaintiff is ready and willing to perform his part. It can be seen
from Exts.A2 and B1 that both sides were expressing their
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readiness and willingness to perform their part of the contract.
Ext.A3 is the reply sent by the plaintiff to Ext.A2 notice issued by
the defendants. The notice denies the receipt of documents relating
to the purchase of a 7 meter way for reaching the plaint schedule
property and the other documents, as claimed in Ext.A2. The
notice is dated 06.06.1997, one day after the date of expiry of the
period specified in Ext.A1. In the said letter also, the plaintiff
expresses his readiness and willingness. In reply to Ext.A3 notice,
the defendants sent Ext.A4 notice through their Lawyer on
19.06.1997, wherein it is claimed that land for putting up a 7 meter
wide road had already been purchased and a copy of the document
had been handed over. The notice refers to the notices dated
02.06.1997 and 03.06.1997 (Exts.A2 & B1). The notice states that
the defendants were willing to perform their part of the contract,
that none of the documents which were required by the plaintiff are
necessary for the execution of the sale deed, and that those are
not aspects that have been agreed upon in Ext.A1. It is alleged
that the attempt of the plaintiff is to gain time since there had been
a violation of the agreement on his part. It is also stated in the
notice that the notices issued by the plaintiff were only to get over
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the plaintiff's difficulty in arranging the necessary funds to
complete the contract. The notice further says that the amount
received as advance is adjusted towards the loss that has been
sustained by the defendants due to the non-performance of the
contract by the plaintiff. This was followed by another advocate
notice dated 14.07.1997 issued by the plaintiff to the defendants
wherein also it is stated that the plaintiff is ready and willing to
complete the sale.
3. The suit was filed immediately thereafter on 04.08.1997.
In the plaint also, the plaintiff has stated that he is ready and
willing to perform his part of the contract and there was no fault on
his part. It is contended that the defendants are not entitled to
forfeit the advance amount paid. Ext.A1 agreement stipulates that
the defendants shall hand over the necessary documents for the
execution of the sale deed 10 days prior to the date fixed in Ext.A1.
The plaintiff contends that the said condition had not been
complied with by the defendants. In the written statement, the
defendants admitted the execution of the Ext.A1 agreement and
the receipt of the sum of ₹6,00,000/- as stipulated in Ext.A1.
However, the rest of the contentions are denied. The defendants
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admit that there was a stipulation for handing over documents 10
days prior to the date for registration. However, there is no
statement that the said documents were handed over as agreed to
in Ext.A1. All that is stated is that ₹2,00,000/- was paid by the
plaintiff only after being satisfied that the defendants had provided
the way to the property. It is alleged that to the best of the
knowledge of the defendants, the plaintiff was not in possession of
the money required for completing the contract. It is alleged that it
was the duty of the plaintiff to fix the date of registration within the
period stipulated in Ext.A1 and intimate the defendants well in
advance to enable the defendants to make available the required
documents of title, possession certificate, and encumbrance
certificate. It is stated that no such intimation was received and
there was no necessity to arrange for the documents well in
advance. It is also contended that the plaintiff made additional
demands, which were not part of the contract, like the KLU order,
etc. The trial court considered the contentions and found that the
plaintiff was not willing to perform his part of the contract, and
there were laches on his part which disentitled him from getting a
decree for specific performance. The court found that the plaintiff
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was only entitled to the return of money.
4. There appears to be a mistake in the judgment insofar
as the issues that were raised for consideration. Issues relating to
a totally different suit wherein the validity of a 'Will' was in question
are seen incorporated in the judgment. However, I am ignoring the
said mistake in view of the fact that the real questions involved
have been considered by the court and that this appeal has been
pending in this court for the past 22 years. The trial court found
that time is not the essence of the contract as far as the sale of the
immovable property is concerned. The court also noted that the
defendants have no case that PW1 did not have sufficient funds. It
is also stated that the plaintiff had paid ₹6,00,000/- within the time
stipulated and he cannot be expected to go out of the contract and
lose his advance amount. The court also noticed the fact that no
document had been produced by the defendants to show that land
for the 7 meter wide way had been purchased as stipulated in
Ext.A1. The trial court referred to the decision of this Court in
Jayalakshmi v. Anil Kumar reported in (1996 (1) KLT 727),
wherein this Court had held that there is a requirement to aver and
prove that the plaintiff was always ready and willing to perform the
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essential terms of the contract and that the readiness and
willingness should be there throughout the life of the contract or till
a decree is passed by the court. After noticing the law regarding
readiness and willingness, the court found that the total
consideration is ₹14,76,000/- and a huge balance of ₹8,76,000/- is
still due to be paid. The court found that the defendants had
cleared the issues relating to agricultural problems and obtained a
possession certificate prior to the date fixed in the contract and had
applied for an encumbrance certificate on 04.06.1997 and obtained
the same on 09.06.1997 and had thus complied with their part of
the agreement and were ready and willing to perform their part of
the contract. Even going by what is stated, it is evident that the
encumbrance certificate was applied for one day prior to the date
fixed in the contract and was obtained only after the time stipulated
in Ext.A1. Another aspect that has been considered is the fact that
the defendants had sent a notice on 02.06.1997. The trial court
also found fault with the plaintiff for demanding the legal heirship
certificate.
