Kerala High Court
Puthanpurakkal Thomas(Died) vs C.P.Abootty on 13 September, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
RFA NO. 352 OF 2013
AGAINST THE JUDGMENT AND DECREE DATED 31.10.2012 IN OS
NO.353 OF 2009 OF PRINCIPAL SUB COURT, THALASSERY
APPELLANTS/DEFENDANTS 1 TO 10:
1 PUTHANPURAKKAL THOMAS(DIED)
S/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT.
IT IS RECORDED THAT THE FIRST APPELLANT DIED, VIDE
ORDER DATED 13/1/23 IN RFA 352/13.
2 PUTHENPURAKKAL MARY @ KATHREENA
D/O MARIYAM, ARARALAM AMSOM DESOM,
THALASSERY TALUK, KANNUR DISTRICT
3 PUTHENPURAKKAL THRESYAMMA
D/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
4 PUTHENPURAKKAL DEVASSIA
S/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
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5 PUTHENPURAKKAL MATHEW
S/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
6 PUTHENPURAKKAL JOSE
S/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
7 PUTHENPURAKKAL MARY
D/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
8 PUTHENPURAKKAL ALICE
D/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
9 PUTHENPURAKKAL JESSY
D/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
0 PUTHENPURAKKAL BABY POULOSE
S/O MARIYAM, ARARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
11 ROSAMMA
AGED 72 YEARS
W/O LATE THOMAS, PUTHANPURAKKAL HOUSE, AARALAM
AMSOM DESOM, THALASSERY TALUK, KANNUR
DISTRICT- 670704
12 JOY P.T.
AGED 52 YEARS
S/O LATE THOMAS, PUTHANPURAKKAL HOUSE, AARALAM
AMSOM, DESOM, THALASSERY TALUK, KANNUR
DISTRICT- 670704
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13 MERCY JAMES
AGED 50 YEARS
D/O LATE THOMAS, PUTHANPURAKKAL HOUSE, AARALAM
AMSOM, DESOM, THALASSERY TALUK, KANNUR
DISTRICT- 670704
14 DAISY WILSON
AGED 48 YEARS
D/O LATE THOMAS, PUTHANPURAKKAL HOUSE, AARALAM
AMSOM, DESOM, THALASSERY TALUK,
KANNUR DISTRICT- 670704.
THE LEGAL HEIRS OF THE DECEASED FIRST
APPELLANT ARE IMPLEADED AS ADDITIONAL
APPELLANTS 11 TO 14 VIDE ORDER DATED 6/2/23 IN
IA 1/23.
BY ADVS.
C.P.PEETHAMBARAN
MINI.V.A.
RESPONDENTS/PLAINTIFF/11TH DEFENDANT:
1 C.P.ABOOTTY
S/O KUNJUMUKHAMMED, PADUVILAYI AMSOM, EARADAM
DESOM, THALASSERY TALUK, KANNUR DISTRICT
2 MALLISSERIYIL SAJIMON
S/O JOHN, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT
IT IS RECORDED THAT SRI JOSEPH .T.T .
S/O.THOMAS AGED 38 YEARS, RESIDING AT
THUNDIYIL HOUSE VELIMANAM P.O., PIN- 670704
ARALAM AMSAM DESAM, IRITTY TALUK, KANNUR
DISTRICT IS THE POWER OF ATTORNEY HOLDER FOR
RESPONDENT NO.2 (MALLASSERIYIL SAJIMON) AS PER
ORDER DATED 20/10/2015 VIDE MEMO DATED 17/8/15
WITH CF NO.4415/15
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3 JOLLY THOMAS
S/O. LATE THOMAS, AGED 46 YEARS,
PUTHANPURAKKAL HOUSE, AARALAM AMSOM DESOM,
THALASSERY TALUK, KANNUR DISTRICT.
THE LEGAL HEIR OF THE DECEASED FIRST APPELLANT
IS IMPLEADED AS ADDITIONAL RESPONDENT 3 , VIDE
ORDER DATED 6/2/23 IN IA 1/23.
