Kerala High Court
Saseendran Nair vs Viswanathan Nair on 30 October, 2024
RSA No. 1057/2003
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
RSA NO. 1057 OF 2003
AGAINST THE JUDGMENT&DECREE IN A.S NO. 98/99 DATED 21.06.2003
OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF
THE JUDGMENT & DECREE DATED 09.10.1998 IN OS NO.298 OF 1996 OF SUB
COURT NEDUMANGAD
APPELLANT/RESPONDENT IN A.S/DEFENDANT IN O.S:
SASEENDRAN NAIR
S/O.KRISHNAN NAIR, RATHEESH BHAVANAM, KONGANAM,
PUTHUKULANGARA P.O., NEDUMANGAD.
BY ADV.M.P ASHOK KUMAR
RESPONDENT/APPELLANT IN A.S/PLAINTIFF IN O.S:
VISWANATHAN NAIR
S/O.NARAYANA PILLAI, BHAGAVATHY VILASAM, KONGANAM,
PUTHUKULANGARA, NEDUMANGAD.
BY ADVS.
S.BALACHANDRAN (KULASEKHARAM)
V.R.GOPU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
22.10.2024, THE COURT ON 30.10.2024, DELIVERED THE FOLLOWING:
RSA No. 1057/2003
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CR
JUDGMENT
1. The defendant in a suit for specific performance is the appellant.
This Court admitted the Regular Second Appeal on 28.11.2003
issuing notice on the following substantial question of law:
1. Whether the Lower Appellate Court was justified in granting
a decree for specific performance without considering the
circumstances under which the agreement was executed
and the hardship that may be caused to the appellant if the
document is to be executed as directed by the lower
appellate court?
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2. The respondent/plaintiff filed the suit for the specific performance
of Ext.A1 Agreement for sale dated 04.02.1995 by which the
defendant agreed to sell the plaint schedule property having 12
cents and the residential building therein to the plaintiff for a
consideration of Rs.80,000/-. The amount of advance sale
consideration received by the defendant as per Ext.A1 is
Rs.63,000/- and the period for execution of the sale deed was
four months. According to the plaintiff though he demanded
execution of the sale deed several times, the defendants
purposefully evaded the request; that plaintiff caused to send
Ext.A2 Lawyer Notice to the defendant demanding to execute
the Sale Deed; that the same was received by the defendant as
per Ext.A3 Acknowledgment Card; that the defendants did not
send any reply to Ext.A2; and that the plaintiff was present at
the Document Writer's office near Sub Registrar Office
Vellanadu on the day mentioned in Ext.A2 i.e;05.06.1995, but
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the defendant did not turn up; that the plaintiff is always ready
and willing to perform his part of the Agreement and the
defendant is wilfully refusing to execute the Sale Deed in favour
of the plaintiff after receiving the balance consideration.
3.The defendants opposed the suit prayers by filing Written
Statement contending, inter alia, that the defendants borrowed
Rs.28,000/- from the plaintiff four years back agreeing to repay
with interest at the rate of 60%; that after one year the defendant
paid Rs.40,000/- to the plaintiff; that according to the plaintiff
there was a still a balance of Rs.63,000/- due from the
defendant; that the plaintiff demanded acknowledgment of the
amount due to him and on his demand the defendant was forced
to execute Ext.A1 Agreement for sale though both parties were
not having any intention to treat it as an agreement for sale; that
the Panchayat Member was a Mediator and witness to the
agreement; that the defendant never agreed to sell the plaint
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schedule property for Rs.80,000/- that the defendant never
received Rs.63,000/- from the plaintiff; that the property will
fetch more than Rs.3 lakhs; that the defendant is residing in the
building in the property with family and that the defendant is
willing to pay Rs.63,000/- with interest.
4. After considering the evidence adduced by the parties, the Trial
Court passed Judgment and Decree refusing specific
performance of Ext.A1 Agreement and allowing the plaintiff to
realise Rs.63,000/- with interest at the rate of 12% per annum
from the date of suit till the date of decree and at the rate of 6%
per annum thereafter with proportionate costs from the
defendant and also by sale of plaint schedule property.