5. It is stated in the judgment that no notice was issued by
the plaintiff to the defendants stating that he is ready to perform
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his part of the contract. This finding is apparently wrong since in
Exts.B1, A3, and A5, the plaintiff has specifically stated that he is
ready and willing to perform his part of the contract. Ext.B1 is a
notice issued prior to the expiry of the date fixed in Ext.A1. Except
for reiterating the contentions of the parties, there is no actual
consideration of the question whether the plaintiff was ready and
willing to perform his part of the contract, and what is relied on to
find against the plaintiff are facts that are not borne out by the
records. The court has also found that the suit was filed in 1997
and even after 4 years, the plaintiff was not ready and willing to
perform his part of the contract. There is absolutely no basis for
such a finding since the oral evidence is otherwise. Hence, I find
that, on facts, the finding of the trial court regarding the readiness
and willingness of the plaintiff is wrong.
6. The Counsel also relied on the judgment reported in
Ganesh Prasad v. Saraswati Devi and Others AIR 1982
Allahabad 47), Daivasigamani P. v. S.Sambandan (2022)
SCC Online SC 1391, Aloka Bose v. Parmatma Devi 2009 (2)
SCC 582, and Nathulal v. Phoolchand 1969 (3) SCC 120, in
support of his contentions.
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7. The counsel for the appellant relied on the judgment of a
Division Bench of this Court in Asha Joseph v. Babu C George
and Others 2022 (3) KHC 48. This court held therein that, the
absence of details in the plaint regarding the funds in the
possession of the plaintiff and the manner in which the plaintiff
intended to raise the funds are not fatal and are matters of
evidence. The court found that money need be produced only
when directed by the court, and all that was required was to
establish that the plaintiff had the capacity to raise the necessary
funds. In the said case, the Division Bench held that specific
performance being an equitable relief, the balance of equities has
also to be struck taking into account all the relevant aspects of the
matter, including the lapses which occurred and parties respectively
responsible therefor. The court held that before decreeing specific
performance it is obligatory for courts to consider any unfair
advantage to the plaintiff over the defendant, the extent of
hardship that may be caused to the defendant, whether the
enforcement would be inequitable, and to take into consideration
the totality of circumstances of each case . The court also found that
it is not necessary that in all cases where there has been an
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escalation of prices, the court should either refuse to pass a decree
for specific performance of a contract or direct the plaintiff to pay a
higher sum. In the case before the Division Bench, the defendant
had not pleaded any hardship or adduced any evidence to show
that it would be inequitable to order specific performance of the
agreement. However, the court found that settled law is that a
court dealing with the suit for specific performance of an
agreement for sale can impose, having regard to the delay in the
judicial process and the consequential escalation of the price of the
property, any reasonable condition including payment of an
additional amount by one party to the other while granting or
refusing a decree for specific performance. On the facts of the
case, noticing that 16 years had elapsed since the execution of the
agreement, the court directed the defendants to execute a sale
deed with respect to such extent of property that could have been
purchased for an amount of ₹10,00,000/- at the time of Ext.A2
agreement and instead of the total extent of 12 and odd Acres
involved in the said case, a decree was granted for about 2.23
Acres. The counsel for the appellant submitted that if the same
yardstick is followed in this case, the plaintiff will be entitled to a
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decree for around 30 Cents of property instead of the total of 72
Cents.
8. Adv. Sri V.R.K.Kaimal appearing for respondents 1, 2, 4
& 5 submitted that going by Section 16(c) of the Specific Relief Act
there is a requirement to aver and prove readiness and willingness
and the readiness and willingness should be there till the end of the
suit. It is submitted that all the necessary documents have been
provided by the defendants and it was the plaintiff who was
delaying the matter since the plaintiff did not have the required
funds. The counsel placed reliance on the judgments reported in
Janardan Das v. Durga Prasad Agarwalla [2024 KHC Online
6562], Azhar Sultana v. B.Rajamani and Others [2009 (17)
SCC 27], and Saradamani Kandappan and Another v.
S.Rajalakshmi and Others [2011 (12) SCC 18] in support of
the contention that the plaintiff was not ready and willing to
execute the sale deed. It is submitted that time was the essence of
the contract, and hence there was no obligation on the part of the
defendants to execute the sale deed after 05.06.1997, particularly
since the plaintiff did not take any steps for execution of the
contract.
