Kerala High Court
K.P.Sethunath(Died) vs K.Lalitha & Others on 17 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
RFA NO. 240 OF 2011
AGAINST THE DECREE AND JUDGMENT DATED 28.10.2010 IN O.S. NO.106 OF 2007
ON THE FILES OF THE SUB COURT, CHERTHALA
APPELLANT/PLAINTIFF:
1 K.P.SETHUNATH (DIED)
S/O PRADEEP, AGED 42 YEARS
KILIYANVELIYIL HOUSE, CHARAMANGALAM MURI,
THENNERMUKKOM SOUTH VILLAGE, MUHAMMA P.O.
ADDL A2 BEENA SETHUNATH
W/O.LATE K.P.SETHUNATH, KILIYANVELIYIL HOUSE, CHARAMANGALAM
MURI, THENNERMUKKOM SOUTH VILLAGE, MUHAMMA P.O.
ALAPPUZHA DISTRICT.
ADDL A3 AKSHAY
S/O.LATE K.P.SETHUNATH,
AGED 13 YEARS (MINOR) KILIYANVELIYIL HOUSE, CHARAMANGALAM
MURI, THENNERMUKKOM SOUTH VILLAGE, MUHAMMA P.O.
ALAPPUZHA DISTRICT.
ADDL A4 ANEKH
S/O.LATE K.P.SETHUNATH, AGED 11 YEARS (MINOR) KILIYANVELIYIL
HOUSE, CHARAMANGALAM MURI, THENNERMUKKOM SOUTH VILLAGE,
MUHAMMA P.O., ALAPPUZHA DISTRICT.
ADDL A5 ANAKHA
D/O.LATE K.P.SETHUNATH, AGED 11 YEARS (MINOR)
KILIYANVELIYIL HOUSE, CHARAMANGALAM MURI, THENNERMUKKOM
SOUTH VILLAGE, MUHAMMA P.O. ALAPPUZHA DISTRICT.
(APPELLANTS 3 TO 5 REPRESENTED BY MOTHER , 2ND APPELLANT)
(ADDITIONAL A2 TO A5 ARE IMPLEADED AS LEGAL HEIRS OF
DECEASED SOLE APPELLANT AS PER ORDER DATED 16/6/14 IN
I.A.NO. 1260/14)
ADDL A2 TO A5 BY ADV SMT.BINDU SASTHAMANGALAM
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R.F.A. No. 240 of 2011
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RESPONDENTS/DEFENDANTS 2 TO 5:
1 K.LALITHA, W/O UDAYAN,
KALARICKAVELIYIL HOUSE, CHERTHALA SOUTH MURI, CHERTHALA
SOUTH VILLAGE, CHERTHALA P.O.688552.
2 RENJITH, S/O UDAYAN
KALARICKAVELIYIL HOUSE, CHERTHALA SOUTH MURI, CHERTHALA
SOUTH VILLAGE, CHERTHALA P.O.688552.
3 NISHAMOL, D/O UDAYAN
KALARICKAVELIYIL HOUSE, CHERTHALA SOUTH MURI, CHERTHALA
SOUTH VILLAGE, CHERTHALA P.O.688552.
4 RAKESH, S/O UDAYAN
KALARICKAVELIYIL HOUSE, CHERTHALA SOUTH MURI, CHERTHALA
SOUTH VILLAGE, CHERTHALA P.O.688552.
R1 TO R4 BY ADVS.
SRI.V.N.MADHUSUDANAN
DR.V.N.SANKARJEE
SMT.R.UDAYA JYOTHI
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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R.F.A. No. 240 of 2011
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JUDGMENT
Dated this the 17th day of February, 2025
This regular first appeal has been filed under
Section 96 read with Order XLI Rule 1 of the Code of Civil
Procedure, 1908, challenging the decree and judgment
dated 28.10.2010 in O.S. No.106/2007 on the files of the
Court of the Subordinate Judge, Cherthala. The appellant
herein is the plaintiff and the respondents herein are
defendants 2 to 5.
2. Heard the learned counsel for appellants 2 to 5,
who are the legal heirs of the deceased appellant and the
learned counsel appearing for the respondents. Perused the
verdict under challenge and the records of the trial court.
3. Parties in this appeal shall be referred with
reference to their status before the trial court.
4. The suit emanated at the instance of the plaintiff,
when there was failure on the part of the defendants to
execute sale deed in favour of the plaintiff, in relation to the
plaint schedule property belonged to the defendants, in
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terms of an agreement of sale executed between the
plaintiff and defendants on 05.03.2007. The case of the
plaintiff is that, the defendants agreed to sell 20 cents of
property for a total consideration of Rs.8,25,000/- i.e.
Rs.4,00,000/- for 20 cents at the rate of Rs.20,000/- per
cent and Rs.4,25,000/- for the building, within a period of
six months and on the date of execution of agreement, Rs.1
Lakh was paid by the plaintiff as advance. Even though, the
plaintiff has been ready and willing to purchase the
property within a period of six months, the defendants
failed to execute the sale deed, even after issuance of legal
notice demanding the same on 17.09.2007. Accordingly,
the plaintiff sought the relief of execution of the agreement
or in the alternative, to get back the advance amount.
5. Defendants filed written statement contending
that the 1st defendant was a heart patient and the plaint
schedule property was offered for sale to meet the delivery
expenses of the 4th defendant and to clear the loan arrears
in relation to the property in Alappuzha District Co-
operative Bank, Cherthala Branch. But, the original plaintiff
was not ready and willing to execute the sale deed on
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paying the balance consideration. Accordingly, the reliefs
sought in the plaint were opposed.
6. The trial court, on appreciation of rival pleadings,
raised necessary issues and tried the matter. PWs 1 to 3
examined and Exts.A1 to A3 marked on the side of the
plaintiff. DW1 examined and Exts.B1 to B6 marked on the
side of the defendants.
7. Finally, the trial court disallowed the prayer for
specific performance and allowed the alternative relief to
repay Rs.1 Lakh with future interest at the rate of 12% per
annum from 05.03.2007 by the sale of the plaint schedule
property and from the defendants and their assets.
8. While assailing the trial court verdict refusing the
discretionary relief of performance of contract, it is pointed
out by the learned counsel for the plaintiff that the plaintiff
has been ready and willing to perform his part of contract
marked as Ext.A1 and execution of Ext.A1 is admitted by
the defendants. According to the learned counsel for the
plaintiff, apart from the plaintiff, who got examined as PW1,
PWs 2 and 3 were also examined to prove the execution of
Ext.A1 agreement. Further, the readiness and willingness of
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the plaintiff is to be discerned from notice issued by him on
17.09.2007, which was accepted by the defendants.
According to the learned counsel for the plaintiff, even
though grant of specific performance is a discretionary
relief, in this case, the trial court went wrong in not
granting the same, where the evidence adduced by the
plaintiff categorically established the execution of Ext.A1
agreement and readiness and willingness of the plaintiff to
perform his part of contract. It is pointed out further that,
going by the evidence of DW1, who is the 5 th defendant, he
admitted that the property was mortgaged with Alappuzha
District Co-operative Bank and as on the date of his
examination also a sizable amount is due towards the bank.
Therefore, the evidence available is suggestive of the fact
that even though the plaintiff has been ready and willing to
execute the sale deed, the same could not be executed
because of the reluctance on the part of the defendants.
Therefore, the trial court went wrong in not granting the
relief of specific performance itself.
9. While opposing this contention, the learned
counsel for the defendants would submit that, in this
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matter, the property was offered to be sold to meet the
delivery expenses of the 4th defendant and to clear the loan
liability and also to purchase a suitable residence for the
defendants. Therefore, the intention behind execution of
Ext.A1 is its timely execution, so as to get money for the
requirements as stated in the written statement. Since the
plaintiff failed to perform his part of the contract as agreed,
urgent requirement of the defendants could not be
accomplished and the loan amount accumulated to higher
side. Having considered the factual aspects involved in this
particular case, the trial court is justified in granting the
alternative relief alone, while disallowing the relief of
specific performance in favour of the plaintiff.
