Kerala High Court
P.N. Radhamoniamma vs V. Arun Kumar on 24 September, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
R.F.A No. 283/2023
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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. 283 OF 2023
JUDGMENT DATED 05.08.2023 IN OS NO.72 OF 2012 OF PRINCIPAL SUB COURT,
ALAPPUZHA
APPELLANT/S:
P.N. RADHAMONIAMMA
AGED 60 YEARS
D/O.NANDINIAMMA, THAYYILVEEDU, MARANKULANGARA, KALAVOOR
VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT, PRESENTLY
RESIDING AT NO.125, ISTFLOOR, VINAYAKA LAYOUT 11ND STAGE,
VINAYAKA NAGAR, BANGALORE, KARNATAKA STATE, PIN - 560040
BY ADVS.
A.T.ANILKUMAR
V.SHYLAJA
RESPONDENT/S:
V. ARUN KUMAR
AGED 32 YEARS
, S/O. VIJAYANPILLAI, CENTRAL GOVERNMENT EMPLOYEE, RESIDING
AT AMINA APARTMENT, MATTUMMEL JUNCTION, THEVARA, KOCHI,
KERALA STATE, PIN - 682013
BY ADV SRI. FRANKLIN CHELLATH
SMT. M.D. JAYALATHA
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10.09.2024, THE
COURT ON 24.09.2024 DELIVERED THE FOLLOWING:
R.F.A No. 283/2023
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SATHISH NINAN & JOHNSON JOHN, JJ.
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R.F.A. No. 283 of 2023
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Dated this the 24th day of September, 2024
JUDGMENT
JOHNSON JOHN, J
The appellant is the defendant in O.S. No. 72 of 2012 of the Sub
Court, Alappuzha. She has filed the appeal challenging the decree for
specific performance of an agreement for sale.
2. As per the plaint averments, the plaintiff and defendant entered
into an agreement for sale of the plaint schedule property owned by the
defendant to the plaintiff at the rate of Rs. 56,000/- per cent for the
extent which is found to be available on measurement. The agreement
was executed on 24.10.2011. It is stated that the defendant through her
brother accepted Rs.50,000/- as advance sale consideration on
27.09.2011 and Rs.5,00,000/- out of the total sale consideration was
paid to the defendant by transfer from HDFC Bank, Alappuzha on
24.10.2011.
3. It is stated that the defendant is bound to execute the sale deed
in favour of the plaintiff by accepting the balance sale consideration
within 3 months from the date of the agreement and the defendant also
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agreed to measure out the property and convince the extent and
boundaries of the property to the plaintiff before the execution of the
sale deed. The plaintiff was always ready and willing and able to perform
the contract by paying the balance sale consideration.
4. In spite of repeated demands, the defendant failed to perform
her obligations under the contract. She issued an advocate notice to the
plaintiff raising false and frivolous contentions, to which the plaintiff sent
a reply stating that he is willing to perform the agreement by paying the
balance sale consideration. But, the defendant failed to respond to the
same and hence the plaintiff issued a lawyer's notice on 06.01.2012 to
the defendant demanding her to make arrangements to measure out the
property and to hand over the title deed for preparing the sale deed at
least by 19.01.2011 or before the expiry of the time fixed for
performance. Even though the defendant accepted the notice, there was
no response and she also failed to perform her obligations under the
agreement and thereby committed breach of contract.
5. In the written statement, the defendant contended that the
agreements dated 24.10.2011 and 27.09.2011 are created fraudulently
and it was one T. Satheesh @ Satheesh Babu who approached the
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defendant for purchasing the property for the purpose of constructing a
school for Mata Amritanandamayi and hence the defendant agreed for
the sale and executed the agreements. It is stated that the above said
Satheesh introduced himself as a broker to the brother of the defendant
by representing that the property is for the purpose of constructing a
school for Mata Amritanandamayi and thereafter on 15.11.2011, the
plaintiff and men under him trespassed into the plaint schedule property
and cut down trees and hence the defendant rescinded the contract and
the advance amount was set off against the loss sustained by the
defendant. The agreement dated 24.10.2011 is inoperative and
unenforceable. When the plaintiff threatened to remove trees and soil
from the plaint schedule property, the brother of the defendant filed O.S
No. 858 of 2011 before the Munsiff's Court, Alappuzha. The plaintiff was
never ready and willing to perform his part of the contract and therefore,
not entitled to any of the reliefs sought for.
