Aminabi v. Andikutty

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934 ## **A.S.No.9 of 1998 (C)** ------------------------------------ [AGAINST THE JUDGMENT AND DECREE DATED 19.8.1996 IN O.S.NO.664 OF 1994 OF THE COURT OF THE 1ST ADDL. SUB JUDGE OF KOZHIKODE]. -------------- ## **APPELLANT** /PLAINTIFF:- ------------------------------------- AMINABI, VALIYAPARAMBATH, WIFE OF K.P.ALI, K.P.M.HOUSE, NALLALAM AMSOM DESOM, KOZHIKODE TALUK. ## BY ADV. SRI.P.R.VENKETESH RESPONDENT:- ----------------------- ANDIKUTTY @ SIVASANKARAN, S/O.GOPALAN, VATHUKKARACHERAM VEETTIL, RESIDING AT KALARIKANDI PARAMBIL, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.M.C.SEN (SENIOR ADVOCATE) SMT.SHAHNA KARTHIKEYAN SRI.A.PARVATHI MENON. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON 02-07-2012 DELIVERED THE FOLLOWING:- Thottathil B.Radhakrishnan & K.Vinod Chandran, JJ. ----------------------------------------A.S.No.9 of 1998 -----------------------------------------Dated this, the 2[nd] day of July, 2012 ## JUDGMENT ## K.Vinod Chandran,J: The appellant was the plaintiff before the Court below and the respondent the sole defendant. The suit was one filed for specific performance of Exhibit A1, an alleged agreement for sale. According to the appellant, the defendant obtained the plaint schedule property as per a bequest by the aunt of the defendant, Kuttimalu. The defendant having sold a portion of the property, agreed to sell 10.250 cents of property, more specifically described in the plaint schedule, along with the building and improvements thereon, for an amount of Rs.1,62,500/-. The document, Exhibit A1, evidencing the agreement was executed by the plaintiff and the defendant with two witnesses and the plaintiff had also paid an amount of Rs.10,000/- as advance on the date of the agreement, i.e., 18.12.1993. The agreement specified the time for execution of sale deed as three months; but it was alleged that the same could not go through due to the failure on the part of the defendant. The defendant having consistently refused to handover A.S.No.9 of 1998 - 2 - the tax receipt, survey certificate, encumbrance certificate, etc. and having also failed to measure out the property, the plaintiff had issued notice dated 18.05.1994 which, it was contended, was never responded to. It was in these circumstances that the plaintiff approached the Court below for specific performance, and in the alternative, seeking refund of the amounts paid as advance. 2. The defendant denied the execution of the document and also denied his title to the plaint schedule property which, it was contended, was the subject matter of a suit for partition. The defendant also raised a further plea that he was suffering from mental disorder from July, 1993 to December, 1993. The plea of mental disorder was developed to contend that the defendant, during the said period, was in the habit of leaving his house occasionally and had to be brought back and due to his mental state, was unaware of the consequences of his actions. 3. On the above pleadings, the Court framed issues as to whether the plaintiff is entitled to get a specific performance of the alleged contract and if not, in the alternative, whether she is entitled to realisation of amounts allegedly paid as advance. The Court below having found that the agreement was prepared by a document writer and read over to the defendant and that the A.S.No.9 of 1998 - 3 - defendant had affixed his signature in front of witnesses, held that the document is genuine and binds both the plaintiff and the defendant. With regard to the plea of mental illness, the Court deliberated upon the evidence of D.W.2, an Ayurvedic doctor, and referring to the various medicines prescribed by him and the deposition regarding the application of such medicines, held that D.W.2 is incompetent to treat a mental disorder and rejected his evidence as also the evidence of the defendant's wife as being unbelievable and untrustworthy. Based on the above findings, the Court ventured into the question of the discretion to be exercised for grant of specific performance and declined to do so merely on the premise that the plaintiff had sought for an alternative prayer for refund of the advance amounts. 4. The plaintiff, dissatisfied with the judgment and decree of refund of advance amount, is before us assailing the judgment of the Court below on several grounds and seeking reversal of the same to the extent it declined specific performance. The Court below, according to us, has laboured unnecessarily in deciding the issue as to whether the defendant was suffering from any mental illness. The decision of the Court below in so far as it refused exercise of discretion for grant of specific performance for A.S.No.9 of 1998 - 4 - the sole reason of there being alternative prayer also, according to us, is on a wrong premise and on a wrong interpretation of the judgment of the Supreme Court referred to. In our opinion, in the teeth of the denial of execution of Exhibit A1, the Court below ought to have meticulously appreciated the evidence on record regarding the execution of the agreement; which examination is totally absent. 5. In the circumstances, we are constrained to re-appreciate the evidence on record. We may also note that there is no appeal or a cross objection by the defendant assailing the judgment and decree for realisation of advance amounts. The essential ingredients for specific performance, being a valid agreement, breach of such agreement and the readiness and willingness of the party claiming specific performance, have to be kept in mind in considering the evidence on record. 