5. The plaintiff filed A.S.No.98/1999 before the First Appellant Court
and the First Appellate Court allowed the appeal with costs and
in supersession of the judgment and decree passed by the Trial
Court, decreed the suit allowing the plaintiff to get specific
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performance of Ext.A1 agreement for sale by directing the
plaintiff to deposit Rs.17,000/- before the Trial Court within a
month and give notice of the deposit to the defendant, directing
the defendant to execute the sale deed in favour of the plaintiff
with regard to the plaint schedule property and the building
therein within a period of two weeks on receipt of notice of
deposit, failing which allowing the plaintiff to get the sale deed
executed with respect to the plaint schedule property in his
favour through court in accordance with law.
6. I heard the learned counsel for the appellant, Sri. M. P. Ashok
Kumar, and the learned counsel for the respondent, Sri. S.
Balachandran Kulasekharam.
7. The learned counsel for the appellant contended that the material
averments as required under Section 16(c) of the Specific Relief
Act is absent in the plaint. The learned Counsel invited the
attention of the Court to Form No.13 in Appendix A CPC and
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contended that the plaint ought to have contained the material
pleadings as provided in the said Form. Section 141 CPC
mandates strict compliance of the procedure provided in the
Code, and as such, in the absence of material pleadings as
required under Form No.13, the suit is liable to be dismissed.
The Trial Court failed to frame the issue with regard to the
readiness and willingness on the part of the plaintiff to perform
his part of the Ext.A1 Agreement. The First Appellate Court
granted a decree allowing the specific performance of Ext.A1
Agreement without considering the escalation of price of the
property agreed to be sold. The decree could not be given on
the basis of the Ext.A1 Agreement as the same is in violation of
Section 17(f) of the Registration Act for want of registration. The
decree for recovery of the advance amount could not be granted
in the absence of any prayer for the same as required under
Section 21(5) of the Specific Relief Act.
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8. The learned counsel for the appellant cited the decision of the
Hon'ble Supreme Court in U.N. Krishnamoorthi through LRs.
v. A.M. Krishnamoorthy [2022 (3) KLJ 779] in which it is held
that in a suit for specific performance of a contract, the court is
required to pose unto itself the question of whether the plaintiff
has all along been and still is ready and willing to perform his
part of the contract as envisaged under Section 16(C) of the
Specific Relief Act.
9. The learned counsel cited the decision of this Court in Asha
Joseph v. Babu C. George & Ors. [2022 (3) KHC 48] to
substantiate the point that before decreeing specific
performance it is obligatory to the court to consider whether by
doing so any unfair advantage would result for the plaintiff over
the defendant, the extent of hardship that may be caused to the
defendant and if it would render such enforcement inequitable
besides taking into consideration the totality of the
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circumstances of each case; and that specific performance
being an equitable relief balance of equity has also to be struck
taking into account all the relevant aspects of the matter
including the latches which occurred and parties respectively
responsible therefore.
10. The learned counsel cited the decision of the Hon'ble Supreme
Court in Saradamani Kandappan and Anr. v. S. Rajalakshmi
& Ors. [(2011) 12 SCC 18] in which it is held that laws, which
may be reasonable and valid when made, can with passage of
time and consequential change in circumstances become
arbitrary and unreasonable. If the same principle is applied, in
the case of Ext.A1 Agreement it could be said that the
enforcement of the said Agreement at this distance of time
would be unreasonable.
11. The learned counsel cited the decision of the Hon'ble Supreme
Court in Ramakrishnan v. P.M. Muhammad Ali [2022 (7) KHC
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170 (SC)] in which it is held that there must be specific issue
framed on the readiness and willingness on the part of the
plaintiff in a suit for specific performance and before giving any
specific finding the parties must be put to notice; that the object
and purpose of framing the issue is so that the parties to the suit
can lead the specific evidence on the same.
12. The learned counsel cited the decision in N. Khosla v.
Rajalakshmi & Ors. [(2006) 3 SCC 605] and argued that an
unregistered agreement is not admissible in evidence.
13. The learned counsel cited the decision of the Hon'ble Supreme
Court in Desh Raj & Ors. v. Rohtash Singh [(2023) 3 SCC
714] to substantiate the point that recovery of the advance
amount shall not be granted by the court unless it has been
specifically claimed.