6. In the trial court, PWs 1 and 2 were examined and Exhibits A1
to A15 were marked from the side of the plaintiff. From the side of
defendant, DW1 was examined and Exhibits B1 to B3 were marked.
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7. After considering the evidence on record and hearing both
sides, the trial court found that the plaintiff is entitled to get specific
performance of the agreement for sale and also held that if for any
reason, it is found that specific performance is not possible, the plaintiff
is entitled to realize the advance amount with interest from the
defendant and her assets.
8. Heard Sri. A.T. Anilkumar, the learned counsel for the appellant
and Sri. Franklin Chellath, the learned counsel for the respondent, and
perused the records.
9. The learned counsel for the appellant argued that the plaintiff
has not proved his readiness and willingness to carry out the obligations
under the contract and there is no satisfactory evidence to prove his
capacity to pay the balance sale consideration during the period fixed for
performance. It is also argued that the plaintiff obtained the consent of
the defendant for sale of the property on misrepresenting that the
property is for the purpose of constructing a school for Mata
Amritanandamayi and the defendant, a devotee of Mata
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Amritanandamayi, agreed for the sale of the property believing that the
property is for charitable purpose.
10. It is also argued that the plaintiff has not approached the
court with clean hands and the conduct of the plaintiff prior and
subsequent to the filing of the suit will demonstrate that he is not
entitled for the discretionary relief of specific performance.
11. The points that arise for determination are the following:
1. Whether the plaintiff proved his readiness and willingness to carry out
his obligations under the contract?
2. Whether the impugned judgment and decree are legally sustainable?
Points 1 and 2:
12. The plaintiff was examined as PW1. The agreement for sale
dated 24.10.2011 executed by the defendant in favour of the plaintiff
with respect to the plaint schedule property is marked as Exhibit A1. The
case put forward by the plaintiff is that the defendant failed to take steps
to measure out the property to convince the plaintiff regarding the
extent and boundaries within the time fixed for performance. But,
according to the defendant, the plaintiff was not ready and willing to
carry out his obligations under the contract and he was not having
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sufficient funds to pay the balance sale consideration during the period
fixed for performance.
13. It is well settled that the foundation of a suit for specific
performance lies in ascertaining whether the plaintiff has come to the
court with clean hands and has, through his conduct, demonstrated that
he has always been willing to perform the contract, as held by the
Honourable Supreme Court in Shenbagam and Ors. v. K. K.
Rathinavel [AIR 2022 SC 1275]. In page 3 of Exhibit A1, it is stated as
follows:
"തീറർത്ഥ ബാക്കി തുക ഇന്നു മുതൽ മൂന്നു മാസത്തിനകം എനിക്കു തന്നു
താങ്കളുടെയോ താങ്കൾ നിർദേശിക്കുന്ന പേരുകാരുടെയോ
സ്ഥാപനത്തിന്റെയോ പേരിൽ ടി വസ്തു അളന്നും അതിരും വിസ്തീർണ്ണവും
ബോദ്ധ്യപ്പെടുത്തി എഴുതി വാങ്ങിക്കൊള്ളേണ്ടതുമാകുന്നു."
14. When the above portion in Exhibit A1 was brought to the notice
of the plaintiff, in cross examination, he stated that the understanding
was that the defendant will take steps for measuring the property.
15. The evidence of PW1 in cross examination shows that the
defendant signed Exhibit A1 agreement while she was in her house at
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Bangalore and that the plaintiff has not signed Exhibit A1. From Exhibit
A1, it can be seen that the same is signed by the vendor alone and
delivered to the purchaser and accepted by the purchaser. An
agreement of sale comes into existence when the vendor agrees to sell
and the purchaser agrees to purchase, for an agreed consideration on
agreed terms and therefore, an agreement of sale signed by the vendor
alone and delivered to the purchaser and accepted by the purchaser is a
valid contract, as held by the Honourable Supreme Court in Aloka Bose
v. Parmatma Devi [(2009) 2 SCC 582].
16. In this case, the defendant has raised a contention in the
written statement that the plaintiff obtained the signature of the
defendant in the sale agreement by misrepresentation and fraud. The
alleged misrepresentation is that the broker, T. Satheesh, represented to
the defendant that the property is for the purpose of constructing a
school for Mata Amritanandamayi. It is pertinent to note that the
defendant has no case that she has not understood the contents of
Exhibit A1 agreement before executing the same. The contentions in the
written statement clearly shows that the defendant executed Exhibit A1
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after understanding that the same is an agreement for sale of her
property in favour of the plaintiff.
