Kerala High Court

A.K. Somasekharan Nair vs Jaison Thomas on 24 September, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

R.F.A No. 106/2014


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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

          TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946

                                RFA NO. 106 OF 2014

JUDGMENT AND DECREE DATED 30.11.2013 IN OS NO.70 OF 2008 OF PRINCIPAL SUB

COURT, KOTTAYAM


APPELLANTS/DEFENDANTS 1 AND 2:

      1      A.K. SOMASEKHARAN NAIR
             S/O.KRISHNA PILLAI, POURNAMI HOUSE, THALAYOLAPARAMBU P.O.,
             VADAYAR VILLAGE, VAIKOM TALUK.

      2      SREEDEVI AMMA
             W/O.A.K.SOMASEKHARAN NAIR, POURNAMI HOUSE,
             THALAYOLAPARAMBU P.O., VADAYAR VILLAGE, VAIKOM TALUK.

             BY ADVS.
             SRI.K.M.SATHYANATHA MENON
             SMT.KAVERY S THAMPI


RESPONDENT/PLAINTIFF:

             JAISON THOMAS
             S/O.N.V.THOMAS, NADUPARAMBIL HOUSE, VELLASSERI KARA,
             KADUTHURUTHY VILLAGE, VAIKOM TALUK-686 141.

             BY ADVS.
             SRI.T. KRISHNAN UNNI SR.
             SRI.K.C.KIRAN
             SMT.MEENA.A.
             SMT.P.A.SHEEJA



      THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09.09.2024,

      THE COURT ON 24.09.2024 DELIVERED THE FOLLOWING:
 R.F.A No. 106/2014


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                 SATHISH NINAN & JOHNSON JOHN, JJ.
            ---------------------------------------------------------
                           R.F.A. No. 106 of 2014
             ---------------------------------------------------------
                  Dated this the 24th day of September, 2024

                                 JUDGMENT

JOHNSON JOHN, J

The defendants in O.S. No. 70 of 2008 on the file of the Principal

Sub Judge, Kottayam filed this appeal challenging the decree directing

specific performance of an agreement for sale.

2. The plaintiff and defendants entered into an agreement for

sale of the property of the defendants to the plaintiff for a consideration

of Rs.47,00,000/-. The agreement was executed on 06.09.2007 and the

time fixed for performance was 5 months from the date of agreement.

The plaintiff paid Rs.10,00,000/- as advance sale consideration to the

defendants on the date of agreement, and it was agreed that the

balance sale consideration of Rs.37,00,000/- will be paid within 5

months. As per the agreement, the property is to be measured either

by a mutually acceptable surveyor or by the Taluk Surveyor and all the

original documents should be shown to the plaintiff for inspection within

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the period fixed for performance. It was also stipulated that sale

consideration was fixed for an extent of 23 cents and in the event of

any difference in extent upon measurement, the plaintiff need to pay

only the consideration for the actual extent. As per the plaint

averments, the plaintiff was ready and wiling to pay the balance sale

consideration to get the sale deed executed. But, the defendants failed

to take steps for the measurement of the property and to produce the

original title deeds for verification, in spite of repeated demands by the

plaintiff.

3. Subsequently, on the basis of the information given by the

defendants that they had made arrangements to measure the property

on 03.02.2008, the plaintiff went to the property and waited there till

the evening. But, neither the defendants nor the surveyor turned up.

Thereafter, when the plaintiff contacted the first defendant over phone,

he retorted that he is not prepared to execute the sale deed. When the

plaintiff realised that the defendants are making arrangements to sell

the plaint schedule property for higher value, the suit was filed.

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4. In the written statement, the defendants contended that they

entered into an agreement for sale with the plaintiff to meet the

marriage expenses of their daughter. The plaintiff was not ready and

willing to pay the balance sale consideration and get the sale deed

executed. The plaintiff never demanded the production of the title deed

and measurement of the property. Though the defendants informed the

plaintiff several times that they are ready and willing to measure the

property as agreed and to make arrangements to execute the sale deed

after receiving the balance sale consideration, the plaintiff was not

ready with the balance sale consideration.

