Kerala High Court
Cheratyadan Mamu Haji vs Pallipath Muhammed Rafi on 11 June, 2025
RFA 72/2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
RFA NO. 72 OF 2011
OS NO.46 OF 2006 OF SUB COURT, PAYYANNUR
APPELLANT/PLAINTIFF
CHERATYADAN MAMU HAJI,
S/O.ERMULLAN KUTTY, AGED 60 YEARS, DOCUMENT WRITER,
'SAFA', IRIKKUR P.O., IRIKKUR AMSOM, PATTUVAM
DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.
BY ADVS.
SRI.V.A.SATHEESH
SRI.V.T.MADHAVANUNNI
RESPONDENTS/DEFENDANTS
1 PALLIPATH MUHAMMED RAFI, S/O BAVOTTY
AGED 44 YEARS, BUSINEES, PALLIPATH HOUSE, IRIKKUR
P.O., IRIKKUR AMSOM PATTUVAM DESOM, TALIPARAMBA
TALUK, KANNUR DISTRICT.
2 PUTHIYA MADATHUMMAL FATHIBI,
D/O KUNHAHAMMED, AGED 50 YEARS, VALAPATTANAM PO,
VALAPATTANAM AMSOM DESOM, KANNUR TALUK, KANNUR
DISTRICT-670010.
SRI.B.KRISHNAN-R1
SRI.ABDUL RAOOF-R2
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON4.6.2025, THE COURT ON 11.06.2025 DELIVERED THE
FOLLOWING:
RFA 72/2011
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JUDGMENT
Dated : 11th June, 2025
The plaintiff in OS 46/2006 on the file of the Subordinate Judge, Payyannur is
the appellant. For the purpose of convenience, the parties are hereafter referred to as
per their rank before the trial Court.
2. The plaintiff filed the suit for specific performance of an agreement for
sale entered into with the 1st defendant on 5.1.2006. As per the said agreement, the 1st
defendant agreed to sell the plaint schedule property consisting of 61.5 cents of
property for a total price of Rs.1,72,200/- at the rate of Rs.2800/- per cent. On the date
of agreement itself, the plaintiff paid an advance amount of Rs.45000/- and thereafter
on 6.1.2006 Rs.5000/-, on 25.1.2006 Rs.20,000/- and on 11.2.2006 Rs.40,000/- were
also paid towards part of sale consideration. As per the agreement, the sale deed was
to be executed on or before 30.3.2006. Alleging that the sale deed could not be
executed due to the default of the 1st defendant, the plaintiff filed the suit.
3. In the written statement filed by the 1st defendant, it is admitted that an
agreement was executed with the plaintiff for selling the plaint schedule property and
that a total sum of Rs.1,10,000/- was received from the plaintiff. However, according
to the 1st defendant the sale deed could not be executed due to the default of the 1 st
defendant, as he was not ready and willing to pay the balance sale consideration.
Since the 1st defendant was not ready to pay the balance sale consideration and to get
the sale deed executed, he was forced to sell the property to the 2 nd defendant for a
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low price. Thereafter, the 2nd defendant was impleaded in the Suit and he filed a
written statement contending that he is a bona fide purchaser of the schedule property.
It was further contended that, after purchasing the property he has taken possession of
the same, planted 120 rubber saplings and obtained assistance from the rubber Board
in that respect.
4. The trial court framed five issues. The evidence in the case consists of
the oral testimonies of PW1, DWs1 and 2 and Exts.A1 to A5 and B1 to B17. After
evaluating the evidence on record, the trial court denied the prayer for specific
performance, but allowed the plaintiff to realize a sum of Rs.1,10,000/- from the
defendant. Dissatisfied with the above judgment and decree, the plaintiff preferred
this appeal.
5. Now the points that arise for consideration are the following:
(i) Whether the plaintiff was always ready and willing to perform his part of
the contract ?
(ii) Whether the impugned judgment and decree of the trial court calls for
any interference, in the light of the grounds raised in the appeal ?
6. Heard Sri.V.T.Madhavanunni, the learned counsel for the appellant and
Sri.B Krishnan, the learned counsel for the 1st respondent and Sri.Abdul Raoof, the
learned counsel for the 2nd respondent.
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7. Admittedly, on 5.1.2006, the 1st defendant entered into Ext.A1
agreement with the plaintiff agreeing to sell the plaint schedule property consisting of
61.5 cents for a total consideration of Rs.1,72,200/- at the rate of Rs.2,800/- per cent.
At the time of the execution of Ext.A1, a sum of Rs.45,000/- was given by the
plaintiff as advance amount and thereafter, till 11.2.2006, a further sum of Rs.65,000/-
was also given to the 1st defendant towards part of the sale consideration. Therefore,
as on 11.2.2006, out of the total sale consideration of Rs.1,72,200/-, the plaintiff had
paid a total sum of Rs.1,10,000/-.
