Kerala High Court
Lalithamma vs Joseph Mathew on 6 August, 2025
RFA 490 & 497/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
RFA NO. 490 OF 2016
OS NO.569 OF 2011 OF PRINCIPAL SUB COURT, KOTTAYAM
APPELLANT/S:
1 LALITHAMMA, AGED 82 YEARS
W/O.LATE RAGHAVAN PILLAI, RUGMINI SADANAM,
GOVINDAPURAM KARA, KOTTAYAM, NOW RESIDING AT FLAT
NO.F.B CRYSTAL APARTMENTS RAJASOOYAM,
GOVINDAPURAM KARA, KOTTAYAM VILLAGE, KOTTAYAM
TALUK, KOTTAYAM TALUK.[DIED]
2 L.SUSHEELA, D/O.LALITHAMMA, AGED 51 YEARS,
RUGMINI SADANAM, GOVINDAPURAM KARA, KOTTAYAM NOW
RESIDING AT FLAT NO.F.B CRYSTAL APARTMENTS
RAJASOOYAM, GOVINDAPURAM KARA, KOTTAYAM VILLAGE,
KOTTAYAM TALUK, KOTTAYAM TALUK.
[It is recorded that 1st appellant died and second
appellant is the legal heir of deceased first
appellant vide order dated 1.8.2019 in memo dated
8.7.2019]
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SMT.ASHA BABU
SMT.ASWINI SANKAR R.S.
SRI.S.M.PRASANTH
SMT.S.PARVATHI
SHRI.T.RAMPRASAD UNNI
SMT.DEVIKA S.
RESPONDENTs/PLAINTIFF AND 3RD DEFENDANT
1 JOSEPH MATHEW, S/O.M.A.MATHEW, MAMOOTTIL HOUSE,
KARIKKUZHY P.O, THALAVADY VILLAGE, KUTTANADU
RFA 490 & 497/2016
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TALUK, ALAPPUZHA DISTRICT, NOW RESIDING AT FLAT
NO.G.B CRYSTAL APARTMENTS RAJASOOYAM,
GOVINDAPURAM KARA, KOTTAYAM VILLAGE, KOTTAYAM
TALUK, KOTTAYAM TALUK, KOTTAYAM DISTRICT.
PIN-686001.
2 M/S.CRYSTAL APARTMENTS REGISTERED PARTNERSHIP
FIRM HAVING ITS OFFICE AT C.S.I. COMMERCIAL
COMPLEX, BAKER JUNCTION, KOTTAYAM DISTRICT
REPRESENTED BY ITS MANAGING PARTNER BINNY ITTY,
SON OF T.I.ITTY, RESIDING AT THANNICKAL HOUSE,
GOVINDAPURAM KARA, KOTTAYAM VILLAGE, KOTTAYAM
TALUK, KOTTAYAM DISTRICT.686001.
BY ADVS.
SRI.GOKUL DAS V.V.H.
SHRI.S.RANJIT (K/250/1999)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
31.7.2025 ALONG WITH RFA.497/2016, THE COURT ON 6.8.2025
DELIVERED THE FOLLOWING:
RFA 490 & 497/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
RFA NO. 497 OF 2016
OS NO.640 OF PRINCIPAL SUB COURT, KOTTAYAM
APPELLANTS/DEFENDANTS 1 AND 2
1 P.LALITHAMMA, AGED 82 YEARS
WIFE OF LATE RAGHAVAN PILLAI,RUGMINI SADANAM,
GOVINDAPURAM KARA,KOTTAYAM, NOW RESIDING AT FLAT
NO.F.B.CRYSTAL APARTMENTS RAJASOOYAM,
GOVINDAPURAM KARA,KOTTAYAM VILLAGE, KOTTAYAM
TALUK, KOTTAYAM TALUK. [DIED]
2 L. SUSHEELA, D/O LALITHAMMA, AGED 51 YEARS,
RUGMINI SADANAM,GOVINDAPURAM KARA, KOTTAYAM NOW
RESIDING AT FLAT NO.F.B. CRYSTAL APARTMENTS
RAJASOOYAM,GOVINDAPURAM KARA, KOTTAYAM VILLAGE,
KOTTAYAM TALUK,KOTTAYAM TALUK.
