Kerala High Court
Dr. Vinayakumar vs P. Raveendran on 23 May, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
RSA NO. 261 OF 2025
AGAINST THE JUDGMENT & DECREE DATED 13.01.2025
IN AS NO.68 OF 2021 OF DISTRICT COURT, ALAPPUZHA
ARISING OUT OF THE JUDGMENT & DECREE DATED 19.01.2021
IN OS NO.342 OF 2017 OF ADDITIONAL MUNSIFF COURT,
ALAPPUZHA
APPELLANT/2ND RESPONDENT:
DR. VINAYAKUMAR
AGED 54 YEARS
S/O DESHABANDU, RESIDING AT KRISHNAPURAM,
KARUMADY P.O., AMBALAPPUZHA, ALAPPUZHA
DISTRICT., PIN - 688562
BY ADVS.
K.S.HARIHARAPUTHRAN
PINKU MARIAM JOSE
K.M.FATHIMA
RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 & 3:
1 P. RAVEENDRAN
AGED 71 YEARS
S/O PADMANABHAN, RESIDING AT KARTHIYA
VEETTIL, THAKAZHY P.O., ALAPPUZHA DISTRICT.,
PIN - 688562
2 KRISHNAKUMARI
AGED 83 YEARS
D/O KARTHIYANI AMMA, RESIDING AT TC 35/2033,
MAITHRI NAGAR, THIRUMALA P.O.,
RSA No.261 of 2025
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2
THIRUVANANTHAPURAM DISTRICT., PIN - 695006
3 THE SUB REGISTRAR
SUB REGISTRAR'S OFFICE, AMBALAPPUZHA.
ALAPPUZHA DISTRICT , PIN -, PIN - 688561
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 23.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA No.261 of 2025
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3
JUDGMENT
(Dated this the 23rd day of May, 2025)
The 2nd defendant in a suit for specific
performance and injunction is the appellant.
2. The 1st respondent, Plaintiff filed OS
No.342/2017 before the Additional Munsiff Court,
Alappuzha seeking for a decree of specific performance
against the 2nd respondent herein. An agreement dated
25.07.2011 was entered into between the plaintiff and the
1st defendant in the suit, wherein the plaintiff agreed to
purchase, and the 1st defendant agreed to sell, an extent of
10 Ares of land in Re-survey No.321/8 of Thirumala
Village in Thiruvananthapuram Taluk. As per the
agreement, an amount of Rs.50,000/- was paid as advance,
and the value of the land was fixed at Rs.12,000/- per cent.
The period for performance was fixed as 12 months from
the date of the agreement. It is alleged that, as on
10.12.2012, the plaintiff had paid a sum of Rs.2,95,000/-
and that the period for performance of the contract was
extended for a period of three years on 10.12.2012, as per
the endorsement made in the agreement itself. Since the
plaintiff was ready and willing to perform the contract,
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and the default occurred on the part of the 1 st defendant,
the suit was instituted. The defendant entered appearance
and contested the case, by pointing out that the plaintiff
failed to perform the contract and the period fixed for the
performance of the contract expired on
09.12.2015.Consequently, the 1 st defendant proceeded to
sell the property to the 2nd defendant on 21.12.2015. It
was contended that the plaintiff was not ready and willing
to perform the contract and had lost interest in its
execution. Considering the relationship between the
plaintiff and the 1st defendant, the title deeds of the
property was entrusted to the plaintiff, but were never
returned. The 2nd defendant contented that the suit is not
maintainable as the same is barred by limitation.
According to the 2nd defendant, there is no agreement of
sale between the plaintiff and the 1 st defendant, and the
sale deed in the favour of the 2 nd defendant was executed
in a bonafide manner for a total sale consideration of
Rs.6,50,000/-. Since the 2 nd defendant is a bonafide
purchaser, the plaintiff is not entitled to any relief sought
for in the suit and the suit for specific performance is
liable to be dismissed. On the basis of oral and
documentary evidence produced on behalf of the parties,
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the Trial Court framed the following issues:-
"6. Based on the rival contentions of the parties,
the following issues were made.
1. Is the suit bad for misjoinder of parties (3 rd
defendant)?
2. Is there exist an agreement dated 25.07.2011
executed by the first defendant in favour of
plaintiff ?
3. Is the plaintiff entitled for specific
performance of agreement dated 25.07.2011 by
the defendants?
4. Is the plaintiff entitled for perpetual
injunction as prayed for?