14. On the other hand, the learned counsel for the
respondent/plaintiff contended that the First Appellate Court is
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perfectly justified in granting a decree for specific performance.
The defendant advanced untenable contentions to delay and
deny performance of Ext.A1 Agreement, the execution of which
is admitted by the defendant. The contention that Ext.A1
Agreement is executed as a security for loan amount is
disbelieved by the Trial Court and the First Appellate Court and
there is no perversity in such finding. This is a case where major
portion of the sale consideration is paid on the date of execution
of Ext.A1 Agreement itself. The plaintiff has been deprived of
the property since the year 1995. Though Ext.A2 Lawyer Notice
was sent to the defendant no Reply was sent in answer to the
same presumably because the defendant did not have any valid
contention in the matter. Even though issue with respect to the
readiness and willingness of the plaintiff to perform the contract
is not framed by the Trial Court, the said question was
specifically considered by the Trial Court in the light of the
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pleadings and evidence in the case. There is material averment
in the plaint that the plaintiff is ready and willing to perform his
part of the contract as required under Section 16(c) of the
Specific Relief Act. The correct form of pleadings in the case of
suit for specific performance provided in Appendix A is not Form
13. It is Form 47 and Form 48 which are provided for suits for
specific performance. S.141 of the CPC is not the relevant
provision with respect to the applicability of the Forms in
Appendix A. Order VI Rule 3 of CPC is the relevant provision
with respect to the form of pleadings provided in Appendix A.
Order VI Rule 3 provides that the forms in Appendix A when
applicable and when they are not applicable forms of the like
character, as nearly as may be, shall be used for all pleadings.
The verbatim reproduction of the form is not required. Ext.A2
Lawyer Notice was produced along with the plaint. It forms part
of the pleadings in which the plaintiff has specifically stated that
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the plaintiff is having sufficient financial capacity to pay the
balance sale consideration and is ready to pay balance
consideration. Hence, the absence of a statement in the plaint
that he is ready to pay the balance sale consideration of
Rs.17,000/- is not relevant or material. The First Appellate Court
rightly exercised the discretion in favour of the plaintiff.
15. The learned Counsel for the respondent cited the decision of
the Hon'ble Supreme Court in Dahiben V.Arvind Bhai Kalyanji
Bhanusali [AIR 2020 (SC) 3310] in which it is held that
document produced along with the plaint form part of the
pleadings.
16. The learned Counsel cited the decision of the Hon'ble Supreme
Court in Sughar Singh v. Hari Singh (Dead) through LRs.
[AIR 2021 SC 5581] in which it is held that compliance of
readiness and willingness has to be in spirit and substance and
not in letter and form, so to insist for a mechanical production of
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exact words of a statute is to insist for the form than the essence
and that the absence of form cannot dissolve the essence
already pleaded. The learned counsel cited the decision of the
Hon'ble Supreme Court in P.Daivasigamani v. S.Sambandan
[AIR 2022 SC 5009] in which it is held that the compliance of
readiness and willingness has to be in spirit and substance and
not in letter and in form while making averments in the plaint.
17. The learned counsel cited the decision of the Hon'ble Supreme
Court in Motilal Jain v. Ram Dasi Devi Laws [AIR 2000 SC
2408] in which the Hon'ble Supreme Court allowed specific
performance finding that the plaintiff had parted in 2/3rd of the
sale consideration at the time of execution of the agreement for
sale and there is no reason why he would not pay the balance
1/3rd consideration to have the property conveyed in its favour.
18. The learned Counsel cited the decision of this Court in Faizal
Eroth and another v. Venkalath Raveendran and another
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[2013 (3) KLT 1041] and the decision of the Hon'ble Supreme
Court in Ramathal v. Maruthathal and others [AIR 2018(SC)
340] in which it is held that escalation of the value of the property
during the pendency of the litigation cannot be a ground for
denying the relief of specific performance.