5. As the defendants were in urgent need of money in connection

with the marriage of their daughter, they informed the plaintiff that they

will be ready with the surveyor to measure the property on 30.01.2008

and even though they waited there in the plaint schedule property

along with the surveyor, the plaintiff did not turn up. Thereafter, the

defendants contacted the plaintiff several times before 05.02.2008. But,

the plaintiff was not ready to pay the balance sale consideration to get

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the sale deed executed. Since the plaintiff failed to perform his part of

the contract, he is not entitled to get back the advance amount. When

the plaintiff failed to turn up for the execution of the sale deed, the

defendants were forced to mortgage 20 cents of property owned by the

second defendant for availing a loan in connection with the marriage of

their daughter and therefore, the suit is liable to be dismissed.

6. In the trial court, PWs 1 to 4 were examined and Exhibits A1

to A11 were marked from the side of the plaintiff. From the side of the

defendants, Dws 1 to 3 were examined and Exhibits B1 to B8 were

marked. Exhibits X1 to X3 were also marked.

7. After considering the evidence on record and hearing both

sides, the trial court found that the plaintiff is entitled for specific

performance and hence decreed the suit with costs.

8. Heard Sri. K.M. Sathyanatha Menon, the learned counsel for

the appellants and Sri. T. Krishnanunni, the learned Senior counsel for

the respondents, and perused the records.

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9. The learned counsel for the appellants argued that the plaintiff

has not chosen to enter the witness box to prove that he was always

ready and willing to perform his part of the contract. It is pointed out

that readiness and willingness refers to the state of mind and conduct

of the purchaser and also his capacity and preparedness, and when it is

required to prove or establish something with reference to the state of

mind or conduct of the party, normally the person concerned alone has

to give evidence and therefore, the trial court erred in accepting the

evidence of the power of attorney holder of the plaintiff in this regard.

It is also argued that the plaintiff was not having sufficient funds with

him to discharge his obligation in terms of the contract and that the

evidence tendered by PW1 to show that the brothers and father of the

plaintiff were willing to advance money to the plaintiff is not supported

by pleadings.

10. It is argued that if the plaintiff does not have sufficient funds

with him to discharge his obligations as per the terms of the contract,

he would have to specifically plead how the funds would be available to

him, and in the absence of specific pleadings in this regard, the plaintiff

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is not entitled for specific performance. It is also argued that the trial

court failed to consider the conduct of the plaintiff prior and subsequent

to the filing of the suit and that the continuous readiness and

willingness on the part of the plaintiff was a condition precedent for

grant of the relief of specific performance.

11. The points that arise for determination are the following:

1. Whether the plaintiff's conduct demonstrates readiness and willingness on his part to carry out his obligations under the agreement of sale dated 06.09.2007?

2. Whether the impugned judgment and decree are legally sustainable?

Points 1 and 2:

12. PW1 is the brother and power of attorney holder of the

plaintiff. The power of attorney executed on 08.02.2008 by the plaintiff

in favour of PW1 is marked as Exhibit A1. Exhibit A2 is the agreement

for sale dated 06.09.2007 between the plaintiff and the defendants.

There is no dispute between the parties regarding the terms in Exhibit

A2 agreement. According to the plaintiff, the defendants were not ready

to carry out their obligations under the agreement and the defendants

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contended that the plaintiff was not ready and willing to pay the

balance sale consideration as per the terms in the agreement. It is

pertinent to note that Exhibit A1 power of attorney in favour of PW1 is

executed only after the time fixed for performance of Exhibit A2

agreement for sale. It is not in dispute that the time fixed for

performance was 5 months from the date of agreement ie., up to

05.02.2008.

13. In paragraph 3 of the plaint, it is stated that the defendants

informed the plaintiff that they made arrangements to measure the

property on 03.02.2008. But in the chief affidavit of PW1, it is stated

that the plaintiff demanded the defendants to measure the property on

03.02.2008 and accordingly, the plaintiff along with PW1, his brother

Thomson and brokers--Ramachandran Nair and Jose, reached the plaint

schedule property and then it was found that the defendants left the

place after locking the house and hence, they could not measure the

property. The above evidence of PW1 does not tally with the averments

in the plaint.