BY ADVS.
SRI.N.AJITH
S.SREEKUMAR (SR.)
SMT.GEETHA P.MENON
SRI.T.R.HARIKUMAR
SRI.P.B.KRISHNAN
SRI.R.SURAJ KUMAR
SRI.P.B.SUBRAMANYAN
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
AJAY BEN JOSE
MANJUNATH MENON
HANI P.NAIR
HARIKRISHNAN S.
NEERAJA VENUGOPAL
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
13.09.2024, ALONG WITH FAO.189/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA,
1946
FAO NO. 189 OF 2019
AGAINST THE ORDER DATED 26.07.2018 IN
I.A.NO.667/2013 IN OS NO.353 OF 2009 OF PRINCIPAL SUB
COURT, THALASSERY
APPELLANT/11TH DEFENDANT:
MALLISSWERIYIL SAJIMON
S/O. JOHN, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT.
BY ADVS.
S.SREEKUMAR (SR.)
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.HARIKRISHNAN S.
SRI.P.MARTIN JOSE
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RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 10:
1 C. P. ABOOTTY
S/O. KUNHUMUHAMMED, PADUVILAYIL AMSOM, ERADAM
DESOM, THALASSERY TALUK, KANNUR DISTRICT,
PIN - 670 612.
2 PUTHANPURAKKAL THOMAS(DIED),
S/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
3 PUTHANPURAKKAL MARY @ KATHREENA
D/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
4 PUTHANPURAKKAL THRESSYAMMA
D/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
5 PUTHANPURAKKAL DEVASYA
S/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
6 PUTHANPURAKKAL MATHEW
S/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
7 PUTHANPURAKKAL JOSE
S/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
8 PUTHANPURAKKAL MARY
D/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
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9 PUTHANPURAKKAL ALICE
D/O THANKACHAN, KUNNAPALLI HOUSE, KILIYAM
KARA, KANNUR - 670 704.
0 PUTHANPURAKKAL JESSY,
S/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
11 PUTHANPURAKKAL BABY @ POULOSE
S/O. MARIYAM, ARALAM AMSOM DESOM, THALASSERY
TALUK, KANNUR DISTRICT, PIN - 670 704.
3. PUTHNPURAKKAL MARY @ KATHREENA,
D/O.MARIYAM,PUVATHINKAL HOUSE, PAYAM P.O.,
NEDUMUNDA,KANNUR-670 704.
8. PUTHENPURAKKAL MARY, ALAMKULAM HOUSE,
NEENDUNOKKI,KOTTIYOOR,KANNUR-670 651.
9. PUTHANPURAKKAL ALICE,
W/O.THANKACHAN,KUNNAPALLI HOUSE,KILIYAM
KARA,KANNUR-670 706.
10.PUTHANPURAKKAL JESY,W/O.JOHNSON,UZHUNNALIL
HOUSE,IRINJALAKKUDA,THRISSUR-680 121.
ADDRESS OF RESPONDENTS 3,8,9 AND 10 CORRECTED
AS PER THE ORDER DATED 14/12/2021 IN IA 1/21.
RESPONDENTS R3 TO R11 ARE RECORDED AS LEGAL
REPRESENTATIVES OF DECEASED R2 AS PER THE
ORDER DATED 17/01/2024 IN MEMO DATED
17/12/2022.
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BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
HEARING ON 13.09.2024, ALONG WITH RFA.352/2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN & JOHNSON JOHN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A.No.352 of 2013
&
F.A.O. No.189 of 2019
= = = = = = = = = = = = = = = = = =
Dated this the 13th day of September, 2024
JUDGMENT
Sathish Ninan, J.
The Regular First Appeal is filed by defendants 1 to 10
challenging the decree for specific performance. The FAO is
filed by the 11th defendant challenging the dismissal of his
application to set aside the ex parte decree against him.
