Kerala High Court
Nedumpurath Basheer vs Veeraliyambath Andru Haji on 25 October, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:79473
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
RFA NO. 716 OF 2013
AGAINST THE JUDGMENT DATED IN OS NO.72 OF 2011 OF SUB COURT,
VADAKARA
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APPELLANTS/PLAINTIFFS:
1 NEDUMPURATH BASHEER,
S/O.POCKER HAJI, AGED 45 YEARS, BUSINESS, VELOOR AMSOM,
CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.
2 NEDUMPRATH ASHRAF,
S/O.POCKER HAJI, AGED 40 YEARS, BUSINESS, VELOOR AMSOM,
CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADVS.
SRI.K.M.FIROZ
SRI.S.KANNAN
SMT.K.S.SANGEETHA
SMT.S.SIMY
RESPONDENTS/DEFENDANTS:
1 VEERALIYAMBATH ANDRU HAJI @ ABDURAHIMAN,
S/O.MAMMAD HAJI, AGED 56 YEARS, BUSINESS, KUMMANKODE
AMSOM, NADHAPURAM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT-673 101.
2 VEERALIYAMBATH MARIYAM,
D/O.MAMMAD HAJI, AGED 60 YEARS, MATHATH HOUSE,
IYYAMGODE AMSOM, DESOM, VATAKARA TALUK. 673 101.
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RFA NO. 716 OF 2013 -2-
3 POTTANTEPUNATHIL AFSAL,
S/O.ANDRU HAJI, AGED 25 YEARS, BUSINESS, VELOOR AMSOM,
CHALAPRAM DESOM, NADHAPURAM P.O,
VATAKARA TALUK-673 101.
4 POTTANTEPUNATHIL ASMA,
D/O.ANDRU HAJI, AGED 27 YEARS, HOUSE WIFE, VELOOR
AMSOM, CHALAPRAM DESOM, NADHAPURAM P.O,
VATAKARA TALUK-673 101.
5 MULLARIKANDI NOORJAHAN,
W/O.ABDUL NAZAR, AGED 34 YEARS, HOUSE WIFE, VANIMEL
AMSOM, MAMBILAKKOOL DESOM, VANIMEL P.O,
VATAKARA TALUK-673 101.
BY ADVS.
P.B.KRISHNAN
SRI.A.RANJITH NARAYANAN
SRI.SHYAM PADMAN
SRI.S.K.SAJU
SMT.A.SIMI
ZUBAIR PULIKKOOL
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
25.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
JOHNSON JOHN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.716 of 2013
= = = = = = = = = = = = = = = = = =
Dated this the 25th day of October, 2024
J U D G M E N T
Sathish Ninan, J.
The suit for specific performance of an agreement
for sale was dismissed by the trial court. The
plaintiffs are in appeal.
2. On 19.11.2008, the plaintiffs entered into
Ext.A1 agreement for sale with defendants 1 and 2. Under
Ext.A1, defendants 1 and 2 agreed to convey the plaint
schedule property to the plaintiffs. The extent of the
property is 30 cents. The sale consideration fixed was
₹ 6,60,000/- per cent. On the date of Ext.A1 agreement,
an amount of ₹ 25 lakhs was paid towards advance sale
consideration. The period fixed for performance was six
months. As per Ext.A1, a further amount of ₹ 25 lakhs
was to be paid by the plaintiffs to defendants 1 and 2
on or before 05.12.2008.
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3. According to the plaintiffs, after the execution
of Ext.A1 agreement, it came to their knowledge that
there existed a suit in respect of the property as OS
159/2007, for partition. The suit, though was dismissed
on 31.03.2008, an appeal was pending against the decree
as AS 32/2008. Under such circumstances, on 05.12.2008,
which is the date fixed for payment of a further amount
of ₹ 25 lakhs, the plaintiffs handed over an undated
cheque for ₹ 25 lakhs to defendants 1 and 2. The same
was endorsed on Ext.A1 agreement. The appeal A.S.
32/2008 was disposed of on 07.08.2010. On coming to know
about the same, the plaintiffs issued Ext.A2 notice on
31.08.2010, demanding performance of the agreement.