5. Reliefs and costs?
6. Additional Issue:-
1. Is the second defendant a bonafide
purchaser of plaint schedule
property?"
3. On considering the oral and documentary
evidence, the Trial Court found that the plaintiff was not
ready and willing to perform the contract and he had lost
interest in its performance. It was further held that the
plaintiff was not able to show that he had sufficient
amounts to perform the contract. Accordingly, the plea for
specific performance was declined. However, the Trial
Court granted a decree for return of advance money by
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creating a charge on the plaint schedule property under
Section 55(6)(b) of the Transfer of Property Act,1882.
Aggrieved by the judgment and decree of the Trial Court,
the 2nd defendant preferred an appeal before the District
Court, Alappuzha as AS No.68/2021 which was dismissed
by judgment and decree dated 13.01.2025 and hence the
present appeal.
4. Heard Sri. K.S Hariharaputhran, the learned
Counsel appearing for the appellant.
5. The learned Counsel for the appellant
submitted that the courts below have found that there is a
clear admission on behalf of the plaintiff that the 2 nd
defendant is a bonafide purchaser of the plaint schedule
property. Since the plaintiff was not ready and willing to
perform the contract, it must be construed that he has
refused to accept delivery of the property. It is the specific
case of the learned Counsel that on fact, it has to be
assumed that there is an improper refusal to accept
delivery and thus the plaintiff is not entitled to get the
charge under Section 55(6)(b) of the Transfer of Property
Act. 1882.
6. The learned Counsel would assert before this
Court that what constitutes "improper refusal to accept
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delivery" is not spelt out in any precedents laid down by
this Court or by the Apex Court.
7. I have considered the submissions raised
across the Bar.
8. The sole question to be considered by this
Court is as to whether the 2nd defendant had established
that there was an improper refusal on the part of the
plaintiff to accept delivery of the property. The only case
pleaded and argued before this Court by the learned
Counsel for the appellant is that, since the Trial Court has
found that the plaintiff was not ready and willing to
perform the contract, it must be construed that there is an
improper refusal on his part to accept the delivery. On a
careful consideration of the aforesaid argument, I am
afraid that none of the contentions raised by the learned
Counsel for the appellant deserves any merit. Though it is
asserted before me that there is no precedent on the point,
when it was pointed out to the learned Counsel for the
appellant that the issue raised in this appeal is covered by
the decision of this Court in Ahammedkutty Bran v.
Sukumaran [2024(2) KLT 199] and the decision of the
Supreme Court in Videocon Properties Ltd v. Dr.
Bhalchandra Laboratories & others, [2004 (3) SCC
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711], the learned Counsel for the appellant made a valiant
effort to distinguish the aforesaid decision by stating that
the facts of the case decided in Ahammedkutty Bran
(Supra) is quite different from the facts of the present
case.
9. I am afraid that the aforesaid argument of the
learned Counsel for the appellant is clearly untenable. As I
have stated earlier, there was a specific assertion before
me that the issues raised in this appeal is not covered by
any precedents. It is only when this Court pointed out the
existence of a precedent, the learned Counsel for the
appellant tried to wriggle out of the precarious situation
by making a feeble attempt to point out that the facts of
the case in Ahammedkutty Bran (Supra) is entirely
different. The argument of the learned Counsel for the
appellant that the facts in Ahammedkutty Bran (Supra)
at the present case is entirely different though at first
blush appears to be appealing but on a close scrutiny it is
not so. Even assuming for a moment that the facts in the
aforesaid case being entirely different, this Court is not
concerned with the facts which was subject matter before
this Court, but is only concerned with the point of law
decided.
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10. With the above principles in backdrop, when
the findings rendered by the Trial Court is closely
scrutinized, it reveals that the evidence in the present case
no doubt shows that the plaintiff was not ready and willing
to perform the contract. But in the considered view of this
Court, in the light of the decision of this Court in
Ahammedkutty Bran (Supra) , even if the buyer is at
fault in not performing the contract and the contract of
specific performance is declined on that ground, that by
itself will not disentitle the plaintiff to claim charge on the
property under Section 55(6)(b) of the Transfer of
Property Act, 1882. The words "'accept delivery' occurring
in the Section is to be understood as accepting the
performance of the contract and not merely taking
delivery of the property in the literal sense". It is pertinent
to note that the Law Commission of India in its 70 th report
stated "the next comment which we like to make on
Section 55(6)(b) is that wherein speaks of the purchaser
improperly declining to accept delivery", it obviously has
in mind some such elaborate notion as "accept the
completion of the contract by the execution of conveyance
or the delivery of the property as the case may be".