2. Defendants 1 to 10, are the children of late
Mariyam. The suit property having an extent of 8 ¾ cents
with a shop building therein, belonged to Mariyam. On her
death it devolved on defendants 1 to 10. According to the
plaintiff, on 04.12.2007 defendants 1 to 10 entered into
Ext.A1 agreement for sale with the plaintiff, in respect of
the property. The total sale consideration fixed was
Rs.13,40,000/-. An amount of Rs.2,00,000/- was paid towards
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advance sale consideration. The period fixed for performance
was upto 30.03.2008. According to the plaintiff, the
defendants failed to perform the primary obligation under
the agreement namely, to evict the tenants occupying the
shop rooms. Alleging failure on the part of the defendants
to honour the agreement, the suit was filed seeking specific
performance.
3. The defendants alleged that it was the plaintiff
who committed breach of the contract. It was contended that,
in terms of the agreement, they had obtained vacant
possession of the shop building from the tenants, in spite
of which the plaintiff failed to proceed with the agreement.
This resulted in damages by way of loss of rent.
Accordingly, a counter claim was raised seeking damages.
4. By way of replication, the plaintiff denied the
averments in the counter claim.
5. The trial court held that the plaintiff was ready
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and willing to perform the agreement and the defendants
committed breach. Accordingly a decree for specific
performance was granted. The counter claim was dismissed. As
against the dismissal of the counter claim, there is no
appeal.
6. The 11th defendant is an assignee of the plaint
schedule property from defendants 1 to 10 under Ext.A12 sale
deed dated 27.07.2009. The assignment is after expiry of the
period fixed for performance under Ext.A1 and prior to the
filing of the suit. The suit was filed on 26.08.2009.
Service of summons on the 11th defendant was effected by
substituted service in terms of Order V Rule 20 of the Code
of Civil Procedure. He filed applications as I.A.No.667 of
2013 and I.A.No.666 of 2013, seeking to set aside the ex
parte decree against him and to condone the delay of 80 days
in filing the application, on the ground that he was abroad
and was not aware of the suit and the decree.
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R.F.A.No.352 of 2013 and
7. The trial court dismissed the applications. It is
challenging the same that the FAO has been filed.
8. We have heard the learned counsel on either side.
9. The points that arise for determination are;
i) Is the finding of the trial court that the plaintiff was ready and
willing to perform his part of the agreement, based on the evidence
on record?
ii) Does the exercise of discretion by the trial court under
Section 20 of the Specific Relief Act in granting a decree for specific
performance warrant interference?
iii) Has the 11th defendant made out sufficient grounds to have the
delay condoned and the exparte decree set aside?
10. The execution of Ext.A1 agreement is not in
dispute. The plaintiff and the defendants point fingers at
each other alleging the other to be responsible for the non-
performance. The trial court held that Ext.A1 contains
reciprocal promises and that the obligation of the plaintiff
to perform would arise only on fulfillment of the initial
obligation cast upon the defendants, under Ext.A1 agreement.
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R.F.A.No.352 of 2013 and
Ext.A1 requires the defendants to evict the tenants from the
shop buildings. The defendants did not evict the tenants and
intimate the plaintiff. The obligation of the plaintiff to
pay the balance sale consideration and to get the sale deed
executed arises only thereafter, it was held.
