Antony Correya and Others v. P. N. Mohammed Abdul Rahiman and Others (RFA No. 499 of 2006 (B) & Cross Objection No. 92/2006)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940 RFA.No. 499 of 2006 (B) AGAINST THE JUDGMENT IN OS 366/2005 of II ADDL.SUB COURT, ERNAKULAM, DATED 26-08-2006 APPELLANTS/DEFENDANTS: - -------------------------------------------- 1 ANTONY CORREYA, S/O.AMBATTU PETER CORREYA, RESIDING AT KITTY COTTAGE, CORREYA ROAD, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, PACHALAM, ERNAKULAM DISTRICT-682 012. - 2 FRANCIS DONAL CORREYA , S/O.AMABTTU PETER CORREYA, RESIDING AT KITTY COTTAGE, CORREYA ROAD, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, PACHALAM, ERNAKULAM DISTRICT- 682 012. 3 JOHN CORREYA, S/O.AMBATTU PETER CORREYA, RESIDING AT KITTY COTTAGE, CORREYA ROAD,, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, PACHALAM, ERNAKULAM DISTRICT- 682 012. [DIED] BY ADVS.SRI.R.D.SHENOY (SR.) SRI.P.JACOB VARGHESE (SR.) SRI.P.SHRIHARI SRI.S.VINOD BHAT SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO ## RESPONDENT/PLAINTIFF:- ----------------------------------------- MR.P.N.MOHAMMED ABDUL RAHIMAN, S/O.KUNHU, RESIDING AT R.K.COTTAGE, PERIYAR COLONY, THOTTAKKATTUKARA, ALUVA WEST VILLAGE, ERNAKULAM DIST-683 101. ADDL. R2. SOFY CORREYA, AGED 62, WIFE OF JOHN CORREYA, RESIDING AT 43/1687, AMBATT HOUSE, S.R.M. ROAD EXTN., PACHALAM, KOCHI - 682 012. ADDL.R3. MELLIZA CORREYA, AGED 35 YEARS, D/O JOHN CORRYEA, RESIDING AT 43/1687, AMBATT HOUSE, S.R.M. ROAD EXTN., PACHALAM, KOCHI - 682 012. RFA.No. 499 of 2006 (B) 2 ADDL. R4. MERCELEENA SONIA, AGED 34 YEARS, D/O JOHN CORRYEA, RESIDING AT 43/1687, AMBATT HOUSE, S.R.M. ROAD EXTN., PACHALAM, KOCHI - 682 012. ADDL.R5. MARGRET, AGED 33 YEARS, D/O. JOHN CORRYEA, RESIDING AT 43/1687, AMBATT HOUSE, S.R.M. ROAD EXTN., PACHALAM, KOCHI - 682 012. (LEGAL REPRESENTATIVES OF DECEASED 3[rd] APPELLANT ARE IMPLEADED AS ADDITIONAL R2 TO R5 VIDE ORDER DATED 01.04.2016 IN I.A.No.1701/2015). BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) ADDL.R2 - R5 BY ADV. SRI.K.G.SARATHKUMAR R1 BY ADV. SRI.K.JAYAKUMAR (SR.) R1 BY ADV. SRI.P.B.KRISHNAN THIS REGULAR FIRST APPEAL ALONG WITH CROSS OBJECTION No.92/2006 HAVING BEEN FINALLY HEARD ON 26.03.2018. THE COURT ON 21.06.2018 DELIVERED THE FOLLOWING: DMR/- **C.R.** ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** ------------------------------------------------ R.F.A. No.499 of 2006 & Cross Objection No.92 of 2006 -----------------------------------------------Dated this the 21[st] day of June, 2018 J U D G M E N T ## **Somarajan, J.** The defendants in O.S.No.366/2005 on the file of the Sub Court, Ernakulam, came up with this appeal, aggrieved by the decree and judgment dated 26.08.2006 in so far as it is against them. Cross Objection was submitted by the plaintiff aggrieved by the decree and judgment in so far as it is against him. 2. The dispute is with respect to the non performance of respective part of contract for sale, dated 11.11.2003, by the parties, and the payment of various amounts including advance amount out of the sale consideration. The execution of the contract for sale is not in dispute. The agreement was entered into for the sale of approximately 503-509 cents of property at the rate of Rs.26,000/- per cent. At the time of execution of the contract for sale, the defendants furnished copies of all documents of title to the plaintiff with an undertaking that the originals would be produced at the time R.F.A. No.499/06 & Cross Objection No.92/06 2 of execution and registration of the sale deed. It was for a period up to 15.05.2004. Payment of an advance amount of Rs.12,00,000/- (Rupees Twelve Lakhs) at the time of execution of the contract was admitted. There is a stipulation in the contract for payment of Rs.15,00,000/- (Rupees Fifteen lakhs) as further advance subject to the condition that the defendants shall settle the dispute pertaining to the approach road from the public road with the kudikidappukars on or before 07.01.2004. It is further alleged by the plaintiff that the time has not been made as the essence of the contract. An amount of Rs.18,00,000/- (Rupees Eighteen lakhs) out of the sale consideration was given to defendants on 12.03.2004 and the same was acknowledged by them in the original agreement dated 11.11.2003. But, the sale could not be effected before 15.05.2004 due to the lethargic attitude of defendants. Based on the assurance given by the defendants to settle the dispute regarding the