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11. This is exactly the point of law decided in
Ahammedkutty Bran (Supra). It is worthwhile to
extract the findings of this Court in Para.12 of the decision
in Ahammedkutty Bran (Supra). Para.12 reads as
under.
Both limbs of the Section refer to,
"declining to accept delivery"; the first part
states, 'unless he has improperly declined',
and the second part says, 'when he properly
declines'. The words "unless he has
improperly declined", would suggest that it
means "if he has properly declined".
Obviously, in the light of the second part of
the Section, that cannot be what is intended.
When the words "unless he has improperly
declined" occurring in the first part of the
section and "when he properly declined"
occurring in the second part of the section
are considered side by side, they suggest
three situations, (i) properly declined, (ii)
improperly declined, and (iii) where there is
neither a proper nor improper declining.
Situations where the declining is proper has
been taken care of in the second part of the
section. Improper declining, as is evident on
a plain reading of the section, negates
charge. There could be cases where an
agreement for sale does not go through for
no fault of either the vendor or the vendee.
So also, there could be instances where both
the parties are at blame, both having
contributed for the non performance. May
be the buyer was not too eager and the
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seller was not too particular to carry the
agreement through. There could also be
instances where the seller is unable to
perform for various reasons. In such cases it
could not be said that the buyer has
improperly declined to accept delivery.
There being no improper declining by the
buyer to accept delivery, he is entitled for
charge over the property for the purchase
price paid. Sanjiva Row in his commentaries
on Transfer of Property Act, 8th edition,
page 738 states,
"Where the contract fails to be performed
completely, but that failure of performance
is not attributable entirely to the vendor
and the contract is rejected by the
purchaser, in such a case, where both the
parties are to blame, more or less, the case
does not fall within the expression "unless
the buyer improperly declines to accept
delivery" provided the facts and
circumstances are such that it can be said
that the buyer has not improperly refused
delivery. Where both the parties are to
blame, more or less, it cannot always be
said that the buyer has rejected the
contract, or has improperly refused to take
delivery: for the purchaser would have been
willing to perform the contract, if the
vendor had performed those things, which,
in good faith, he was bound to do.
The words 'improperly declined' should
have a proper meaning attributed to them.
The default of the vendor may be due to
some accident or misfortune, even though
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there may be no fault on the part of the
vendor. The question was posed in
Whitbread & Co., Ltd., v. Watt, by Vaughan
williams, L.J., ((1902) 1 Ch 834) thus:
"Suppose, a person contract to sell a
property and the purchaser pays a deposit
and owing to some fact not being
misconduct on either side, the contract
goes off, has the purchaser a lien on the
estate for his deposit?
" It was observed that "it is no default, it is
rather misfortune".
In Puthiya Purayil Ramakrishnan v.
Pullani Prabhakaran 2016 (1) KLJ 336
this Court held: -
".........A close reading of S.55(6)(b) of the
Transfer of Property Act would indicate
that the creation of charge as per the said
provision dependent on the issue as to
whether the buyer has improperly declined
to accept delivery of the property. It is thus
evident that if the buyer does not
improperly declines to accept delivery of
the property as per the terms of the
agreement, a charge will be created in
favour of the buyer in respect of the
property by operation of the provision
contained in 5.55(6)(b) in Videocon
Properties Ltd v. Dr. Balachandra
Laboratories & Others, 2004(3) SCC
711, the Apex Court underlined the
provisions of Section 55(6)(b) as a tried
principle of justice, equity and true
conscience.
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12. On a close exposition of the principles laid
down by this Court in Ahammedkutty Bran (Supra), this
Court is not persuaded to hold that merely because there
is a default on the part of the buyer to perform contract
because he was not eager to take the contract forward,
that by itself will not dis entitle him to claim a charge over
the plain scheduled property. Accordingly, it is held that
the plaintiff was certainly entitled for charge over the
property.
Resultantly, this Court finds that the judgment of
the Trial Court as well as the 1 st appellate Court do not
suffer from any infirmity or perversity. Both the Courts
have analyzed the facts and law properly and have
correctly held that the plaintiff is entitled to charge over
the plain scheduled property in terms of Section 55(6)(b)
of the Transfer of Property Act, 1882. Thus, no substantial
question of law arises for consideration in these appeals,
and accordingly the appeal fails and is dismissed.
Sd/-
EASWARAN.S
JUDGE
AKH