19. The learned Counsel cited the decision of the Hon'ble Supreme
Court in Parmindar Singh v. Gurpreet sing [(2018) 13 SCC
352] in which it is held that in case where the plaintiff was ready
and willing to perform his part of the agreement and has
performed his part of the agreement whereas the defendant had
failed to perform his part of the agreement specific performance
under the specific Reliefs Act can be granted.
20. I have considered the rival contentions.
21. It is true that the Court could award compensation to the plaintiff
only if the plaintiff has claimed such compensation in the plaint
in view of Section 21(5) of the Specific Relief Act. Admittedly,
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the plaintiff has not made any prayer for compensation in the
plaint. This is a case where the Trial Court granted a decree for
recovery of the advance amount in favour of the plaintiff relying
on Ext.A1 Agreement for Sale. The defendant did not file any
appeal before the First Appellate Court. The plaintiff alone filed
an appeal before the First Appellate Court, and the decree for
money was substituted with the decree for specific performance
of the contract. In view of non challenge against the Trial Court
judgment, the defendant could not raise a plea that recovery of
the advance amount shall not be granted by the court unless it
has been specifically claimed. If the judgment of the First
Appellate Court is set aside, the judgment of the Trial Court will
automatically be restored.
22. Agreement for Sale was made compulsorily registrable by
amendment to Section 17(f) of the Registration Act with effect
from 13.09.2013. Ext.A1 Agreement was executed prior to the
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said amendment, and hence, the same did not require
registration. Hence, the Trial Court, as well as the First Appellate
Court, were right in granting decree relying on Ext.A1 Agreement.
23. The judgment of the Trial Court reveals that the readiness and
willingness on the part of the plaintiff to perform his part of the
Agreement is specifically considered by the Trial Court even
though no issue is framed in this regard. Omission to frame an
issue as required under O.XIV R.1 of C.P.C. would not vitiate
the trial in a suit where the parties went to trial fully knowing the
rival case and led evidence in support of their respective
contentions. This principle is laid down by the Hon'ble Supreme
Court in Nedunuri Kameswaramma v. Sampati Subba Rao
reported in [AIR 1963 SC 884]. In Sayeda Akhtar v. Abdul
Ahad, [AIR 2003 SC 2985] the Hon'ble Supreme Court
specifically held that even if no specific issue has been framed,
if the parties were aware of the issue and have led evidence on
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it, the Appellate Court should not interfere with the findings of
the Trial Court. The parties have adduced evidence and
advanced arguments, and the Trial Court considered the same
and found in favour of the defendant. Considering the pleading
and evidence in this case, the Trial Court was of the view that
the plaintiff failed to comply with the mandatory provision under
Section 16(c) of the Specific Relief Act, and it would disentitle
the plaintiff from getting a decree for specific performance.
Hence, the absence of a framing issue in this regard did not in
any way prejudice the defendant.
24. The next and important question to be considered in this Appeal
is whether the First Appellate Court was justified in granting the
decree for specific performance. Specific performance being an
equitable relief, this Court has to consider the balance of equity,
the unfair advantage to the plaintiff on allowing the specific
performance, and the extent of hardship that may be caused to
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the defendant on allowing the specific performance.
25. As rightly pointed out by the learned counsel for the respondent,
the relevant forms applicable in the case of a suit of specific
performance at the instance of the buyer in an Agreement for
sale are Form 47 and Form 48 in Appendix A of the Code of Civil
Procedure and not Form No.13 provided therein. The relevant
Rule applicable is Order 6 Rule 3 and not S.141. On going
through the plaint in the suit, the plaintiff has made specific
averment in Paragraph 9 of the Plaint that he is always ready
and willing to perform his part as per the agreement for sale and
that he was present before the Sub Registrar, Vellanad and the
office of the document writer Bhaskaran Nair near Sub Registrar
office, Vellanad on 05.06.1995 as per Ext.A2 Notice. Ext.A2
Lawyer Notice demanding performance from the defendant was
produced along with the plaint. The time for performance of
Ext.A1 Agreement dt 04.02.1995 was four months. The plaintiff
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caused to send Ext.A2 Notice dt 29.05.1995 within that time. In
the said Notice, he has specifically stated that he has the
capacity to pay the balance sale consideration, and he is ready
to pay the balance consideration. In the said Notice the
defendant is specifically demanded to be present before the
office of the Document Writer near to the Sub Registrar office at
10 A.M. on 05.06.1995 to execute the sale deed after receiving
the balance sale consideration. Though the defendant filed
Written Statement, he has no case that he went to the Sub
Registrar office on 05.06.1995 as demanded by the plaintiff in
Ext.A2 to register the sale deed after receiving the sale
consideration. The defendant did not send any reply to Ext.A2
Lawyer Notice. In view of the specific averments in the plaint as
well as in Ext.A2 Lawyer Notice the finding of the Trial Court that
the plaintiff did not comply with the mandatory provision under
Section 16(c) of the Specific Relief Act is unsustainable. Ext.A2
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lawyer Notice produced along with the Plaint forms part of the
pleadings as held by the Hon'ble Supreme Court in Dahiben
(supra). The essential pleadings are made by the plaintiff.