approach road, another amount of Rs.18,00,000/- (Rupee Eighteen lakhs) was given by the plaintiff on 31.10.2004 and the period of agreement was extended till 31.12.2004. It was also agreed by the R.F.A. No.499/06 & Cross Objection No.92/06 3 plaintiff to pay a further amount of Rs.3,00,000/- (Rupees three lakhs) on or before 10.11.2004 and it was paid on 11.11.2004. The payment of Rs.18,00,000/- (Rupees Eighteen lakhs) was acknowledged by the defendants in the agreement and the further payment of Rs.3,00,000/- (Rupees Three lakhs) was also indicated therein. But, no separate endorsement was made in that behalf. Thereby a total amount of Rs.51,00,000/- (Rupees Fifty one lakhs) was paid to defendants out of the sale consideration. In addition to the same, the plaintiff had improved the property by spending an amount of Rs.30,00,000/- (Rupees Thirty lakhs). The extent of property approximately comes to 503-509 cents. The defendants admitted the receipt of Rs.12,00,000/- (Rupees Twelve lakhs) by way of advance and Rs.18,00,000/- (Rupees Eighteen lakhs) each on two occasions, but disputed the payment of Rs.3,00,000/- (Rupees Three lakhs). 3. The lower court decreed the suit allowing specific performance of the contract for sale and found that there is no satisfactory evidence to prove the disputed payment of Rs.3,00,000/- (Rupees Three lakhs). Aggrieved by the said R.F.A. No.499/06 & Cross Objection No.92/06 4 decree and judgment, this appeal and cross objection were filed. 4. There is no dispute with respect to the payment of Rs.48,00,000/- (Rupees Forty Eight lakhs) inclusive of advance amount of Rs.12,00,000/- (Rupees Twelve lakhs) out of the sale consideration. The payment of advance amount of Rs.12,00,000/- (Rupees Twelve lakhs) and the subsequent payment of Rs.18,00,000/- (Rupees Eighteen lakhs) each on two occasions were acknowledged by the defendants in the original written contract for sale. In so far as the payment of Rs.3,00,000/- (Rupees Three lakhs) is concerned, there is no such endorsement/acknowledgment anywhere in the contract for sale and no satisfactory evidence other than his interested testimony was adduced. The fact that there was a practice of endorsing/acknowledging each and every payment in the original written contract, various acknowledgments made therein, and the non inclusion of the disputed payment of Rs.3,00,000/- (Rupees Three lakhs) would make the case of defendants more probable and acceptable. The interested testimony of the plaintiff cannot be substituted in the place of R.F.A. No.499/06 & Cross Objection No.92/06 5 proof regarding payment of the disputed amount. The improvement alleged to have been made over the property also stands on the same footing, as there is no satisfactory evidence to prove the alleged improvement. Further, there is no provision in Exhibit A1 contract for sale permitting the plaintiff to effect improvements over the property. Even the possession of property was not parted with at the time of Exhibit A1 contract. 5. Regarding the “readiness and willingness” to perform the respective part of the contract for sale, the admission made by the plaintiff that even at the time of contract for sale, copies of all original title deeds and documents were handed over to him by the defendants with an assurance that the originals would be produced at the time of execution of the sale, is relevant to the extent of showing a valid transferable right and title with the defendants at the time of execution of the contract for sale. No case of defective title was either advanced or let in. Then there may not be any occasion for the defendants not to perform their part of contract, especially when they have received two other payments by R.F.A. No.499/06 & Cross Objection No.92/06 6 extending the period of contract. 6. Regarding the dispute pertaining to the way, even according to the plaintiff, it was settled and the way was taken over by the Municipality. The main reason for non execution of the contract for sale before the expiry of the period originally agreed stated to be non settlement of the dispute pertaining to the above said way. Going by the various clauses in Exhibit A1 contract for sale, it is clear that the said requirement is really not connected with the title over the property agreed to be sold. Hence, it is not an integral part of sale of immovable property to be performed. It is not at all an encumbrance or liability attached to the property agreed to be sold as the subject matter of the suit is confined only to the property lying on the side of the said way. The right of user of the way alone was agreed to be sold. In other words, the said requirement would not come under the purview of any encumbrance or liability over the property and it would not create any defect to the title of the property. Now the dispute is already settled between the defendants and the kudikidappukars and the way was taken over by the R.F.A. No.499/06 & Cross Objection No.92/06 7 Municipality. 