[It is recorded that the 1st appellant died and
the 2nd appellant is the legal heir of deceased 1st
appellant vide order dated 1.8.19 in memo dated
8.7.19]
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SMT.ASHA BABU
SMT.ASWINI SANKAR R.S.
SRI.S.M.PRASANTH
SMT.S.PARVATHI
SHRI.T.RAMPRASAD UNNI
SMT.DEVIKA S.
RESPONDENTS/PLAINTIFFS AND 3RD DEFENDANT
1 MRS.MARY GEORGE, WIFE OF LATE REV. A.T.GEORGE,
RFA 490 & 497/2016
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RESIDING AT FLAT NO.G.A.CRYSTAL APARTMENTS,
RAJASOOYAM,GOVINDAPURAM KARA, KOTTAYAM VILLAGE,
KOTTAYAM TALUK,KOTTAYAM DISTRICT.
2 MS CRYSTAL APARTMENTS REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT C.S.I COMMERCIAL COMPLEX,
BAKER JUNCTION,KOTTAYAM DISTRICT, REPRESENTED BY
ITS MANAGING PARTNER, BINNY ITTY, SON OF
T.I.ITTY, RESIDING AT THANNICKAL HOUSE,
GOVINDAPURAM KARA,KOTTAYAM VILLAGE, KOTTAYAM
DISTRICT.
BY ADVS.
SRI.GOKUL DAS V.V.H.
SHRI.S.RANJIT (K/250/1999)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
31.7.2025 ALONG WITH RFA.490/2016, THE COURT ON 6.8.2025
DELIVERED THE FOLLOWING:
RFA 490 & 497/2016
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JUDGMENT
Dated : 6th August 2025
Defendants 1 & 2 in OS 569/2011 on the file of the Principal Sub Court,
Kottayam, are the appellants in RFA 490/2016. Defendants 1 and 2 in OS
640/2011 on the file of the Principal Sub Court, Kottayam are the appellants in
497/2016. The above suits were filed by the respective plaintiffs against the
common defendants for specific performance and consequential reliefs. Since the
dispute involved in both these suits are identical and the evidence to be let in is
also identical, the trial court conducted joint trial of these suits and disposed of the
same by a common judgment. In the above circumstances, these appeals are also
heard and disposed of by this common judgment. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before the trial
court).
2. The 3rd defendant was the builder, who had undertaken to construct
12 flats in the plaint schedule properties belonging to defendants 1 & 2. The
plaintiffs are the proposed buyers of two apartments to be constructed by the 3 rd
defendant in the plaint schedule property. On 24.4.2006, the defendants 1 to 3
entered into Ext.A1 agreement and thereby the 3rd defendant agreed to develop the
scheduled property and construct a multi-storied residential flat complex and to
sell the same to prospective buyers. The defendants 1 & 2 also agreed to assign the
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undivided landed property in favour of the prospective buyers. The consideration
was agreed at Rs.17,00,000/- and out of which Rs.98,750/- is to be paid in cash
and towards the balance price, a flat in the proposed flat complex was also agreed
to be given. Defendants 1 & 2 also retained 1/12 undivided share in the land. The 3 rd
defendant was permitted to sell the remaining flats and 11/12 undivided share in the
landed property. According to the plaintiffs, the 3rd defendant constructed the flat
complex, paid Rs.98,750/- to defendants 1 & 2 and a flat was also handed over to
defendants 1 & 2 and they are residing therein. According to the plaintiffs, what
remains is only execution of the necessary deed of conveyance by defendants 1 &
2 in favour of the 3rd defendant or his nominees.