Defendants 1 and 2 issued Ext.A5 reply stating that the
plaintiffs were not ready and willing to perform the
agreement and that at the instance of the plaintiffs
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they had executed Ext.A6 Sale Deed dated 16.05.2009,
with regard to a portion of the plaint schedule property
in favour of defendants 3 to 5. The suit was instituted
seeking specific performance of Ext.A1 agreement
ignoring Ext.A6 Sale Deed.
4. Defendants 1 and 2 filed a written statement
reiterating the stand taken in Ext.A5 reply notice. It
was contended that the plaintiffs did not have
sufficient funds to perform the agreement and that it
was under such circumstances that they issued a cheque
for ₹ 25 lakhs on 05.12.2008.
5. The trial court found that the plaintiffs were
not possessed of sufficient funds to go ahead with the
transaction. The explanation given by the plaintiffs
that the non-payment of further advance of ₹ 25 lakhs on
05.12.2008, was due to the pendency of AS 32/2008, was
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negatived. It was also held that the plaintiffs had
entered into Ext.B1 agreement for sale in respect of
one-half of the property with strangers, and it was
pursuant to Exts.A1 and B1 that Ext.A6 Sale Deed was
executed. It was further held that under Ext.B1
agreement the plaintiffs received an amount of ₹ 65
lakhs, and hence under equity, they could not claim
return of the advance amounts paid.
6. We have heard Sri.K.M.Firoz, learned counsel for
the appellants-plaintiffs, Sri.P.B.Krishnan, the learned
Senior Counsel for respondents 1 and 2 and Sri.Shyam
Padman learned Senior Counsel for respondents 3 to 5.
7. The points that arise for determination are :-
(i) Is the finding of the trial court with regard to the readiness
and willingness of the plaintiffs sustainable on the evidence?
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(ii) Is the application filed by the appellants as IA.1/2024,
seeking amendment of the plaint to incorporate a prayer for return
of the advance sale consideration liable to be allowed?
(iii) Does the decree and judgment of the trial court warrant
any interference?
8. As per Ext.A1 agreement for sale, the plaintiffs
were required to pay a further advance amount of ₹ 25
lakhs on or before 05.12.2008. According to the
plaintiffs, after entering into Ext.A1 agreement they
came to know about the suit, and the appeal therefrom,
pending in respect of the property. Therefore, instead
of paying the said amount of ₹25 lakhs, a cheque for the
said amount was entrusted with defendants 1 and 2. The
amount was to be paid only after disposal of the appeal.
The defendants would on the other hand contend that the
plaintiffs were not possessed of sufficient funds to pay
the amount, consequent to which the cheque was
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entrusted, and that the pendency of the appeal had
nothing to do with the same.
9. The entrustment of the cheque on 05.12.2008, has
been endorsed on the reverse side of the first page of
Ext.A1. The endorsement reads thus :-
"Cu I-cm-dnse 'A' ]mÀ-«nbpw 'B' ]mÀ-«nbpw X-½nð F-gp-Xn H-¸n-«v A-
Uzm³-kv sIm-Sp-¯Xpw A-Uzm³-kv In-«n-b-Xpam-b Xm-sg ]-«n-I-bnð
tNÀ-¯ h-kv-Xp-hn-s\ kw-_-Ôn-¨v \m-Zm-]p-cw ap³-kn-^v tIm-S-Xn-
bnð O.S 159/2017 þmw \-¼-dm-bn D-ïm-bn-cp-ó hy-h-lm-cw 2008 amÀ-¨v
31þmw Xo-¿-Xnb-s¯ hn-[n {]-Imcw 'A' ]mÀ-«n-bp-sS tImS-Xn sN-e-hp-
k-ln-Xw X-cp-hm³ Ið-¸n-¡p-Ibpw sN-bv-Xn-cn-¡póp.
{]-kvXp-X I-cm-dv {]-Im-cw Un-kw_À 5þmw Xn-¿-Xn-¡v ap-¼mbn
'B' ]mÀ«n 'A' ]mÀ-«n-¡v sIm-Sp-t¡ï 2500000-- (C-cp]-¯n A-ôv e£w)
cq-]-bn-te¡v 'B' ]mÀ-«n-bp-sS t]-cn-ep-Å \m-Zm-]p-cw s^-U-dð t_-
¦nse '598026' \-¼À sN¡v 'A' ]mÀ-«n-¡v C-óv In-«n t_m-[y-am-hp-Ibpw
sN-bv-Xn-cn-¡póp. {]-kvXp-X sN-¡v 2500000 (C-cp]-¯n A-ôv e-£w)
cq-] tI-jv B-bn sIm-Sp-¡p-ó-tXm-Sv IqSn 'A' ]mÀ«n 'B' ]mÀ-«n-¡v Xn-cn-
¨v sIm-Sp-¡m\pw Xo-cp-am-\n-¡p-Ibpw \n-Ý-bn-¡p-Ibpw sN-bv-Xn-cn-
¡póp."