11. A bare reading of Ext.A1 leaves no room of doubt
that the finding of the trial court is contrary to the terms
in Ext.A1 and is unsustainable. As per Ext.A1, the
defendants are to execute the sale deed and handover
possession of the shop building "if and when" the plaintiff
intimates them with regard to his readiness to get the sale
deed executed. The defendants are to give vacant possession
of the shop building on evicting the tenants, before the
registration of the sale deed. The relevant portion of
Ext.A1 agreement reads thus;
"വ ൽപന വകയ ൽ ബ കയണ കന സ ഖ
രണ യ രത എട മ ർച മ പത ത യത യയ അത നകയമ
ന ങൾ ഒര ക ന ങള ട ച ലവ ൽ ന ങള ട യ"ര യല
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R.F.A.No.352 of 2013 and
ന ങൾ ന ർയ#ശ ക ന മറ വലവര ട യ"ര യല ജന ധ ര
എഴ ത വ ങ ൻ തയ റ യ ഞങള വ വര അറ യ ച ൽ
ഞങൾ ബനടപട റ ക ർഡ കൾ സഹ ത വന ആധ ര
എഴ ത ച രജ സ6 ന ഹ ജര ക യ7 ൾ ബ ക ത ക ഞങൾക
ടറ ക തയരണത വസ9 വ യനൽ യ ടത ര വ ധ ബ ധ:തകയള
ന:;നതകയള ക; ടത ജന ധ ര രജ സ6 കച സ<ത
പ ടക ളകട ടവ ന ര " ധ ക ന ങൾക കകവശ
ഏല# ച തര നത ള$ന ഇത ന ൽ ന ശയ ച ര ക ന .
മ&ൽ ക ല വധ കക ബ ക ത ക ഒര ക ആധ ര
എഴ ത വ ങ ൻ തയ റ യ ഞങള വ വര
അറ യ ച ൽയമൽ6"ക ര ബക ത ക കക"റ ജന ധ ര
രജ സ6 കച തര നത ൽ ഞങൾ യ ടത ര വ ഴAയ
വ സമതവ ടചയ നതടലന ...........
xxxx xxxx xxxx
മറ " റ "ട കയ ൽ വ വര ച സ<ത ല ള പ ട ക & റ കൾ
ളറജ സ0മ1ടഷന0 & ൻപ യ ക ട യ ൻന ളര ഞങൾ
ഒഴ വ ക പ ട ക & റ കൾ ന ങൾക0 ത മക ൽസഹ ത
മനളര കകവശ ഏല# ച തര നത $0. ആയത ന ള
ബ ധ:ത ഞങൾ ഏടറ ത ര ക ന ."
As is evident therefrom, the obligation of the defendants
arise as and when the plaintiff intimates them of his
readiness to get the sale deed executed. When the defendants
are so intimated by the plaintiff, the defendants are to
handover vacant possession of the property including the
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building by evicting the tenants, before the execution and
registration of the sale deed. The finding of the trial
court that the plaintiff's liability to perform accrues only
when the defendants evict the tenants from the building and
intimates the same to the plaintiff, is not correct. A
reading of the judgment of the trial court reveals that such
erroneous finding of the court has formed the substratum of
the judgment. The attempt of the learned counsel for the
respondent-plaintiff to support the finding, is bound to
fail.
12. Having held that, of the reciprocal promises the
obligation of the plaintiff arose first in point of time, it
is to be considered whether the plaintiff discharged his
initial obligation.
13. It is significant to note that, the plaintiff has
no case that, within the period stipulated in Ext.A1 he had
intimated the defendants in terms of the agreement that he
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is ready with the money and calling upon them to execute the
conveyance. All that is stated in the plaint is that, " Before
the expiry of the period, the plaintiff in person and also thorugh his representatives
contacted the defendants for the purpose of fulfilling the terms and conditions of the
agreement as agreed upon.". In Ext.A1, the period fixed for
performance was upto 30.03.2008. There is no material to
find that, within the period stipulated, the plaintiff made
any demand to the defendants for performance of the
contract. None of the alleged representatives were examined.
On the contrary, on 07.04.2008, i.e., immediately after the
expiry of the period fixed for performance, the defendants
issued Ext.A2=Ext.B1 notice to the plaintiff, rescinding the
contract for its non-performance. There is no evidence to
find that, within the period fixed for performance, the
plaintiff had demanded the defendants to evict the tenants
and to go ahead with the transaction. The above is
sufficient enough to find breach of the agreement by the
plaintiff.