3. Both the plaintiffs in these suits entered into an agreement with the
3rd defendant to purchase one flat each on a consideration of Rs.16,36,250/- in
O.S. 569/2011, and at Rs.17,47,500/- in O.S. 640/2011. According to them, they
have paid the entire amounts to the defendants as per the agreement and in spite of
that, due to difference of opinion between the defendants, the sale deed in respect
of the apartment are not executed in favour of the plaintiffs. It is also alleged that
though the 3rd defendant has completed the construction, only provisional
occupancy certificate was obtained and on the basis of the provisional occupancy
certificate, electricity connection was also obtained. They were given possession
and accordingly they was occupying the respective flats. However, construction of
the waste treatment plant, licence from the Pollution Control Board for waste
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management, approval of the Fire Force authorities etc., were not yet obtained by
the builder. Defendants 1 & 2 refused to execute the sale deed alleging that the 3 rd
defendant has not performed his part. It was in the above context that the plaintiffs
preferred these suits seeking specific performance of the agreement for sale and
consequential reliefs.
4. The defendants 1 & 2 filed a written statement admitting the
execution of the sale agreements in favour of the plaintiffs as well as the
agreement with the builder. In the written statement they would contend that the
3rd defendant has not obtained necessary documents like permanent occupancy
certificate, certificate from Pollution Control Board, Fire force etc., and hence
without completing those formalities they are unable to execute the sale deed. The
3rd defendant filed a written statement accusing defendants 1 & 2 for causing
hindrance in the completion of the work and in obtaining necessary certificates
from the authorities.
5. The trial court framed necessary issues. PWs1 & 2 were examined
on the part of the plaintiffs and DW1 was examined on the part of defendants 1 &
2. Exts.A1 to A25 and B1 to B14 were marked. After appreciating the evidence on
record, the trial court decreed the suits. Being aggrieved by the above judgment
and decree of the trial court, defendants 1 & 2 preferred these appeals.
6. Now the points that arise for consideration are the following :-
1) Whether the trial court has exercised the discretion under Section 20
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of the Specific Relief Act, correctly ?
2) Whether the impugned judgment and decree calls for any interference
in the light of the grounds raised in the appeal ?
7. Heard Sri.K.Ramakumar, the learned Senior counsel for the
appellants and Sri.Gokul Das V.V.H, the learned counsel for the
respondents/plaintiffs. The 3rd respondent did not turn up.
8. Before this Court also the learned Senior counsel would argue that it
was due to the default of the 3rd defendant, the defendants 1 & 2 could not execute
the sale deed in favour of the plaintiffs. According to the learned Senior counsel,
since the 3rd defendant has not obtained the permanent occupancy certificate,
building number, certificate from the Pollution Control Board etc. they will not be
able to assign the flat in their possession to anybody else. Further according to
him, if the sale deed is executed in favour of the plaintiffs, defendants 1 & 2 will
be left without any remedies. Therefore, according to the learned senior counsel,
unless and until the 3rd defendant performs his part of the agreement in full, they
are not supposed to perform their part of the contract. Though he has not raised
any serious grievance against the plaintiffs herein, according to him, if defendants
1 & 2 are forced to assign their undivided share in the land, they will be the
ultimate losers. Even at the time of argument, the learned Senior counsel
submitted that, as and when the 3rd defendant performs his part of the contract in
full, they are ready to execute the sale deed in favour of the plaintiffs.
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9. On the other hand, the learned counsel for the plaintiffs would argue
that the 3rd defendant has constructed the building about 20 years back, possession
was handed over and till now, the plaintiffs are residing in the flat on the strength
of provisional occupancy certificate obtained. They also obtained electricity
connection, ration card etc, for the said building. He would also argue that, it is the
defendants 1 and 2 who are standing in the way of getting the necessary
certificates from the authorities concerned. Therefore, the learned counsel would
argue that, since the plaintiffs have paid the entire amount due to the defendants
and there is no breach of contract from their side, they cannot be crucified
indefinitely, for the dispute between defendants 1 & 2 and the 3rd defendant.