7. The payment of various amounts which comes to Rs.48,00,000/- (Rupees Forty Eight lakhs) would be an indication of “readiness and willingness” of the plaintiff in getting the sale deed executed, in performance of the contract for sale. It is the settled proposition that “readiness and willingness” shall not be subject to any condition other than the one agreed into by the parties. When there is a dispute regarding the payment of amount out of the sale consideration and if the dispute is not resolved or settled, the plaintiff cannot be said to be ready and willing to perform his part of contract, unless he is willing to pay the disputed amount of sale consideration or to show that he is not liable to pay the said amount. The finding rendered by the Lower Court, confirmed by this Court, regarding the disputed amount of Rs.3,00,000/- (Rupees Three lakhs), being part of balance sale consideration, and absence of specific pleading that the plaintiff was ready and willing to pay off the balance sale consideration inclusive of the disputed amount would take away the readiness and willingness pleaded by the plaintiff. R.F.A. No.499/06 & Cross Objection No.92/06 8 There is no specific pleading anywhere in the plaint that he was ready and willing to pay off the disputed amount being part of the balance sale consideration. In the said circumstance, the “readiness and willingness” of the plaintiff to pay the balance sale consideration, excluding the disputed amount of Rs.3,00,000/- (Rupees Three lakhs), can only be termed as a conditional one and hence cannot be brought under the purview of the expression “readiness and willingness”. 8. In a suit for specific performance of contract, being the relief discretionary based on equitable principle, the Court has to consider all the relevant factors which would enable the Court to mould the relief in accordance with the mandate under Section 12 of the Act when it is found to be not proper to decree the specific performance in whole. The advance amount, if any, paid at the time of execution of the contract and the subsequent payments, if any, out of the total sale consideration and its extent, the period of contract originally agreed and its extension, if any, should be taken into consideration in reference to the time in which the contract R.F.A. No.499/06 & Cross Objection No.92/06 9 was executed, part payments were made, the time taken for disposal of the suit, the high rate of inflation and the enhancement of value of immovable property day by day. Clause (c) of Section 20(2) of the Specific Relief Act stipulates that the Court can exercise its discretion not to decree specific performance when the circumstances under which the contract was entered into, though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1 states that mere inadequacy of consideration, or that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Clause (c) is excluded from the purview of Explanation 1 and it is so conspicuous. In other words, the expressions “unfair advantage” and “hardship” with its explanation incorporated under Section 20(2) of the Specific Relief Act is applicable only to cases which would fall under clause (a) or (b) and not to clause (c). The circumstances under which a contract was entered may become inequitable either in part or in whole, in enforcement R.F.A. No.499/06 & Cross Objection No.92/06 10 of specific performance. The time taken for its enforcement through Court has become so vulnerable due to the enhancement of value of immovable property day by day and high inflation rate of Indian currency. The time taken for ultimate disposal of the suit for specific performance after long pendency, both in Trial Court and in Appellate Court, may cause the contract for sale of immovable property sometimes inequitable either in whole or in part. 9. In the instant case, the total sale consideration would come to Rs.1,32,34,000/- (Rupees One crore thirty two lakhs and thirty four thousand), out of which an amount of