Abdul Salim v. Hyruneesa

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934 RSA.No. 927 of 2012 () ---------------------AS.356/2011 of II ADDL.DISTRICT COURT,PALAKKAD OS.218/2011 of PRINCIPAL MUNSIFF COURT, PALAKKAD APPELLANT(S)/APPELLANT/PLAINTIFF: ------------ ABDUL SALIM, S/O.RAHMTHULLA, AGED 47 YEARS, UPPUMPADAM, KINASSERY, PALAKKAD BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENT(S)/RESPONDENT/DEFENDANT: -------------- HYRUNEESA, D/O.ABDUL SALAM, AGED 80 YEARS, UPPUMPADAM, KINASSERY, PALAKKAD678 707. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.927 of 2012 -------------------------------------Dated this the 19[th] day of July, 2012.** ## **JUDGMENT** The foundation for the second appeal is the finding of courts below that appellant was not ready and willing to perform his part of the agreement for sale and the exercise of the discretionary jurisdiction under Sec.20 of the Specific Relief Act, 1963 (for short, “the Act”) in favour of the respondent. 2. As found by the courts below, appellant and respondent executed Ext.A1, agreement dated 01.06.2009 as per which appellant was to purchase the suit property belonging to the respondent for consideration at the rate of `4,000/- per cent. Respondent received `20,000/- by way of advance. The understanding was that the respondent has to measure the property and the sale deed has to be executed before 01.05.2010. Appellant alleged that respondent failed in discharging her obligations under the agreement. He claimed that he demanded the respondent to comply with her obligations several times but, it was not heeded to. Respondent told the appellant that the property is mortgaged with the Service Co-operative Bank. She requested time. Accordingly the time was extended for eleven months as per endorsement on the agreement. Still, respondent did not execute the sale deed and hence, the suit. 2 RSA No.927/2012 3. Respondent contended that there was no agreement to sell the property or receipt of advance sale consideration. At a time when she was hard-pressed for money in connection with her treatment, she borrowed `5,000/from the appellant and gave signed blank stamp papers and white papers. Making use of the same Ext.A1, agreement was fabricated. 4. The trial court based on evidence of the appellant as PW1 and the witness to Ext.A1, PW2, found in favour of due execution of Ext.A1 but, held from the evidence that appellant was not able to prove that he was ready and willing to perform his part of the contract. The discretion for grant of specific performance was exercised against the appellant and consequently he was given a decree for recovery of `20,000/- with interest from 01.06.2009 till realisation and charged on the suit property. Appellant challenged that judgment and decree before the II Additional District Court, Palakkad in A.S.No.356 of 2011 but only to be confirmed. Hence the Second Appeal. 5. The learned counsel contends that the courts below having found in favour of due execution of Ext.A1 rejecting the plea of the respondent that it was fabricated, were not justified in exercising the discretion in favour of the respondent. It is pleaded that respondent has raised a false plea which has been found against her. In such a situation, the discretion of the court is not to be exercised in favour of the respondent. Reliance is placed on the decision in **Silvey and others v. Arun Varghese and another ((2008) 11 SCC 45)** . It is further contended that the finding of the courts below that appellant failed to 3 RSA No.927/2012 perform his part of the contract is not correct. He was ready and willing to perform his part of the contract but the respondent did not satisfy herself the extent of property before 01.05.2010 as agreed to in Ext.A1. Learned counsel has argued that even if the property is mortgaged to the Service Co-operative Bank, it is within the power of the court to grant specific performance subject to the mortgage in favour of the bank. Reliance is placed on the decision in **Laxman Tatyaba Kankate and another v. Taramati Harishchandra Dhatrak ((2010) 7 SCC 717)** . 6. Respondent did not adduce any oral evidence and instead, produced Ext.B1, photocopy of the discharge card issued from the Government Medical College, Thrissur. The trial and first appellate courts did not attach much importance to that and based on the evidence of PWs 1 and 2 found in favour of due execution of Ext.A1. That finding has become final. 7. But the trial court entered a finding that appellant was not ready and willing to perform his part of the contract. True that the time for performance of the contract was extended by eleven months as per endorsement on Ext.A1. There is a stipulation in Ext.A1 that the preliminary steps are to be completed by 01.05.2010. Learned counsel would read from Ext.A1 that the time limit fixed as 01.05.2010 was for the respondent to measure the property and satisfy the appellant of the extent of property. I am not inclined to accept that argument. 4 RSA No.927/2012 For, reading the relevant clause in Ext.A1, it is clear that the measurement of the property was to be effected and the sale deed was to be executed before 01.05.2010. 