10. At the time of arguments, the learned counsel for the respondents
has relied upon the judgment of a Division Bench of this Court in W.A.1495/2015
filed by defendants 1 & 2 herein against the 3 rd defendant and others, seeking
various reliefs. The reliefs sought for in the writ petitions include a declaration
that the flat complex constructed by the builder and involved in these suits is
illegal, to command the Municipality to cancel the occupancy certificate already
issued, to take penal action against the builder, for a direction to the Municipality
to ensure that the conditions of the permit and other conditions of the Kerala State
Pollution Control Board regarding waste disposal etc, are complied before issuing
the occupancy certificate, and also for a direction to the Municipality to make
necessary changes in the assessment register with regard to the ownership of the
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property purchased by the petitioners in W.P.(C).4619/2014.
11. From the above judgment it is revealed that, at the instance of
defendants 1 & 2, the occupancy certificate issued to the flat complex was set
aside by the Tribunal for Local Self Government Institutions. However, this Court
in the above writ petition quashed the order of the Tribunal and thereby revived
the occupancy certificate, the prayer for directing the Municipality to cancel the
occupancy certificate was rejected, permitted the builders/allottees to approach the
Municipality for regularisation of the defects if any, pointed out by the
Municipality in the construction of the apartment, directed the builders/allottees to
obtain clearance from the Kerala State Pollution Control Board and also permitted
the Municipality to recall the occupancy certificate if the builder/allottees refuses
to comply with the above direction. The Municipality was also directed to make
necessary changes in the assessment register with regard to the ownership of the
property purchased by them, after regularisation or rectification of mistakes. In
appeal, the Division Bench refused to interfere with the above findings of the
learned Single Judge.
12. From the above judgment it appears that in connection with the
construction of the flat complex there arose some dispute between the builder and
defendants 1 and 2. It was followed by complaints to the Municipality, Tribunal
for Local Self Government Institutions, civil suit as well as writ petitions before
this court. Stop memo was issued by the Municipality and occupancy certificate
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was cancelled by the Tribunal for Local Self Government Institutions, at the
instance of the defendants 1 and 2. The above order of the Tribunal was set aside
by this court and the same was upheld in appeal, of course, subject to the final
decision of the civil court.
13. From the above proceedings itself it can be seen that it was
defendants 1 & 2 who had moved to various authorities challenging the validity of
the occupancy certificate issued by the Municipality alleging violation of the
permit and forgery of signature in the application for renewal of permit. In the
written statement, defendants 1 & 2 have no case that the plaintiffs have not
complied any terms in the sale agreement entered into with the builder in
continuation of the agreement between the defendants. Their complaint is only
against the 3rd defendant/builder. Since the builder has completed the construction
and handed over possession of the respective apartments to the allottees including
the plaintiffs herein and in the judgment in W.A.1495/2015 a Division Bench of
this Court has directed the builder/allottees to approach the authorities concerned
for the occupancy certificate and allied matters, subject to the final decision of the
civil court in the dispute between the defendants, there is no justification for
protracting specific performance any further.
14. It is true that, as far as the defendants 1 and 2 are concerned, there
was some default on the part of the 3 rd defendant/builder. However, for the said
default on the part of the 3rd defendant, the plaintiffs who are not at default, cannot
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be crucified. Even if the defendants 1 & 2 have any grievance against the 3 rd
defendant, the remedy is somewhere else and on that ground, the specific
performance could not be denied to the plaintiffs.