14. In the chief affidavit of PW1, it is further stated that the

plaintiff along with his brothers, decided to purchase the plaint schedule

property for their business purpose and they also arranged the sale

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consideration. But, the plaintiff has no such case in the plaint. In page

2 of the chief affidavit of PW1, it is stated as follows:

അന്യായ പട്ടിക വസ്തു ബിസിനസ് ആവശ്യങ്ങൾക്ക് ഉപയുക്തമാകുന്നു. വാദിയും സഹോദരന്മാരായ ഞാനും തോമസണും ചേർന്ന് ബിസിനസ് ചെയ്യുന്നതിന് വേണ്ടിയാകുന്നു പട്ടിക വസ്തു വാങ്ങുന്നതിനു നിശ്ചയിച്ചതും തീറു വില സമാഹരിച്ചതും. ആകയാൽ തന്നെ ടി വസ്തു ലഭിക്കണമെന്ന് ഞങ്ങൾക്ക് അതിയായ ആഗ്രഹവും നിശ്ചയവും ഉണ്ടായിരുന്നു. കരാർ വ്യവസ്ഥകൾ പാലിക്കാതെ ഒഴിഞ്ഞു മാറേണ്ടതായ യാതൊരു ആവശ്യമോ കാര്യമോ ഞങ്ങൾക്ക് ഉണ്ടായിരുന്നില്ല. വസ്തു വാങ്ങുവാൻ ഞങ്ങൾ തയ്യാറായിരുന്നില്ലെന്നു പത്രികയിൽ പറഞ്ഞിട്ടുള്ളത് ശരിയല്ല.

15. In cross examination, PW1 stated that the plaintiff is working

abroad and residing there for the past 12 years. When it is suggested

to PW1 in cross examination that since the defendants were in need of

money in connection with the marriage of their daughter, they

demanded payment of balance sale consideration and execution of sale

deed on several occasions before 05.02.2008, initially PW1 admitted the

same. But, thereafter, he denied the same and stated that as per the

terms in the agreement, the property is required to be measured before

the execution of the sale deed. In cross examination page 6, PW1

deposed as follows:

"പ്രതികളുടെ മകളുടെ വിവാഹത്തിനായിട്ടാണോ വസ്തു വിൽക്കാൻ തീരുമാനിച്ചത് എന്ന് എനിക്കറിയില്ല. വിവാഹത്തിന് പണം ആവശ്യമായതിനാൽ 5.2.08 നു മുൻപ് പല പ്രാവശ്യവും phone മുഖേനയും

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നേരിട്ടും നിങ്ങളെ ബന്ധപ്പെട്ട് തീറാധാരം നടത്താൻ ആവശ്യപ്പെട്ടിരുന്നു എന്ന് പറയുന്നു. (Q) ശരിയാണ് ബന്ധപ്പെട്ടിട്ടുണ്ട്. (A) Further states ശരിയല്ല ബന്ധപ്പെട്ടിട്ടില്ല. വസ്തു അളന്ന് ബോധ്യപ്പെട്ട ശേഷം തീറാധാരം നടത്താമെന്നായിരുന്നു കരാർ."

In cross examination page 8, PW1 deposed as follows:

നിങ്ങൾ ഹാജരാക്കിയ account statement പ്രകാരം കരാറിൽ പറയുന്ന ബാക്കി തുക അടക്കാനുള്ള തുക വാദിയുടെ അക്കൗണ്ടിൽ ഇല്ലായിരുന്നല്ലോ (Q) Balance statement എനിക്ക് അറിയില്ല (A). കരാർ പ്രകാരം ബാക്കി തുക നൽകാൻ വാദിയുടെ കൈവശം പണം ഇല്ലായിരുന്നല്ലോ? (Q) വാദിയുടെ പക്കൽ പണം ഉണ്ടായിരുന്നു (A) 05.02.2008 നു മുമ്പ് ബാക്കി തുകയായ 37 ലക്ഷം രൂപ തരാൻ വാദിയുടെ പക്കൽ ഉണ്ടായിരുന്നതായി കാണിക്കാൻ എന്തെങ്കിലും രേഖ ഹാജരാക്കാമോ? (Q) വാദിയുമായി സംസാരിച്ച ശേഷം പറയാം (A)

16. As noticed earlier, the time fixed for performance as per

Exhibit A2 agreement expired on 05.02.2008. Exhibits A4 and A4(a) are

the copy of the statement of the bank account of the plaintiff and a

certificate in that regard to show that the balance in the account of the

plaintiff as on 06.02.2008 was Rs.17,50,000/-. Exhibits A5 and A5(a) are

the statement and certificate issued by the Manager of South Indian

Bank Ltd. to show that M/s. St. Thomas Traders was having CCOL

account with the said bank and the balance available on 06.02.2008 was

Rs.10,66,689.90/-. According to PW1, he is the proprietor of St.