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14. Ext.A3=Ext.B4 is the reply dated 28.04.2008 issued
by the plaintiff to Ext.A2 notice. Therein it is alleged
that the defendants did not inform the plaintiff of having
obtained the vacant possession of the shop rooms. Therein,
it is also alleged that the plaintiff has not handed over
the relevant documents. It is also alleged that the
defendants have executed some registered document after the
agreement, thus, violating the agreement.
15. Ext.A3 was followed by Ext.B5 notice dated
08.08.2008 issued by the plaintiff to the defendants,
demanding specific performance of the agreement. Therein it
is alleged that, copies of the relevant documents were not
handed over and that the defendants insisted the
documentation to be done by a document writer of their
choice. The notice also referred to Ext.A11 gift in favour
of the 6th defendant by the other defendants in respect of
the property, after Ext.A1. As per the notice, the plaintiff
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R.F.A.No.352 of 2013 and
demanded performance of the agreement. Here, it is pertinent
to note that, in Ext.B5, there is no case that the
defendants failed to evict the tenants from the shop
building.
16. To Ext.B5 notice, the defendants issued
Ext.A4=Ext.B6 reply. Therein, they expressed their
willingness to complete the sale within seven days. Ext.A4
acknowledged Ext.A11 gift in favour of the 6 th defendant and
stated that it was executed only for the sake of convenience
for executing the conveyance in favour of the plaintiff by
the vendors/defendants, who are ten in number. Here it is
relevant to note that, if the attempt of the defendant was
to shield away the property they could have executed the
document in favour of a third party. A conveyance in favour
of one among the vendors would not in any manner help in
defeating Ext.A1 agreement.
17. To Ext.A4, the plaintiff issued Ext.A5 reply dated
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28.08.2008. Therein, the plaintiff alleged default on the
part of the defendants and expressed his willingness to
proceed with the transaction.
18. After the issuance of Ext.A5 notice by the
plaintiff on 28.08.2008, there was no action from his part.
On 27.07.2009, that is after a period of almost one year,
the defendants conveyed the property in favour of the 11 th
defendant. The said conveyance is after the expiry of more
than one year from the last date fixed for performance of
Ext.A1 agreement. The total inaction/passiveness of the
plaintiff during the said period of one year has great
significance in considering his readiness and willingness.
In the plaint it is stated that the delay in getting the
sale deed occurred consequent on the differences in opinion
among the defendants, the delay on the part of the
defendants in getting the vacant possession of the shop
rooms and also failure of the defendants to convince the
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plaintiff of the title. If that be so, the plaintiff should
have necessarily taken some steps rather than keeping idle.
19. As regards the allegation of difference of opinion
among the defendants, but for the bald averment, there is no
evidence. In the written statement, the defendants have
denied the allegation. As regards the allegation regarding
non-obtaining of vacant possession of the shop room, as was
noticed supra, the said liability on the part of the
defendants arises only when they are intimated by the
plaintiff of his readiness to get the sale deed executed.
Moreover, it is the defendants' case that they had obtained
vacant possession of the shop rooms. In the notices issued
by the plaintiff, he did not have a case that the tenants
were not evicted from the building at all. The only
reference made by the plaintiff to the eviction of the
tenants is in Ext.B4 notice wherein it is stated that the
tenants were not evicted as on 30.03.2008. Even in the said
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notice the plaintiff did not have a case that the tenants
were not evicted and they still continued in possession. As
regards the contention regarding title to the property, in
paragraph No.2 of the plaint it has been asserted thus;
"2. The plaint schedule property originally belonged
Puthanpurakkal Mariyam- defendants' mother. After her death the
property devolved on her children who are defendants herein. After
the death of the mother the defendants enjoyed the plaint schedule
property as joint owners and exercised rights of possession as a co-
owners. After the death of the mother the defendants are in actual
physical possession of the property as true and absolute owners."
Therefore the plaintiff had no doubts regarding the
defendants' title. In the notice issued by the plaintiff,
though copies of documents were sought, in his cross
examination as PW1, he would depose that, except for
pattayam, copies of other documents were given.