Rs.48,00,000/- (Rupees Forty Eight lakhs) alone was paid by the proposed purchaser/plaintiff. The total extent of the property approximately comes to 509 cents. The amount of Rs.48,00,000/- (Rupees Forty Eight lakhs) at the rate of Rs.26,000/- (Rupees twenty six thousand) per cent would be equivalent to the value of 184.61 cents of property approximately. In other words, the defendants have received only an amount of Rs.48,00,000/- (Rupees Forty Eight lakhs), being the approximate value of 184.61 cents of property, out R.F.A. No.499/06 & Cross Objection No.92/06 11 of 509 cents of property. With respect to the remaining extent of property, which comes to approximately 324.39 cents, the contract become so vulnerable to the interest of defendants due to high inflation and enhancement of value of immovable property day by day and hence that part of contract pertaining to an approximate extent of 324.39 cents has become inequitable to enforce specific performance. In other words, it is just and fair to order specific performance of part of contract pertaining to the sale consideration already paid which comes to Rs.48,00,000/- (Rupees Forty eight lakhs) proportionately over the property which would come to an approximate extent of 184.61 cents out of 503-509 cents covered by the contract for sale. In the said circumstances, granting of specific performance of the entire contract for sale is inequitable and cannot be granted. 10. As discussed above, granting of specific performance of a part of contract is governed by Section 12 of the Specific Relief Act with its restriction imposed under Sub section (3), and it is up to the party who is seeking specific performance to express his/her willingness. The legal position was settled by R.F.A. No.499/06 & Cross Objection No.92/06 12 this Court in R.F.A.No.259/2010 dated 19.03.2018 **[Hajira and others v. Anto and others].** It was further held in that decision that the high inflation and enhancement of value of immovable property makes the time be the essence of the contract for sale of immovable property in the changed scenario prevailed at present. When the contract for sale became inequitable either in part or in whole, it is permissible to grant specific performance of contract in part, subject to the satisfaction of the mandates as envisaged under Section 12 of the Specific Relief Act. Specific performance of the contract for sale being discretionary, it is always permissible to explore the application of Section 12 of the Act in proper cases with a view to advance justice. Granting of a decree of specific performance for a consideration agreed years back without having substantial payment out of the sale consideration may result in unjustifiable loss and damage to the seller of the property due to efflux of time. It is always advisable to avail the benefit under Section 12 of the Specific Relief Act in proper cases, so as to enable the court to pass a decree in R.F.A. No.499/06 & Cross Objection No.92/06 13 terms of Section 12 of the Specific Relief Act. So, we are of the view that the instant case would fall under the category of cases in which Section 12 of the Act can be applied, subject to the satisfaction of requirements under Section 12 of the Act. Hence, the decree and judgment of the Lower Court is hereby set aside and the matter is remanded back to the Lower Court so as to enable the plaintiff to avail the benefit under Section 12 of the Specific Relief Act within a time schedule fixed by the Lower Court, failing which the suit shall be disposed of in accordance with what is stated above. Cross Objection is also disposed of accordingly. No order as to cost of appeal. Sd/- ## **A.M.SHAFFIQUE (JUDGE)** Sd/- ## **P. SOMARAJAN (JUDGE)** DMR/- R.F.A. No.499/06 & Cross Objection No.92/06 14 The figure and the words “ **Rs.48,00,000/- (Rupees forty eight lakhs only)”** occurring in line 2 of paragraph 4 of page 4; line 2 of paragraph 7 of page 7; lines 4, 7, 11 and 22 of paragraph 9 of pages 10 and 11 are corrected and substituted with the figure and the words **“Rs.49,50,000/(Rupees forty nine lakhs fifty thousand only)”;** the figure **“184.61”** occurring in lines 9, 12 and 24 of paragraph 9 of pages 10 and 11 is corrected and substituted with the figure **“190.38”** and the figure **“324.39”** occurring in lines 14 and 18 of paragraph 9 of page 11 is corrected and substituted with the figure **“318.62”** as per order dated 29.10.2018 in I.A. 1/2018. Sd/- **Registrar (Judicial) (in charge)**