Thomas Traders, and his brother Thomson is the proprietor of M/s

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Nedumparambil Jewellers. Exhibits A6 and A6(a) are the statement of

account and certificate issued by the Manager of South Indian Bank

relating to the CCOL account of M/s Nedumparambil Jewellers to show

that as on 06.02.2008, the available amount is Rs.5,00,866.15. PW1 has

a case that he and his brother Thomson offered to advance money to

the plaintiff for purchasing the property and further their father also

offered to advance Rs.3,00,000/- to the plaintiff. But, there is no such

pleadings in the plaint. The father is not examined.

17. There is yet another aspect emerging from the

aforementioned facts. As noticed, the plaintiff never had a case that the

purchase of the property is for the joint business of himself and his

brothers, the second plaintiff and Thomson. It is only at the evidence

stage that such a case was set up. With regard to the financial capacity

of the plaintiff, it had come out that he had only an amount of

Rs.17,50,000/- with him out of the total balance consideration of

Rs.47,00,000/-. With regard to the remaining amount, the source shown

by the plaintiff is the funds of his brothers. It is in the said background

that the new case set up by the plaintiff during evidence stage regarding

purchase for the joint business of the brothers assumes significance.

Such a case is obviously set up in evidence stage to satisfy the

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requirements of "readiness" under Section 16 of the Specific Relief Act,

1963.

18. So also, it is relevant to note that, if the sale was for the

benefit of all the 3 brothers, and the source of consideration was from all

the 3 brothers, and the contribution of the plaintiff is less compared to

the other two brothers, and the first plaintiff is abroad; whereas, the

other brothers are very much in station, nothing prevented the

agreement being entered in either by all the three brothers or by a

brother who is available at station, rather than the one who is abroad.

This suggestion that the case of purchase for all the 3 brothers is a case

set up during evidence to cover up lack of funds with the first plaintiff.

19. In U.N. Krishnamurthy v. A.M. Krishnamurthy [(2023)

11 SCC 775 = 2022 (3) KLJ 779], the Honourable Supreme Court

held thus:

"24. 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

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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."

(emphasis supplied)

20. In Man Kaur (Dead) by LRS v. Hartar Singh Sangha

[(2010) 10 SCC 512], the Honourable Supreme Court held thus:

"40. ... A person 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 the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to

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execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations."

(emphasis supplied)

21. The decisions of the Honourable Supreme Court in Pydi

Ramana @ Ramulu v. Davarasety Manmadha Rao (2024 KHC Online

8268) and Katta Sujatha Reddy v. Siddamsetty Infra Projects (P)

Ltd. (2023 (1) SCC 355) clearly show that in the instant case, the

amendment brought to the Specific Relief Act by Act 18 of 2018 would

be inapplicable and that the amendment is prospective in nature and

cannot be applied to those transactions which took place prior to

amendment.

22. Section 16 of the Specific Relief Act, 1963 (prior to amendment

with effect from 01.10.2018) reads thus:

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16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--

[(a) who would not be entitled to recover compensation for its breach, or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to 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.

Explanation.--For the purposes of clause (c),--

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction."

23. The above provision envisages that the plaintiff in a suit for

specific performance must plead and prove that he had 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 those terms, the

performance of which has been prevented or waived by the defendant. It

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is well settled that there is distinction between the words "readiness"

and "willingness" as occupying in Section 16(c). Both ingredients are

necessary for relief of specific performance, as held by the Honourable

Supreme Court in His Holiness Acharya Swami Ganesh Dassji vs.

Sita Ram Thapar [(1996) 4 SCC 526] and Kalawati v. Rakesh

Kumar [(2018) 3 SCC 658]. From the above decisions, it can be seen

that readiness means the capacity of the plaintiff to perform the contract

which would include his financial position, and willingness relates to the

conduct of the plaintiff.

24. The first defendant was examined as DW1 and for the purpose

of chief examination, he filed affidavit reiterating the contentions in the

written statement. According to DW1, the plaintiff was never ready to

pay the balance sale consideration in spite of repeated demands from

the side of the defendants. According to DW1, the defendants were

ready to hand over the original deeds to the plaintiff for verification and

they have also taken steps for measurement of the property. DW1

deposed that the defendants were in need of money in connection with

the marriage of their daughter and they have also informed the plaintiff

that they will be present in the property along with the surveyor on

30.01.2008. But, the plaintiff did not turn up. DW1 also deposed that

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the agreement was executed between the plaintiff and the defendants

and the defendants never had any transaction with the brothers of the

plaintiff.