20. To prove the readiness on the part of the
plaintiff to get the sale deed executed, he produced
Exts.A13 to A15 Bank accounts details. Ext.A13 is a savings
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account passbook in the name of the plaintiff with the
Aralam Service Co-operative Bank Ltd. Ext.A13 shows that the
account was opened on 31.03.2008, i.e., after the date fixed
for performance with an 'initial deposit' of Rs.5,00,000/-.
Ext.A14 is the photostat copy of a computer printout of
statement of accounts purportedly from the Federal Bank Ltd.
The account stands in the name of Ibrahim C.P., Abu C.P.,
and Raseena U.V. There is nothing to find that Abu C.P.
mentioned therein is the plaintiff, who is C.P. Abooty. So
also, Ext.A14 is a mere photostat copy without any
certification or seal of the Bank. The marking of the
document was objected to by the defendants. Ext.A15 is
stated to be the printout of a Bank account with the Federal
Bank Ltd. It shows the name of the account holders as: "1.
Mr.Ibrahim C.P. 2. Mr.Abooty C.P". However, it is seen that
the numericals 1 and 2, and also the name Abooty C.P. are
hand written. Ext.A15 also does not contain certifications
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under the Banker's Evidence Act and under S.65 B Indian
Evidence Act. If Exts.A14 and B15 are eschewed from
consideration, there is no material to find that the
plaintiff was possessed of sufficient means during the
relevant period to go ahead with the transaction.
21. Thus, the evidence on record does not prove the
readiness and willingness of the plaintiff. The trial court
has proceeded on the erroneous assumption that Ext.A1
agreement required the performance from the side of the
defendants first in point of time, by evicting the tenants
and intimating the same to the plaintiff, and the plaintiff
need to show his readiness and willingness only thereafter.
All the findings of the trial court are on the basis of such
erroneous assumption. The finding of the trial court is thus
liable to be set aside and we do so. Point No.i is answered
accordingly.
22. Having found that the plaintiff had committed
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breach and has not proved his readiness and willingness, the
issue regarding exercise of discretion under Section 20 of
the Specific Relief Act does not arise at all. At any rate,
the findings as above, with regard to the readiness and
willingness of the plaintiff, is sufficient enough to
exercise the discretion to refuse the relief of specific
performance. Though the exercise of discretion by the trial
court is not generally interfered with by the Appellate
Court, Section 20 of the Specific Relief Act specifically
provides that the exercise of discretion is subject to
correction in appeal. The exercise of the discretion by the
trial court to grant a decree for specific performance is
found to be arbitrary and illegal. It is liable to be
interfered with, and we do so.
23. As regards the alternate relief of return of
advance sale consideration, the claim for damages urged by
the defendants having been negatived, there is no reason to
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decline the relief of return of advance sale consideration.
The plaintiff has claimed 6% interest on the amount, from
the date of payment, which is reasonable.
24. Now coming to the FAO, the learned counsel for the
appellant in the FAO submitted that, in the event of RFA
being allowed, the appellant in the FAO would not further
prosecute the FAO. Even otherwise, we do not find sufficient
reason to allow the FAO. Admittedly the 11th defendant had a
power of attorney holder who was looking after the property.
The property was attached by the Court. There is no reason
to assume that the power of attorney holder was not aware of
the attachment, suit and the decree. The power of attorney
holder, who would have been the best person to depose about
the facts, did not enter the witness box. The trial court
cannot be faulted for having dismissed the applications to
set aside exparte and to condone the delay. The order calls
for no interference.
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Resultantly, the RFA is allowed. The decree and
judgment of the trial court are set aside. The plaintiff is
granted a decree for realisation of Rs.2,00,000/- with
interest @ 6% per annum from the date of agreement, i.e.,
04.12.2007 till realisation from the defendants. The
plaintiff shall also be entitled for costs throughout. The
FAO will stand dismissed. Costs in the FAO made easy.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
JOHNSON JOHN
JUDGE
yd