Mechanical reproduction of the form or mathematical precision
in the pleading is not required. Hence, I find that the plaintiff has
complied with the mandatory provision under Section 16(c) of
the Specific Relief Act by making necessary pleadings with
respect to his readiness and willingness.
26. The Trial Court legally relied on Ext.C1 Commission Report to
deny specific performance in favour of the plaintiff. According to
the Trial Court, the value of the property is Rs.1,58,000/- as per
Ext.C1, whereas the sale consideration in Ext.A1 is Rs.80,000/-.
The Advocate Commissioner was not examined to prove
Ext.C1. Ext.C1 reveals that the Advocate commissioner
assessed the value of the building by himself on a rough
estimation. He assessed the land value by making a local
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enquiry by himself. The Trial Court ought not to have placed
reliance on Ext.C1 Commission Report for assessing the value
of the plaint schedule property. This is a case where execution
of the Ext.A1 Agreement is not denied by the defendant. The
contention of the defendant that Ext.A1 Agreement was
executed as a security for loan is not proved by the defendant.
Though the defendant contended that there was a mediator
while executing the Ext.A1 agreement, he did not choose to
examine the said witness. It appears that the defendant was
raising untenable contentions for denying the performance of
the Ext.A1 Agreement, though the plaintiff showed his readiness
and willingness to perform his part of the Agreement.
th of the sale consideration is paid by the plaintiff
on the date of Ext.A1 Agreement itself, i.e., in the year 1995.
The plaintiff has paid Rs.63,000/- as against the sale
consideration of 80,000/- on the date of Ext.A1 Agreement itself.
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The defendant has not disputed the financial capacity of the
plaintiff to pay the balance sale consideration. The plaintiff has
offered the balance consideration as per Ext.A2 lawyer Notice
within time. The defendant has been enjoying both the advance
consideration as well as the property since the year 1995. The
balance consideration due to him is only Rs. 17,000/-. It will
cause much detriment and prejudice to the plaintiff, if the
advance sale consideration and interest thereon is ordered to
be paid to the plaintiff at this distance of time instead of granting
specific performance. It would be unjust and inequitable. It
would give unfair advantage to the defendant on account of
whose fault, the sale could not take place. In view of the
aforesaid decisions of the Hon'ble Supreme Court and this
Court, Faizal Eroth and Ramathal (supra) escalation of price
of the property during the pendency of the litigation is not a
ground or reason to deny specific performance. That apart, the
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defendant is not prejudiced on account of the escalation of price
when more than 3/4th of the total sale consideration was
received by him on the date of Ext.A1 Agreement. The
execution of the sale deed pursuant to the Ext.A1 agreement
was delayed only on account of the default on the part of the
defendant. When substantial portion of the sale consideration is
paid by the buyer and sale could not take place only on account
of reasons attributable to the seller alone, decree for specific
performance in favour of the buyer has to be the normal rule. In
view of the aforesaid facts and circumstances, I find that the
First Appellate Court exercised its discretion correctly on sound
reasons while allowing the specific performance. Hence, the
Judgment and decree passed by the First Appellate Court is
perfectly legal and valid.
28. In light of the aforesaid discussions, I answer the question of
law formulated in this appeal in the affirmative and in favour of
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the respondent. The Regular Second Appeal is dismissed with
costs.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma
