Kerala High Court
Cleetus vs Stephen on 24 February, 2025
RFA NO. 377 OF 2010 1
2025:KER:15739
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA,
1946
RFA NO. 377 OF 2010
AGAINST THE JUDGMENT DATED 30.11.2009 IN OS NO.7 OF 2008
OF PRINCIPAL SUB JUDGE,IRINJALAKUDA
APPELLANTS/DEFENDANTS:
1 CLEETUS
S/O.THERIYAPARAMBIL SOURI, VENNOOR DESOM,
ALATHUR VILLAGE, MUKUNDAPURAM TALUK.
2 *ADDL APPELLANT 2
ANNIE CLEETUS, AGED 72 YEARS,
W/O. LATE CLEETUS, THERIYAPARAMBIL VEEDU,
VENNUR, ALATHUR THRISSUR- 680741.
3 *ADDL APPELLANT 3
ALPHONSA T.C, AGED 41 YEARS,
W/O. JOY T.P, THUPPATHY KALAMBATTUPURAM,
KOTTAMAM KALADY, NEELEESWARAM ERNAKULAM -
683574.
4 *ADDL APPELLANT 4
FATHIMA MOTTY, AGED 43 YEARS,
W/O. MOTTY JOSE, KANJIRATHINGAL HOUSE BLOCK 3,
G-2, V.B. GARDEN PULIKKILLAM WEST ROAD V.M.
CASTLE, CHEMBUMUKKU KAKKANAD, ERNAKULAM -
682030.
*(ADDITIONAL APPELLANTS 2 TO 4 IMPEADED AS PER
ORDER DATED 16.01.2025 IN I.A NO.1 OF 2025 IN
RFA NO.377 OF 2010).
RFA NO. 377 OF 2010 2
2025:KER:15739
BY ADVS.
ASP.KURUP
SRI.SADCHITH.P.KURUP
C.P.ANIL RAJ
SIVA SURESH
B.SREEDEVI
ATHIRA VIJAYAN
SWATHI KRISHNA P.H.
RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:
1 STEPHEN,
S/O.PUTHENVEETTIL KOCHUVAREED, AMBAZHAKKADU
DESOM, KALLUR VADAKKUMMURI VILLAGE,
MUKUNDAPURAM TALUK, PIN-691 585.
2 BAIJU,
S/O.THAZHATHUPURATH RAPPAI, ANNALLUR VILLAGE,
PAZHUKARA DESOM, MUKUNDAPURAM TALUK,
PIN-691 585.
3 THE SECRETARY,
VENNUR SERVICE CO-OPERATIVE BANK, ALATHUR
VILLAGE, VENNUR DESOM, PIN-680 741.
BY ADV SRI.K.G.BALASUBRAMANIAN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR
ADMISSION ON 24.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RFA NO. 377 OF 2010 3
2025:KER:15739
JUDGMENT
Dated this the 24th day of February, 2025
The 1st defendant in O.S No.7 of 2008 on the files of
the Principal Sub Court, Irinjalakuda has preferred this
appeal under Section 96 read with XLI Rule 1 of the Code
of Civil Procedure, 1908, challenging the decree and
judgment thereon dated 30.11.2009.
2. Heard the learned counsel for the 1 st
defendant/appellant and the learned counsel for the
respondents 1 and 2. No representation for the 3 rd
respondent.
3. The parties in this appeal will be referred as
plaintiffs and defendants hereafter.
4. The plaintiffs approached the trial Court seeking
the relief of specific performance of a contract of sale
entered into between the plaintiffs and the 1 st defendant
on 28.11.2006, thereby it was agreed by the 1st
2025:KER:15739
defendant to sell the plaint scheduled property @
Rs.36,000/- per cent. Accordingly Rs.1,00,000/- was
received as advance sale consideration on the date of
execution of the agreement and the time for execution of
sale deed was fixed on or before 30.08.2007. Thereafter,
Rs.2,50,000/- more was paid as advance and the period
to execute the sale deed was extended upto 30.12.2007.
The execution of the agreement and receipt of
Rs.1,00,000/- on the date of execution of the
agreement, Rs.5,000/- thereafter and Rs.2,50,000/-
subsequently on 19.04.2007 are admitted by the 1 st
defendant. According to the 1st defendant, he has been
ready and willing to execute the sale deed always but the
plaintiffs failed to execute the sale deed because they did
not have sufficient amount at their hands to pay the
balance sale consideration.
5. The trial Court ventured the matter. PW1 and
PW2 examined and Exts.A1 to A8 were marked on the
2025:KER:15739
side of the plaintiffs. DW1 examined on the side of the
defendants. On analysis of the evidence, trial court
granted decree of specific performance, with direction to
plaintiffs deposit the balance sale consideration within
two months.
6. Aggrieved by the said verdict of the trial Court
this appeal has been filed and according to the learned
counsel for the 1st defendant the available evidence
would suggest that the plaintiffs are not ready and
willing to execute the sale deed and thereby the
execution of the sale deed was failed and therefore the
plaintiffs are not entitled to any reliefs. As such the
verdict would require interference.
7. Per contra it is pointed out by the learned
counsel for the plaintiffs that the plaintiffs have been
always ready and willing to execute the agreement and
in this connection plaintiffs issued Ext.A2 lawyer notice,
but the same was not accepted by the 1 st defendant and
2025:KER:15739
in turn the same was returned unserved. That apart, the
learned counsel for the plaintiffs relied on Exts.A5 and
A6 bank statements during the period 30.08.2007 and
30.12.2007 substantiate that plaintiffs are having
sufficient money with them, in order to execute the sale
deed. Further it is pointed out that the 1st defendant
failed to clear the liability with the 2 nd defendant and
thereby the 1st defendant's reluctance resulted in non
execution of the sale deed in time.
8. Having addressed the rival submissions made
by the learned counsel for the 1st defendant and the
plaintiffs, the points to be determined are:
(1) Whether the trial court went wrong in granting the
discretionary relief in this case where the
execution of Ext.A1 agreement is admitted.
(2) Whether the decree and judgment impugned
would require interference?
(3) Reliefs and cost.
2025:KER:15739
9. In the instance case Ext.A1 is the agreement
entered into between the plaintiffs and 1st defendant on
28.11.2006. As per Ext.A1, the 1st defendant agreed to
sell the entire plaint property @ Rs.36,000/- per cent
and the extent of property is 35 cents. The total
consideration would come to Rs.12,60,000/-. The
execution of Ext.A1 is admitted by the 1 st defendant.
Similarly, the receipt of Rs.2,55,000/- (Rs.5,000
+Rs.2,50,000/-) on 19.04.2007 after endorsing the same
on the reverse side of the first page of Ext.A1 also is
admitted by the 1st defendant. Extension of the period
to execute the sale deed up to 30.12.2007 also is
admitted. As per Ext.A2, notice demanding performance
of the contract was issued on 12.12.2007 as evident
from Ext.A3 postal receipt. It is true that the notice as
such returned as unserved with an endorsement that the
"addressee not known".
10. According to the learned counsel for the 1 st
2025:KER:15739
defendant, 1st defendant always had been ready and
willing to execute the sale deed but the execution could
not be materialized because of the reluctance on the part
of the plaintiffs and he has placed Ext.B1, bearing his
signature as a witness to the same to substantiate that
he was present before the Sub Registrar Office on
30.12.2007, the last date for executing the sale deed. He
also pointed out that plaintiff did not have sufficient
money to execute the deed.
11. In this matter as far as execution of Ext.A1 and
the subsequent endorsement by accepting a total
consideration of Rs.3,55,000/- and extension of the
period of agreement till 30.12.2007 are admitted facts.
On perusal of the averments in Ext.A1, the 1 st defendant
agreed to execute the sale deed after clearing the
encumbrance over the property subsisting with the 2 nd
defendant. While giving evidence, DW1, the 1 st
defendant himself admitted that the liability with the 2 nd
2025:KER:15739
defendant has been subsisting. If so the readiness and
willingness on the part of the 1 st defendant without
clearing the liability could not be held as bonafide.
Production of Ext.B1 even without issuing a notice
seeking performance of Ext.A1 agreement would not
suffice to see that the 1st defendant had been ready and
willing to execute the sale deed as contended, in the said
circumstances. Whereas Exts.A5 and A6 statements of
accounts pertaining to the business concerns of the
plaintiffs in between 01.08.2007 to 31.08.2007 and
20.12.2007 to 30.12.2007 would show that
Rs.25,20,500.50/- is outstanding in their said accounts
and they have issued Ext.A4 notice demanding
performance within time. Therefore, readiness and
willingness as averred in the plaint are discernible from
the evidence let in by the plaintiffs. Whereas the 1 st
defendant would say that he has been ready and willing
to execute the sale deed without clearing the liability as
2025:KER:15739
rightly noted by the trial court. It is true that grant of
specific relief is a discretionary relief till 01.08.2018 and
the discretion shall have to be exercised with sound and
equitable principles. In the instant case, admittedly
Ext.A1 was executed and thereafter renewed. Thereafter
plaintiff issued Ext.A4 notice demanding execution of the
sale deed and Exts.A5 and A6 would show that the
plaintiff have sufficient money with them to execute the
sale deed. In such a case, readiness and willingness on
the part of the plaintiff to execute the sale deed as found
by the trial Court is only to be justified. It is true that as
permitted by this Court the plaintiffs received back the
amount deposited for executing sale deed in terms of the
trial Court decree because of long pendency of this
appeal. But now also the plaintiffs are ready to execute
the deed. In view of the above, the discretionary relief
of specific performance granted by the trial Court in the
facts of the case and is perfectly justifiable. Accordingly
2025:KER:15739
the decree and judgment impugned would not warrant
any interference.
12. In the result, this appeal stands dismissed.
Decree and judgment of the trial Court are confirmed.
13. Since the sale consideration deposited was
taken back by the plaintiffs as permitted by this Court,
the plaintiffs shall deposit the balance sale consideration
within a period of 30 days from today to proceed with
the execution of the sale as per law.
14. All interlocutory orders stands vacated and all
interlocutory applications pending in this regular first
appeal stand dismissed.
Registry is directed to forward a copy of this
judgment to the jurisdictional court forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
Anu