8. As per Ext.A1 agreement, the sale deed was to be executed on or before
30.3.2006. According to the defendant, since there was no positive move from the
side of the plaintiff till 30.3.2006, on 31.3.2006, at his instance, a lawyer's notice
(Ext.A3) was issued to the plaintiff, informing him about his failure in performing his
part of the agreement and calling upon him to reach the Sub Registry on 18.4.2006
with the balance sale consideration, so as to get the sale deed executed. In the
meantime, on 7.4.2006, the plaintiff caused to send Ext.A4 reply to Ext.A3 notice
stating that before executing the sale deed, the 1 st defendant has to measure the
property and convince the extent of property to the plaintiff and to handover the
original title deed, pattayam, prior title deed, all land tax receipts from the very
beginning till date, possession certificate, encumbrance certificate, clearance
certificate with regard to absence of excess land etc., to the plaintiff and only after
verifying those documents, he could pay the balance sale consideration and get the
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sale deed executed. It was argued by the learned counsel for the defendant that so
much preconditions were put forward by the plaintiff only to protract the execution of
the sale deed as the plaintiff was not at all ready and willing to perform his part of the
agreement. Therefore, the learned counsel for the defendant would argue that, the trial
court was justified in declining the relief of specific performance to the plaintiff.
9. On the other hand, the learned counsel for the plaintiff would argue that
the default was on the side of the 1 st defendant and as such, the trial court was not
justified in declining the prayer for specific performance.
10. On a perusal of Ext.A1 it can be seen that the only condition stipulated
therein is that on or before 30.3.2006, the plaintiff has to pay the balance sale
consideration to the defendant and at that time, the 1 st defendant has to measure the
property and execute the sale deed in favour of the plaintiff or the person authorised
by the plaintiff. It is true that, till 11.2.2006 he had paid a total sum of Rs.1,10,000/-
to the defendant. Thereafter, till 30.3.2006, the last date prescribed in Ext.A1 for the
performance of the contract, no positive steps were taken by the plaintiff to get the
sale deed executed. In short, after 11.2.2006 there was no positive act from the side of
the plaintiff towards the performance of Ext.A1 agreement. Thereafter, when the 1st
defendant issued Ext.A3 lawyer's notice to the plaintiff, informing him about the non-
cooperation of the plaintiff in performing the contract and calling upon the plaintiff
to reach Irrikur Sub Registrar's office with the balance sale consideration on
18.4.2006. In Ext.A3, the 1st defendant further made it clear that if 18.4.2006 is
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inconvenient to the plaintiff, he could suggest another date for the execution of the
sale deed. Instead of accepting that offer unconditionally, put forward some
conditions to be complied by the 1st defendant before the execution of sale deed.
Interestingly, most of those conditions namely, handing over of the original title deed,
pattayam, prior title deed, up-to-date land tax receipts from the very beginning,
possession certificate, encumbrance certificate, clearance certificate with regard to
absence of excess land etc. do not find a place in Ext.A1.
11. According to the learned counsel for the defendant, those new
conditions are absolutely unnecessary for the execution of the sale deed. During the
cross-examination of the plaintiff as PW1, it was revealed that the plaintiff is none
other than the brother-in-law of the 1st defendant. Ext.B1 partition deed of 1998 is the
common title deed of the 1st defendant and the plaintiff's wife Ramlath. As per
Ext.B1, Ramlath and the 1st defendant obtained shares and a sketch is also attached
along with Ext.B1. The property covered by Ext.A1 is the 'C1' plot in the sketch in
Ext.B1 while plot 'A' therein was obtained by Ramlath. It is also revealed from
Ext.B1 that a duplicate of Ext.B1 was also available with Ramlath. It is also admitted
that the plaintiff is a licensed document writer and that he was in cordial terms with
his wife, during the relevant time. Since the plaintiff himself is a licensed document
writer he very well know the procedures to be followed for executing documents.
Since Ext.B1, the prior document of the defendant is already available within the
reach of the plaintiff, the additional conditions imposed by him in Ext.A4 reply notice
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can only be with the intention to delay the execution of the sale deed, as contended by
the defendant. The conduct of the plaintiff in not getting ready by 30.3.2006 or within
the period suggested by the defendant through Ext.A3 lawyer's notice shows lack of
bona fides and lack of readiness and willingness on the part of the plaintiff in
performing his part.
12. Though in the plaint, the plaintiff has pleaded that he has always been
ready and willing to perform his part of the contract, in his proof affidavit there is no
such averment. Absence of such an averment in the proof affidavit substantiates his
conduct in not being ready and willing to perform his part of the contract and to get
the sale deed executed. The law is well settled that unless and until the purchaser was
always ready and willing to perform his part of the contract he is not entitled to get
the discretionary remedy of specific performance. It was in the above context that the
1st defendant sold the plaint schedule property to the 2 nd defendant. In the light of the
above circumstances, the trial court was justified in declining the relief of specific
performance and at the same time, directing return of the amount received as advance.
I do not find any irregularity or illegality in the judgment and decree passed by the
trial court so as to call for any interference. The points answered accordingly.
In the result, the appeal is dismissed. Considering the facts, I order no costs.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/5.6.