10. Having considered the rival submissions, the
points arise for consideration are:
1. Whether the trial court went wrong in
granting the alternative relief and disallowing the
discretionary relief of specific performance of
Ext.A1 agreement?
2. Whether the decree and judgment of the
trial court would require interference?
3. Reliefs and costs.
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11. In this matter, Ext.A1 is the agreement entered
into between the plaintiff and defendants, whereby it was
agreed between them that the plaint schedule property
would be sold by the defendants to the plaintiff for a total
sale consideration of Rs.8,25,000/- and out of which Rs.1
Lakh was paid as advance by the plaintiff on the date of
execution of Ext.A1 on 05.03.2007. The execution of Ext.A1
is admitted by the defendants also. However, the
defendants' case is that, the property was agreed to be
sold to meet the urgent requirements including delivery
expenses of the 4th defendant and to clear the loan liability
and also to purchase a suitable residence for the
defendants. But, the plaintiff failed to perform his part of
the agreement in time, so as to meet the requirements of
the defendants, though he sent a notice as Ext.A1 on
17.09.2007, for which Ext.B4 reply was given.
12. In this matter, as pointed out by the learned
counsel for the plaintiff, the execution of Ext.A1 agreement
is admitted by the defendants. Ext.A2 would show that the
plaintiff was ready to execute the sale deed in terms of the
agreement. Apart from the plaintiff, who got examined as
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PW1, PWs 2 and 3 were also given evidence in support of
the case put up by the plaintiff.
13. The trial court found that the plaintiff
intentionally omitted to produce any evidence to show that
he was having sufficient funds to purchase the property as
per Ext.A1. According to the defendants, the plaintiff is only
a real estate broker and he could not find prospective
purchasers in order to execute the sale deed. Therefore, the
execution of the sale deed was not possible. It is true that,
no convincing evidence forthcoming to see sufficient funds
at the hands of the plaintiff to pay the balance
consideration. It is relevant to note that, as per the
contentions in the written statement and as submitted by
DW1, at the time of execution of Ext.A1 the property was
encumbered with Alappuzha District Co-operative Bank and
the liability not so far discharged, is the evidence given by
DW1. Therefore, even otherwise, the specific performance
of Ext.A1 is not possible. Here, the total consideration
agreed between the parties was Rs.8,25,000/- and out of
which a small amount of Rs.1 Lakh was paid by the plaintiff
as advance. It is true that, in a case of specific performance
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of contract or sale, the Court has the discretion to grant the
relief of specific relief itself prior to the amendment of
Section 20 of the Specific Relief Act w.e.f. 1.8.2018 and
grant of specific relief by the court is absolutely a
discretionary relief. It is the settled law that the said
discretion is to be exercised on sound and reasonable
grounds guided by judicial principles capable of correction
by the courts of appeal.
14. In the instant case, the trial court found that the
plaintiff failed to prove his capacity to pay the balance
consideration. Otherwise also, the sale deed could not be
executed because of the liability pending with the property.
In such a situation, the trial court was not inclined to
exercise its discretion to grant the relief of specific
performance and granted the alternative relief to refund
the advance amount paid with interest. In such a case, the
trial court exercised its discretion properly and the same is
only to be justified in the circumstances already discussed.
Therefore, there is no reason to interfere with the verdict of
the trial court. Holding so, the trial court verdict does not
require any interference.
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15. In the result, the appeal stands dismissed and the
verdict under challenge stands confirmed.
16. Considering the nature of this case, there shall be
no order of cost. Point Nos.1 to 3 answered thus.
All interlocutory applications pending in this regular first
appeal stand dismissed.
Sd/-
A. BADHARUDEEN
SK
JUDGE