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9. I have considered the evidence on record and the
arguments advanced by the counsel on either side. In Nathulal
(supra), the Hon'ble Supreme Court held that the purchaser need
not produce money or vouch a concluded scheme for financing the
transaction. In Ganesh Prasad (supra), the Allahabad High
Court held that a plaintiff in order to succeed in a suit for specific
performance must aver and prove that he has performed or has
throughout been prepared to do his part under contract and that
the said preparedness may not be mere verbal show of readiness,
but should be backed by means to perform his part of the contract
when called upon to do so. In Aloka Bose (supra), the Hon'ble
Supreme Court held that readiness and willingness was proved by
the vendee by paying earnest money and sending a notice
conveying her willingness and readiness to pay the balance sale
consideration which had been acknowledged by the defendant. In
Daivasigamani (supra), the Hon'ble Supreme Court held that,
the vendee, by issuing notices within a period of six months of the
agreement, calling upon the vendor to perform his part of the
contract, has shown his readiness and willingness to perform his
part of the contract and that was due compliance of Section 16(c)
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of the Specific Relief Act. The Court relying on the judgment in
Syed Dastagir v. T.R. Gopalakrishna Setty [(1999) 6 SCC
337], held that the compliance of readiness and willingness has to
be in spirit and substance and not in letter and form. The
principles laid down in the above said judgments would support my
finding that the trial court has gone wrong on its decision on the
readiness and willingness of the plaintiff. In Azhar Sultana
(supra), the Hon'ble Supreme Court held that readiness and
willingness of the plaintiff is a condition precedent for obtaining a
relief of grant of specific performance of contract. The said
judgment is not of much relevance since I have already found that
the plaintiff was ready and willing to perform his part of the
contract. In Saradamani (supra), the Hon'ble Supreme Court,
while considering the principle that time is not the essence of a
contract for the sale of immovable properties, opined that the
principle needs a revisit in view of the changed circumstances
arising from inflation and steep increase in price. The said
judgment does not say that specific performance cannot be
decreed in cases where the plaintiff has proved his readiness and
willingness. The opinion expressed by the Hon'ble Supreme Court
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would, however, be a factor to be considered while exercising
discretion in granting the decree for specific performance. In
Janardhan Das (supra), the Hon'ble Supreme Court reiterated
that the plaintiff should aver and prove his readiness and
willingness to perform the obligation to pay money in terms of the
contract, that the readiness and willingness of the plaintiff has to
be ascertained based on his conduct prior to and subsequent to the
filing of the suit as well as from the terms of the agreement and
surrounding circumstances and that any laxity or indifference or
failure to perform his part of the contract can be a ground to deny
the relief of specific performance. Regarding the discretionary
nature of granting specific performance, the Hon'ble Supreme Court
held that the discretion must be exercised judiciously and based on
sound principles, ensuring that the grant of specific performance is
just and equitable in the circumstances of the case.
10. In the case on hand, I have already found that the
plaintiff was ready and willing to perform his side of the contract.
He had already parted with Rs.6,00,000/- which is about 40% of
the total consideration payable. Even before the period fixed for
completing the sale was over, the plaintiff had sent notice to the
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defendants stating that he was ready and willing to perform his
side of the contract. The contention of the defendants that the
plaintiff was attempting to buy time by demanding certain
documents which had not been stated to be a requirement in
Ext.A1 agreement is not correct. The documents that were sought
for by the plaintiff are only documents which would be required for
the preparation of the draft sale deed and are not documents which
are totally unrelated to the contract. As such, no fault can be found
with the plaintiff for having requested such documents. Admittedly,
the agreement between the parties required the defendants to
acquire property for a 7 Meter wide road and to hand over all the
documents required for the sale 10 days prior to the date fixed for
execution. The defendants have no case that the documents were
handed over. The evidence on the above aspect is vague and
contradictory. At one place, it is stated that the documents were
shown to the plaintiff; at another place, it is stated that a copy was
handed over to the plaintiff; and at yet another place, it is stated
that the documents were not sent to the plaintiff. The three
versions stated above cannot go together. As held by the Hon'ble
Supreme Court in Prakash Chandra vs Angadlal 1979 (4) SCC
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393, the ordinary rule is that specific performance of the contract
is granted and it is denied only on equitable considerations and
where the circumstances show that award of damages is adequate
relief. The agreement was of the year 1996 and 28 years have gone
by. The extent involved is 72 cents of land and it will not be
equitable at this stage to grant a decree for the entire extent, in
view of the changed circumstances. So also the decree now
granted by the trial court for return of Rs.6,00,000/- without any
interest is also not equitable. The facts of this case are in a way
similar to the facts in Asha Joseph (supra) and I am of the
opinion that a relief similar to the one granted in the said judgment
would be equitable to both sides. In the said case, the Division
Bench directed execution of sale deed with respect to such extent
of property that could have been purchased for the amount which
had been paid as advance at the time of the agreement. In the
case on hand, an amount of Rs.6,00,000/- had been paid in 1996
itself. The rate fixed in the contract was Rs.20,500/- per cent. For
the amount of Rs.6,00,000/- paid as advance, the plaintiff could
have bought an extent of 29.27 cents at the rate of Rs.20,500/-
per cent.
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In the result, the appeal is allowed. The judgment and decree
of the court below are set aside. The suit is partly decreed, and the
plaintiff is granted a decree for specific performance relating to
29.27 cents out of the total extent of 72 cents which was agreed
upon as per Ext.A1. If the defendants fail to execute the sale deed
in favour of the plaintiff within a period of three months from the
date of receipt of a copy of this judgment, the plaintiff is entitled to
get the decree executed through court. The plaintiff will also be
entitled to realise the cost of the suit and the appeal.
Sd/-
T.R. RAVI
JUDGE
Pn