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Evidently, though the decree in OS 159/2007, has been
referred to, it has not been stated that handing over of
a cheque in lieu of payment of ₹ 25 lakhs is on account
of the pendency of the appeal against the decree. On the
contrary what is stated is that, on payment of ₹ 25
lakhs the cheque will be returned. If the pendency of
the appeal was the reason for handing over of the
cheque, and the same was to be returned after disposal
of the appeal, there was no reason why the same would
not have been stated in the endorsement. What the
endorsement says is that, when cash is paid the cheque
is to be returned. This suggests that the reason for
such an arrangement was the non-availability of funds
with the plaintiffs.
10. The above has significance when considered
along with the evidence adduced by the plaintiffs with
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regard to the availability of funds. Exts.A7 to A12 are
the statements of Bank accounts produced by the
plaintiffs. Ext.A7 account statement relates to the
period from 19.07.2007 to 12.12.2007. As per the same as
on 23.07.2007, the balance available was only ₹ 1,395/-.
Ext.A8 statement relates to the period from 16.12.2008
to 08.01.2009. As per the said account, as on
19.12.2008, the amount available in the account was only
₹ 25,500/-. Though on 07.01.2009 an amount of ₹20 lakhs
is seen deposited in the account, the same has been
withdrawn on the very same date. Therefore, it is
evident that the plaintiffs were not possessed of
sufficient funds to make the further payment of ₹ 25
lakhs.
11. There is yet another circumstance available to
negative the plea that the non-payment of the further
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advance of ₹ 25 lakhs on 05.12.2008, was for the reason
of pendency of the appeal. Admittedly, Ext.B1 is an
agreement entered into between plaintiffs 1 and 2 and
two strangers. The said agreement was entered into on
02.04.2009. Under Ext.B1, the plaintiffs have agreed to
assign a portion of the property covered under Ext.A1
agreement. In Ext.B1 the period fixed for performance is
up to 10.04.2009. This is in spite of the factum of
pendency of the appeal. It would show that the
plaintiffs were intending to proceed ahead with the
agreement forthwith notwithstanding the pendency of the
appeal, AS 32/2008.
12. Under Ext.A1 agreement, the period fixed for
performance was six months, i.e., up to 19.05.2009. The
bank account statements produced by the plaintiffs do
not reveal that the plaintiffs were possessed of
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sufficient funds during the relevant period. They have
no case that they had intended to raise amounts from
other sources. If such was their case, it ought to have
been specifically pleaded. In U.N.Krishnamurthy(since
Deceased)Thr. Lrs. v. A.M.Krishnamurthy (AIR 2022 SC 3361), the Apex Court
held,
"To aver and prove readiness and willingness to perform an
obligation to pay money, in terms of a contract, the plaintiff would
have to make specific statements in the plaint and adduce evidence
to show availability of funds to make payment in terms of the
contract in time. In other words, the plaintiff would have to plead
that the plaintiff had sufficient funds or was in a position to raise
funds in time to discharge his obligation under the contract. If the
plaintiff does not have sufficient funds with him to discharge his
obligations in terms of a contract, which requires payment of money,
the plaintiff would have to specifically plead how the funds would be
available to him. To cite an example, the plaintiff may aver and
prove, by adducing evidence, an arrangement with a financier for
disbursement of adequate funds for timely compliance with the terms
and conditions of a contract involving payment of money."
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The plaintiffs had no case that they did not possess
sufficient funds, and they intended to raise it from
other sources.
13. Therefore, the evidence on record establishes
that the plaintiffs were not ready to perform Ext.A1
agreement. The relief of specific performance was
rightly declined by the Court.