17. It is in evidence that the defendant filed O.S. No. 858 of 2011
seeking prohibitory injunction against the plaintiff herein with respect to
the very same property and in paragraph 2 of Exhibit A10, plaint in O.S.
No. 858 of 2011, execution of the sale agreement between the plaintiff
and the defendant with respect to the plaint schedule property on
24.10.2011 and receipt of the advance amount, are clearly admitted.
There is no averment in Exhibit A10 plaint regarding any
misrepresentation or fraud from the side of the plaintiff herein in
connection with the execution of the sale agreement.
18. Further the defendant has also not chosen to enter the
witness box to depose regarding the alleged misrepresentation and fraud
and subject herself to cross examination on that issue. Therefore, we
find no reason to disagree with the finding of the trial court in this
regard.
19. DW1 is the brother of the defendant and in his chief affidavit, it
is stated that the plaint schedule property is allotted to the thavazhy of
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the defendant and the defendant has two children born before the
coming into force of the Kerala Joint Hindu Family (Abolition) Act, 1975
and therefore, the defendant is not having absolute right over the
property to alienate the same. Partition deed dated 29.04.1983 is
marked as Exhibit B1. Exhibits B2 and B3 are the aadhar cards of the
children of the defendants.
20. As observed by the trial court, there is nothing in Exhibit B1 to
show that the plaint schedule property is allotted to the thavazhy of the
defendant. It is pertinent to note that the defendant has not raised any
contention in the written statement that her daughters are having any
right over the plaint schedule property. Further, it is well settled that the
vendor could not be allowed to urge his own defective title as an answer
to a suit for specific performance by the purchaser and therefore, the
contention of the appellant in this regard is not sustainable.
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) will clearly show that in the instant case, the
amendment brought to the Specific Relief Act by Act 18 of 2018 would
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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:
6. 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;
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(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
is well settled that there is distinction between "readiness" and
"willingness" to perform the contract and 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. 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
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therefore, the court has to consider the conduct of the plaintiff prior and
subsequent to the filing of the suit for specific performance.
25. In cross examination, PW1 stated that prior to Exhibit A1,
there was an agreement with the brother of the defendant regarding the
sale of the plaint schedule property and that subsequently, they went to
the house of the defendant at Bangalore and obtained her signature in
Exhibit A1 sale agreement. The evidence of PW1 shows that his father-
in-law and friends, Satheesh Babu and Sukumaran, were also present at
Bangalore at the time of execution of the sale agreement. PW1 would
say that Satheesh Babu, a friend of his father-in -law, made the proposal
for purchasing the plaint schedule property situated adjacent to the
property of his wife. The evidence of PW1 in cross examination shows
that there was previous litigation connecting the plaint schedule
property. Exhibit A13 is the copy of the plaint in O.S. No. 302 of 2011
and Exhibit A14 is the copy of the judgment dated 08.11.2011 in O.S.
No. 302 of 2011 on the file of the Additional Munsiff, Alappuzha. From
Exhibits A13 and A14, it can be seen that the said suit filed by the
neighbours of the defendant seeking fixation of boundary and permanent
injunction, was dismissed as not pressed.
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26. In cross examination, PW1 admitted that his father-in-law,
Muraleedharan, had taken initiative for withdrawing O. S. No. 302 of
2011. However, he denied the suggestion that the said suit was filed at
the instance of his father-in-law, Muraleedharan, for grabbing the
property of the defendant. Exhibit A10 is the copy of the plaint in O.S.
No. 858 of 2011 filed by the defendant herein against the plaintiff herein
alleging that PW1 and his father-in-law, Muraleedharan, trespassed into
the plaint schedule property on 15.11.2011 and cut and removed trees
from the property. Exhibit A6 is the lawyer notice dated 25.11.2011
issued on behalf of the defendant to the plaintiff before the institution of
Exhibit A10 suit. In Exhibit A6 notice, it is stated that since the vendee,
without permission or consent of the vendor, committed waste in the
plaint schedule property, the vendor has rescinded the contract dated
24.10.2011.
27. It is not in dispute that the time fixed for performance as per
Exhibit A1 agreement expired on 23.01.2012. In cross examination, PW1
admitted that the total sale consideration is about Rs.42,00,000/-. When
questioned about his financial capacity, PW1 stated that he is having a
PF account and his wife is in possession of gold ornaments and further,
he also intended to avail a loan.