6. Exhibit A2 agreement is alleged to have been executed by the plaintiff and the defendant in front of two witnesses. The husband of the plaintiff was examined as P.W.1. P.W.1 deposed that Exhibit A1 was executed by the defendant in front of himself and the witnesses and the transaction itself is said to have been arranged at the behest of one of the witnesses to A.S.No.9 of 1998 - 5 - Exhibit A1, who was examined as P.W.2 and another who was examined as P.W.3. P.W.3 addressed himself as the “broker” to the above transaction. P.W.1 made contrary statements as to the transaction being between himself and the defendant and the same being between his wife and the defendant. The document was alleged to have been written by a scribe by name Ahamed Koya Haji, whose name however, has not been mentioned in Exhibit A1. The specific statement of P.W.1 that he had bought a stamp paper of Rs.15/- for the purpose of execution of the agreement is belied by the fact that Exhibit A1 has been executed on a stamp paper having value of Rs.20/-. There is also obvious contradiction regarding the date and mode of payment of the advance. While P.W.1 says that the advance amounts were paid by him for and on behalf of his wife on the date of execution of the agreement in the presence of P.Ws 2 and 3; P.W.2 states that advance amount was paid on the next day. P.W.2 also would depose that there was no agreement between the plaintiff and the defendant and that the agreement was between P.W.1 and the defendant. These discrepancies were not noticed by the trial Court while appreciating the evidence on record. One other glaring fact was that, on the admission of P.Ws 1 and 2, the witnesses to A.S.No.9 of 1998 - 6 - Exhibit A1 were both closely related to P.W.1. While the first witness, who was examined as P.W.2, was P.W.1's brother-in-law, the second witness was the son of P.W.1 and plaintiff. The Court below has failed to notice this fact especially in the context of the denial of execution of Exhibit A1 agreement by the defendant and the categoric statements by both P.W.2 and P.W.3 that there were available about 10 persons at the time and place of execution of Exhibit A1. Finally, on going through Exhibit A1 agreement, we find that the same does not contain the signature of the defendant in the third page. This aspect was specifically confronted to P.W.1 on cross-examination, but ignored by the trial Court. The execution hence purportedly made by the plaintiff is also highly suspect in the nature of the signature available in the other pages as compared with that on the plaint. 7. We again remind ourselves that there is no appeal or cross-objection by the defendant from the judgment and decree upholding the validity of Exhibit A1 agreement, but confining the relief only to the refund of advance amounts. However, in considering the prayer of the appellant for reversing the lower Court judgment to the extent it declines discretion to grant specific performance, we necessarily have to look at the total A.S.No.9 of 1998 - 7 - ## circumstances. We garner inspiration from _**Aliyas v. Aboobacker**_ ## [2006 (4) KLT 282]: “A defendant may fail to prove his defence. He may not able to bring before court the relevant evidence or proper witnesses. Sometimes, the defence may be false. In some cases, though the defence is true, the defendant may fail to prove it. In yet another case, the court may err in its finding that the defence is false or unsustainable. In our view, it cannot be said as a universal rule, that the defendant would be precluded from contending that discretion should be exercised not to decree specific performance or in other words discretion should not be exercised to decree specific performance, only because his defence is either unsustainable or not proved or false or because the court found it to be so. We are also of the view that in such a case, the plaintiff could not say that the discretion should be exercised in his favour to decree specific performance only because of such a defence or such a finding of court. The court has to consider all the facts and circumstances of the case in order to exercise the discretion to decree or not to decree specific performance and in that process could take into account equitable considerations as well”. The discretion in decreeing specific performance as is trite, is not a matter of course and nothing mandates or binds the Court to grant such relief; even if it is lawful to do so. The grant of relief of specific performance or the refusal to exercise such discretion as per Section 20 of the Specific Relief Act is capable of correction by A.S.No.9 of 1998 - 8 - a Court of appeal. Any Court, whether the trial Court or the Court of appeal, in considering the exercise of such discretion as per the statutory provision is to be guided by sound and reasonable principles not being in any event arbitrary. The discussion of the evidence on record, we are afraid, stays our hand from exercising such discretion in favour of the plaintiff in the above case. In such circumstances, the above appeal is without merit and is hence dismissed, however, with no order as to costs. Sd/Thottathil B.Radhakrishnan Judge Sd/K.Vinod Chandran Judge. vku/- - true copy -