14. The only relief sought in the plaint is for
specific performance of the agreement. There is no
alternative relief for return of advance sale
consideration. Before this Court the appellants have
filed an application as IA 1/2024, seeking amendment of
the plaint, to incorporate the prayer for return of
advance sale consideration. Section 22 of the Specific
Relief Act permits amendment of the plaint to be made at
any stage of the proceedings, to incorporate a prayer
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for return of advance. The section reads thus,
"[s 22] Power to grant relief for possession, partition, refund of earnest
money, etc.-
(1) Notwithstanding anything to the contrary contained in the Code
of Civil Procedure, 1908 (5 of 1908), any person suing for the specific
performance of a contract for the transfer of immovable property may, in
an appropriate case, ask for -
(a) possession, or partition and separate possession, of the
property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or made to him, in case his
claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall
be granted by the court unless it has been specifically claimed:
Provided that where, the plaintiff has not claimed any such relief in
the plaint, the court shall, at any stage of the proceedings, allow him to
amend the plaint on such terms as may be just for including a claim for
such relief.
(3) The power of the court to grant relief under clause (b) of sub-
section (1) shall be without prejudice to its powers to award compensation
under section 21."
Therefore, the restrictions under Order VI Rule 17 of
the Code of Civil Procedure and the proviso thereto will
not hamper the grant of amendment. The plaintiffs are
entitled to have the plaint amended to incorporate the
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relief of return of advance sale consideration, even at
the appellate stage. We find that the amendment is
liable to be allowed.
15. Before the trial court though there was no
prayer for return of advance sale consideration, the
court entered a finding that, under Ext.B1 agreement the
plaintiffs had obtained an amount of ₹ 65 lakhs from the
other party and that since they have received more than
the advance amount paid under Ext.A1, there is no equity
in seeking for return of the advance sale consideration.
We are of the view that the trial court has transgressed
the scope of the suit in holding so. Such a finding was
unnecessary, on the reliefs prayed for in the suit.
Whether a claim for return of the advance sale
consideration paid, which is a contractual or a
statutory right, could be declined by merely deserving
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that it is not an equitable claim, is yet another
aspect. Anyhow, in the absence of a relief seeking
return of the advance, such consideration was
unnecessary. The said finding is liable to be set aside
and we do so.
16. It is true that defendants 1 and 2 have raised
a contention that Ext.A6 Sale Deed was executed by them
in favour of defendants 3 to 5 as instructed by the
plaintiffs. Defendants 3 to 5 are the children of one
among the intended purchasers under Ext.B1 agreement.
According to defendants 1 and 2, under Ext.B1 agreement,
the plaintiffs had agreed to convey one-half of the
property to the two purchasers. Ext.A6 Sale Deed was
executed for 1/4 rights over the property as the nominee
of the plaintiffs. With regard to the remaining 1/4
rights, though a sale deed was prepared, it was not
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executed since the plaintiffs failed to pay the sale
consideration for the conveyances. It is their
contention that the advance sale consideration paid by
the plaintiffs is liable to be adjusted towards the
total consideration. Such a contention was raised even
in Ext.A5 reply notice and also in the written
statement. However, no evidence was adduced by the
defendants. None of them were examined. Of course, there
having been no prayer for return of the sale
consideration, they possibly considered it unnecessary
to adduce any evidence with regard to their claim over
the advance sale consideration.
17. Since we have held that the plaintiffs could be
permitted to amend the plaint and incorporate the relief
of return of the advance sale consideration, it is
necessary that the defendants be granted an opportunity
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to file additional written statement. Both sides could
be permitted to adduce evidence in relation to the said
claim. For the said purpose the suit is liable to be
remanded to the trial court. The finding of the trial
court that the plaintiff is not entitled for the relief
of specific performance is only to be affirmed, and we
do so.
In the result, this appeal is allowed. While
affirming the finding of the trial court declining the
prayer for specific performance, the decree and judgment
of the trial court dismissing the suit will stand set
aside. IA 1/2024, seeking amendment of the plaint will
stand allowed. Parties to appear before the trial court
on 15.11.2024. The plaintiffs shall carry out the
amendment before the trial court on or before
22.11.2024. The trial court shall grant opportunity to
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the defendants to file additional written statement and
permit the parties to adduce evidence.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
JOHNSON JOHN
JUDGE
kns/-
//True Copy//
P.S. To Judge