15. The learned Senior counsel relying upon the decision of a Division
Bench of this Court in Antony K.O. And Another v. M.K.Krishnankutty
Menoki and Others, 2017 (1) KHC 479 would argue that, the trial court has not
even considered the discretion available under Section 20 of the Specific Relief
Act and while decreeing specific performance and as such, on that sole ground,
the impugned judgment and decree are bad in law. In paragraph 11, the Division
Bench has held that :-
".......The various expressions embodied under Section 20
of the Specific Relief Act would show that the Court is not bound
to grant a decree for specific performance, even though it was
found to be lawful to do so and the Court has to exercise its
discretion. The question at what time the Court has to exercise its
discretion is also well evident from a mere reading of Section 20
of the Specific Relief Act, which would arise only after finding
that it is lawful to grant the relief sought for in favour of the
plaintiff. In all other provisions of law wherein discretion could
be exercised stands for exercising discretion in a positive way for
granting some relief to the parties and not for refusing any relief.
But, the discretionary power incorporated and embodied under
Section 20 stands on a different footing in which the Court has to
exercise discretion not for granting the relief, but for refusing the
same. It has got its own character and peculiarity, apart from
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other provisions contained in other laws for the time being in
force. So, the real impact of Section 20 should be and must be
understood under the background of those aspects. It is a
mandate upon the Court to address the question of exercise of
discretion before granting or refusing a decree for specific
performance and it has to be exercised only after finding that it is
lawful to grant a relief of specific performance in favour of the
plaintiff. A decree which was granted without addressing and
without exercising the discretion under Section 20 of the said Act
is bad in law....."
16. Section 20 of the Specific Relief Act reads as follows :-
"20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is discretionary,
and the court is not bound to grant such relief merely because it is
lawful to do so; but the discretion of the court is not arbitrary but
sound and reasonable, guided by judicial principles and capable of
correction by a court of appeal.
(2)The following are cases in which the court may properly exercise
discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at
the time of entering into the contract or the other circumstances
under which the contract was entered into are such that the
contract, though not voidable, gives the plaintiff an unfair
advantage over the defendant; or
(b) where the performance of the contract would involve some
hardship on the defendant which he did not foresee, whereas its
non-performance would involve no such hardship on the plaintiff;
or
(c) where the defendant entered into the contract under
circumstances which though not rendering the contract voidable,
makes it inequitable to enforce specific performance.
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Explanation 1.--Mere inadequacy of consideration, or the mere fact
that the contract is onerous to the defendant or improvident in its
nature, shall not be deemed to constitute an unfair advantage within
the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.--The question whether the performance of a contract
would involve hardship on the defendant within the meaning of clause
(b) shall, except in cases where the hardship has resulted from any act
of the plaintiff subsequent to the contract, be determined with reference
to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific
performance in any case where the plaintiff has done substantial acts
or suffered losses in consequence of a contract capable of specific
performance.
(4) The court shall not refuse to any party specific performance of a
contract merely on the ground that the contract is not enforceable at
the instance of the party."
17. From the evidence on record it can be seen that, there was no breach
of contract on the part of the plaintiffs. They have paid the entire amount, as per
the terms of the contract, possession was handed over to them by the builder and
they are also occupying the respective apartments for the last several years. Since
the agreement was for construction and purchase of an apartment and the entire
amount due to the defendants 1 and 2 and the builder was already paid, the builder
has no objection in decreeing specific performance. Even if specific performance
is denied, the same will not in any way help the defendants 1 and 2 as the lion's
share of the consideration was due to the builder, who has no objection in
decreeing the suit. In the facts of the case, decreeing specific performance will not
in anyway give any undue advantage to the plaintiffs. At the same time, if specific
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performance is denied to them, they will be put to irreparable injury, loss and
hardships. Further, the plaintiffs who are in possession and enjoyment of the
apartment for the last several years, will lose their place of abode and the same
will not only be inequitable and denial of justice to them but will also result in
unfair advantage to the 3rd defendant/builder. Therefore, the trial court was
perfectly justified in exercising the discretion to grant specific performance in
favour of the plaintiffs. Though the trial court has not referred to Section 20 of the
Specific Relief Act, I do not find any irregularity or illegally in the discretion
exercised by it, so as to call for any interference. Points answered accordingly.
18. In the result, the appeal is dismissed. Considering the facts I order no
costs.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/1.8.