25. According to DW1, the plaintiff was not able to arrange the

balance sale consideration within the time fixed for performance and

hence the sale deed could not be executed. The evidence of PW1 that he

and his brother and father were willing to advance money to the plaintiff

for purchasing the plaint schedule property is not supported by

pleadings. Exhibits A4 and A4(a) would clearly show that the balance in

the bank account of the plaintiff as on 06.02.2008 was only

Rs.17,50,000/- and the same was not sufficient for payment of the

balance sale consideration as per the sale agreement.

26. In N.P Thirugnanam v. Dr. R Jagan Mohan Rao and Ors.

[(1995) 5 SCC 115], the Honourable Supreme Court held that the

continuous readiness and willingness on the part of the plaintiff was a

condition precedent for grant of the relief of specific performance and

therefore, the court has to consider the conduct of the plaintiff prior and

subsequent to the filing of the suit for specific performance.

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27. The learned counsel for the appellants pointed out that after filing

the suit, the plaint was rejected for non-payment of the balance court

fee and only two years later, the plaintiff moved an application under

Section 151 of Code of Civil Procedure for taking back the plaint on file.

This conduct of the plaintiff shows that he was not prosecuting the case

vigilantly and the same goes against his plea of continuous readiness

and willingness. Against the order passed by the trial court to take back

the plaint to file by condoning the delay in payment of court fee, the

defendants filed O.P.(C) No. 1414 of 2011 before this Court, and as per

judgment dated 22.3.2012, this Court ordered that the orders passed by

the trial court shall be subject to costs fixed on the respondent/plaintiff

to pay a sum of Rs.50,000/- to the petitioners/defendants, which shall

be made part of the decree ultimately to be passed by the court after

adjudication of the suit. It was also ordered by this Court that even if the

suit happens to be dismissed for any reason whatsoever, the amount

awarded as indicated above to the defendants shall form part of the cost

of the suit.

28. It is well settled that in order to adjudge whether the plaintiff is

ready and willing to perform his part of the contract, the court must take

into consideration the conduct of the plaintiff prior and subsequent to the

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filing of the suit along with other attending circumstances. It is for the

plaintiff to prove that the amount of consideration which he has to pay to

the defendant is available and that he is ready and has always been

willing to perform his part of the contract. If a plaintiff has to prove that

he was always willing to perform his part of the contract, that is, to

perform his obligations in terms of the contract generally, and unless

proved by other evidence, he should step into the witness box and give

evidence and subject himself to cross examination, as held by the

Honourable Supreme Court in Man Kaur (supra).

29. The learned counsel for the appellants pointed out that

readiness and willingness refer to the state of mind and conduct of the

purchaser, as also his capacity and preparedness and therefore, a

plaintiff cannot examine his power of attorney to prove the said fact. It

is well settled that the attorney holder cannot depose or give evidence in

place of his principal for the acts done by the principal or transactions or

dealings of the principal, of which the principal alone has personal

knowledge. The power of attorney of a party can appear only as a

witness in his personal capacity and whatever knowledge he has about

the case, he can state on oath, but he cannot appear as a witness on

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behalf of the party in the capacity of that party. He can only appear in

his own capacity.

30. In this case, the plaintiff has not chosen to enter the witness

box to prove that he was always ready and willing to perform his part of

the contract and subject himself to cross-examination on that issue. As

noticed earlier, PW1 is not a party to Exhibit A2 sale agreement and the

plaintiff executed Exhibit A1 power of attorney in favour of PW1 only

after the expiry of the time fixed for performance as per Exhibit A2 sale

agreement.

31. In Aniglase Yohannan v. Ramlatha [(2005) 7 SCC 534],

the Honourable Supreme Court held thus:

12. The basic principle behind Section 16(c) read with Explanation

(ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.."

32. In Shenbagam vs. K.K. Rathinavel (2022 SCC OnLine SC

71), the Honourable Supreme Court held that in deciding whether or not

to grant the relief of specific performance, the courts must be cognizant

of the conduct of the parties, the escalation in the price of the suit

2024:KER:70656

property and consider whether one party will unfairly benefit from the

decree.

33. In the absence of satisfactory evidence to show that the

plaintiff was having sufficient funds with him to discharge his obligations

in terms of the contract and the failure of the plaintiff to enter the

witness box to prove his readiness and willingness and considering the

conduct of the plaintiff prior and subsequent to the filing of the suit,