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28. 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
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)
29. In Man Kaur (Dead) by LRS v. Hartar Singh Sangha
[(2010) 10 SCC 512], the Honourable Supreme Court held thus:
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"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
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
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defendant, as he was not "ready and willing" to perform his
obligations."
30. PW2 is the Credit Manager of Axis Bank, Kochi Branch and
Exhibit A15 financial sanction relating to the loan application of the
plaintiff shows the approval number of Axis Bank as
PH_LNPHG_FLOATING_BRE//18924105/RAC-KOCHI RAC/23-24. In cross
examination, PW2 admitted that Exhibit A15 is on the basis of the credit
appraisal of the financial year 2022-2023. The evidence of PW2 shows
that the Bank has not verified the financial situation of PW1 during the
period 2012-2013.
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.."
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32. It is well settled that the readiness and willingness refer to the
state of mind and conduct of the purchaser, as also his capacity and
preparedness. In this case, the plaintiff has not adduced any satisfactory
evidence to prove his financial capacity to discharge his obligations in
terms of the contract during the time fixed for performance and it can be
seen from Exhibit A1 agreement that measurement of the property was
not a condition precedent for payment of the balance sale consideration.
There is specific reference about the pendency of O.S. No. 302 of 2011
in Exhibit A1 agreement and it is stated in the sale agreement that the
buyer has to take initiative for settling the said case and if in case the
parties to the said suit committed any breach of the terms of the
settlement, the seller will not be liable for the same.
33. As noticed earlier, it can be seen from Exhibit A14 that O. S.
No. 302 of 2011 was a suit for fixation of boundary and permanent
injunction. Since the plaintiff entered into Exhibit A1 agreement for
purchasing the plaint schedule property accepting the risk and
responsibility for settling O.S. No. 302 of 2011 and also measuring and
satisfying about the extent of the property, it cannot be held that there
is any condition precedent to be performed by the defendant before the
payment of balance sale consideration by the plaintiff.
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34. In Aniglase Yohannan v. Ramlatha [(2005) 7 SCC
534], the Honourable Supreme Court held thus:
" 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."
35. In Lourdu Mari David & others v. Louis Chinnayya Arogia
Swamy & others [1996 (5) SCC 589], it is held that a party who seeks
to avail of the equitable jurisdiction of a court and specific performance,
being an equitable relief, must come to the court with clean hands. A
party who makes false allegations does not come with clean hands and is
not entitled to equitable relief.
36. In Sardar Singh v. Smt. Krishna Devi & another [1994 (4)
SCC 18], the Honourable Supreme Court held that the circumstances
specified in Section 20 are only illustrative and not exhaustive and that
the court would take into consideration the circumstances of each case,
the conduct of the parties and the respective interest under the contract.
37. In Umabai v. Nilkanth Dhondiba Chavan [2005 (6) SCC
243], the Honourable Supreme Court held that the conduct of the
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plaintiff must be judged having regard to the entirety of the pleadings,
as also, the evidence brought on record.
38. In this case, it is in evidence that the plaintiff was not having
sufficient funds with him to discharge his obligations during the period
fixed for performance and that the plaintiff entered into Exhibit A1
agreement during the pendency of O.S. No. 302 of 2011. The
circumstances in which the plaintiff obtained the signature of the
defendant in Exhibit A1 agreement, while she was in her house at
Bangalore and the involvement of the father-in-law of the plaintiff in
connection with the withdrawal of O.S. No. 302 of 2011 and subsequent
suit, O.S. No. 858 of 2011 filed by the defendant alleging trespass and
cutting and removal of trees from the plaint schedule property would
clearly indicate that the conduct of the plaintiff was not blemishless.
39. Since the plaintiff has not succeeded in establishing that he
approached the court with clean hands, he is not entitled to equitable
relief of specific performance and therefore, we find that the impugned
judgment is liable to be set aside. In the result, the impugned judgment
is set aside and instead, we grant a decree for return of the advance sale
consideration of Rs.5,50,000/- by the defendant to the plaintiff with
interest at the rate of 12% per annum from 24.10.2011 to 02.03.2012
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and thereafter, at the rate of 9% per annum till realization with costs
and charged upon the plaint schedule property.
This appeal is allowed as above.
sd/-
SATHISH NINAN,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
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APPELLANT'S ANNEXURES: NIL
RESPONDENT'S ANNEXURES:
Annexure R1 A PHOTOCOPY OF THE CERTIFICATE OF PURCHASE
ISSUED IN OA 600/1972 DATED 10.06.1974
True Copy
P.S to Judge.
rv