8. True that the appellant when examined as PW1 stated that he was ready and willing to perform his part of the contract. But, not even a notice was issued to the respondent calling upon her to measure the property and execute the sale deed. What is available is only the version of the appellant as PW1. I must notice that Ext.A1, agreement is dated 01.06.2009, the time originally stated was 01.05.2010, time was extended for eleven months and the suit was filed only in the year, 2011, ie., almost two years after the execution of Ext.A1. I must notice that there was not even a demand in writing by the appellant calling upon the respondent to measure the property to satisfy him about the extent and execute the sale deed. Trial court also observed that since the understanding as per Ext.A1 was to purchase the property at `4,000/- per cent, even the actual amount payable to the respondent could be fixed only after a measurement of the property for which there was no steps taken by the appellant. Instead, appellant was blaming the respondent for not measuring the property before 01.05.2010. 9. A further fact that the trial and first appellate courts noticed is that even as per the version of appellant as PW1, he had to raise money for payment of the advance amount by pledging his ornaments, meaning thereby that otherwise he was not possessed of sufficient money even to pay the advance 5 RSA No.927/2012 sale consideration. Courts below also noticed that no other evidence is produced by the appellant to show that at the relevant time he was possessed of necessary funds to pay the balance sale consideration and take the sale deed. A further fact which the courts below noticed is that though even according to the appellant, he learnt from the respondent that the suit property is mortgaged with the Service Co-operative Bank, there was no demand (by acceptable evidence) made by the appellant requiring the respondent to clear that liability. It is in these circumstances that the trial and first appellate courts found that the appellant has not proved that he was ready and willing to perform his part of the contract. 10. The above said finding of fact is based on a proper consideration of the evidence. No doubt, the respondent did not gave evidence as DW1. But, that did not mean that whatever that the appellant has pleaded as PW1 was to be accepted as gospel truth. I must also notice that the rule of practice which has almost the force of law is that the appellate court does not reverse a finding of fact entered by the trial court which is rested on a proper appreciation of the oral evidence. 11. In the light of the above finding of the trial court as confirmed by the first appellate court, the question of exercise of discretionary jurisdiction did not arise. The trial court held in paragraph 12 of the judgment that appellant failed to prove that he was ready and willing to perform his part of the contract. Trial court also entered a finding that the appellant has no case that if specific 6 RSA No.927/2012 performance is not ordered, irreparable injury would be caused to him which cannot be compensated in terms of money. Again, the trial court took notice of the fact that the appellant did not even sent a notice to the respondent calling upon her to perform her part of the contract and execute the sale deed. In the above circumstances, the discretionary jurisdiction was also exercised in favour of the respondent. 12. So far as challenge to the exercise of discretionary jurisdiction is concerned, it is held time and again that even the first appellate court could interfere only if the trial court has not exercised the jurisdiction judicially. The appellate court cannot interfere unless the trial court has acted in a capricious manner or has ignored the relevant facts and adopted an unjudicial approach. 13. Learned counsel has invited my attention to the decision in **Silvey and others v. Arun Varghese and another** (supra). There, it is held that in deciding the question of discretionary jurisdiction under Sec.20 of the Act, the conduct of the parties would play a relevant part. There the contention raised by the defendants was found to be false (unlike in this case where the respondent was not able to prove her case). In the reported case, the defendants had falsely pleaded that plaintiff has abandoned the agreement. Paragraph 14 of that decision shows the extent of the contention which the defendants had raised but found to be false. It is in the above circumstances the discretionary jurisdiction was not exercised in favour of the defendant. 7 RSA No.927/2012 14. A false plea has to be distinguished from a plea which the respondent was not able to establish. A Division Bench of this Court in **Aliyas v. Aboobacker (2006 (4) KLT 282)** has held that a mere denial of execution of the agreement or an unsustainable defence is no ground to refuse equitable consideration in all circumstances. In this case, having regard to the facts and circumstances, the courts below have held that the appellant has failed to prove that he was ready and willing to perform his part of the contract and has exercised the discretionary jurisdiction against the grant of specific performance. Instead, the appellant was granted a decree for recovery of `20,000/- with interest from 01.06.2009 till realisation and charged on the suit property. 15. On hearing the learned counsel and going through the judgments under challenge, I do not find any substantial question of law involved in this appeal requiring its admission. Second Appeal is dismissed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**