Antony Davis v. Mano Mohan and Others

_**2020:KER:48981**_ ``` R.F.A.515/2004 ``` ``` 1 ``` **==> picture [41 x 42] intentionally omitted <==** # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE SHIRCY V. ``` ``` TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942 ``` ## `RFA.No.515 OF 2004` ``` AGAINST THE JUDGMENT IN OS 647/2000 DATED 08-06-2004 OF II ADDITIONAL SUB COURT,ERNAKULAM ``` ## `APPELLANT/PLAINTIFF:` ``` ANTONY DAVIS, S/O. DATIOUS, AGED 53, THOTTAKATHU HOUSE, CHERANELLORE DESOM, CHERANELLORE VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADV. SRI.K.R.VINOD ``` ## `RESPONDENTS/DEFENDANTS:` ``` 1P.MANO MOHAN(DIED) 2SUSHEELA W/O. LATE P.MANO MOHAN AGED 55, RESIDING AT NADUVILA PARAMBU, BLAYIKADAVU ROAD, CHERANELLORE VILLAGE, ERNAKULAM DISTRICT. 3HEMAN, AGED 30, S/O. LATE MANO MOHAN DO. DO. 4HIMA, AGED 28, D/O. LATE MANO MOHAN DO. DO. 5MINI, AGED 25, D/O. LATE MANO MOHAN DO. DO. R1 BY ADV. SRI.C.P.RAVIKUMAR R2 TO R4 BY ADV. SRI.G.HARIHARAN R2 TO R4 BY ADV. SRI.PRAVEEN.HARIHARAN. R2 TO R4 BY ADV. SMT.K.S.SMITHA PRAVEEN R2 TO R4 BY ADV. SMT.T.T.SHANIBA R2 TO R4 BY ADV. SRI.M.V.VIPINDAS R2 TO R4 BY ADV. SHRI.AMAL DEV D R5BY ADV.C.P.RAVIKUMAR ``` ``` THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020, THE COURT ON 22-12-2020 DELIVERED THE FOLLOWING: ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` ``` 2 ``` **==> picture [41 x 42] intentionally omitted <==** ## `JUDGMENT` ``` Dated this the 22[nd] day of December, 2020 ``` ``` Challenge is against the judgment and decree dated ``` ``` 8.6.2004 in O.S.No.647/2000 rendered by the learned II Addl. Sub Judge, Ernakulam in a suit for specific ``` ``` performance of contract; filed by the appellant/plaintiff. ``` ``` 2.For convenience and clarity, the parties ``` ``` herein would be referred to as the plaintiff and the ``` ``` defendant as per their status in the original suit. ``` ``` 3.Shorn off unnecessary details, the facts giving ``` ``` rise to the present appeal are as follows. The defendant ``` ``` (since deceased) was the owner in possession of the suit property having an extent of 15 cents. He entered into an agreement to sell the property with the plaintiff on 12.6.1999 fixing the total sale consideration as Rs.5,75,000/-. An amount of Rs.1,50,000/- was paid as advance. As per the agreement out of the balance, a sum ``` ``` of Rs.2,90,000/- was fixed to be paid within two months of ``` ``` the date of execution of the agreement and within 15 days the defendant had to hand over the original title deed to ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** ``` 3 ``` ``` the plaintiff after discharging the liability pending before Cheranelloor Co-operative bank and convince the plaintiff that the property was free of encumbrance. When the plaintiff paid Rs.2,90,000/-the defendant after discharging the liability handed over the original title deed to the plaintiff, but failed to comply with the other ``` ``` conditions stipulated in the agreement though the plaintiff was ready and willing to purchase the property. On 17.8.2000 defendant sent a lawyer notice raising a false ``` ``` contention that the plaintiff failed to pay the amount of Rs.2,90,000/-and thus violated the terms of the agreement. ``` ``` Though, the plaintiff has not obtained separate receipt for payment of Rs.2,90,000/- the same was paid even before completion of two months and he was ready to pay the balance sale consideration of Rs.1,35,000/- and to get the ``` ``` sale deed executed. However the defendant refused to do the same. Therefore, despite the plaintiff being ready and willing all the times to get the sale deed executed, the defendant failed to execute the sale deed. Hence, the suit. ``` ``` 4.The defendant filed written statement admitting the agreement and receipt of Rs.1,50,000/- as advance out of the total sale consideration of Rs.5,75,000/. It is stated that the stipulation was to pay ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` ``` 4 ``` **==> picture [41 x 42] intentionally omitted <==** ``` Rs.2,90,000/- within two months from 12.6.1999, the date of the agreement and to collect the documents by the defendant from Edappally Service Cooperative bank and to execute the sale deed for 7 cents of property. When the defendant received Rs.1,50,000/- on 12.6.1999 the defendant settled the liability on 14.6.1999 and obtained release deed. As requested by the plaintiff the defendant handed over the original title to the plaintiff on 21.6.1999. But the plaintiff failed to pay Rs.2,90,000/- as promised and ``` ``` so no document was executed with respect to 7 cents out of the suit property. The plaintiff is in fact liable to pay Rs.4,25,000/- towards the balance sale consideration. In fact the plaintiff has violated the terms and conditions of ``` ``` the agreement and so the defendant had forfeited the amount of Rs.1,50,000/-, is the contention raised by the ``` ``` defendants. ``` ``` 5.To substantiate the case the plaintiff examined himself as PW1 and also a witness as PW2. ``` ``` Exts. A1 to A5 were also marked on his side. The first defendant was examined as DW 1 and DW2 and 3 were also ``` ``` examined and marked Exts.B1 to B3. ``` ``` 6.After evaluation of the evidence, the court ``` ``` below found that the plaintiff had committed breach of ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** ``` 5 ``` ``` trust and therefore, declined to grant a decree for specific performance of contract. Aggrieved by the said judgment and decree, the plaintiff has come up with this appeal. ``` ``` 7.Heard Sri.K.R. Vinod, the learned counsel for ``` ``` the plaintiff and Sri.G.Hariharan, the learned counsel for the defendants. ``` ``` 8.The suit being the one for specific performance ``` ``` of the contract on payment of the balance sale ``` ``` consideration, the readiness and willingness was required to be proved by the plaintiff to get a decree as sought ``` ``` for. Ext. A1 is the suit document dated 12.6.1999. During the pendency of the proceedings, the first defendant after his examination as DW1 expired and the defendants 2 to 5 were impleaded as his legal representatives. As per ``` ``` Ext.A1, DW1 had agreed to alienate 15 cents of land and a building therein situated in Sy.No.35/1/3 of Cheranelloor village for a total sale consideration of Rs.5,75,000/-. It is an undisputed fact that an amount of Rs.1,50,000/- was received as advance towards the transaction. It is also not disputed that the time stipulated for execution of the agreement was 15 months. A perusal of Ext.A1 sale agreement would further reveals that certain other conditions are ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` ``` 6 ``` **==> picture [41 x 42] intentionally omitted <==** ``` also stipulated in the agreement regarding the ``` ``` transaction. The first condition was that out of the total sale consideration an amount of Rs.2,90,000/- was to be paid within a period of two months from the date of the agreement. The second condition was that within 15 days from the date of receipt of the said amount, the defendant had to clear off the liabilities outstanding with respect to the suit property pending before the Co-operative bank, Cheranelloor and the original title deed and other ``` ``` documents have to be entrusted to the plaintiff so as to prepare draft sale deed. The third condition was that within two months of the date of the agreement a sale deed has to be executed for 7 cents, excluding 2 ½ cents on the eastern side and 5 ½ cents on the western side in north south direction in favour of the plaintiff with the right to have transportation through the way and thereafter within 15 days the entire balance sale consideration have to be paid to the defendant. So it could be seen that an amount of Rs.2,90,000/- out of the total sale consideration have to be paid to the defendant within a period of two months from the date of the agreement. ``` ``` 9.The definite case of the plaintiff is that the said amount of Rs.2,90,000/- was paid as stipulated in the ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` ``` 7 ``` **==> picture [41 x 42] intentionally omitted <==** ``` agreement and the original title deed was handed over to him by the defendant but he did not perform the other stipulations in the contract. So he has a contention that the defendant neither measured the property nor handed over the re-survey sketch, the encumbrance certificate etc and thus the terms have been violated by the defendant. But it is pertinent to note that though the defendant had ``` ``` agreed the execution of the agreement as well the receipt of the advance amount, had vehemently denied the receipt of the amount of Rs.2,90,000/-. So a notice was issued to the plaintiff on 17.8.2000. Ext.A2 is the notice thus received by the plaintiff and Ext.A3 is the reply notice issued by the plaintiff denying the contents in the notice regarding non receipt of the amount of Rs.2,90,000/-. It is to be noted that though the plaintiff had contended that Rs.2,90,000/- was paid even before the two months stipulated in the agreement no receipt evidencing payment of the said amount was produced by the plaintiff. There is absolutely no scrap of paper available on record to substantiate the payment of Rs.2,90,000/-. Of-course the plaintiff as PW1 had given evidence before the court below regarding the payment of the said amount, but it is interesting to note that he could not give the details or ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** ``` 8 ``` ``` even the exact date of payment of Rs.2,90,000/- to the original defendant. If such a payment was effected by him, it would have been easy for him to furnish the details regarding the said payment. The plaintiff is an educated man who is dealing with insurance business and other financial transactions. But his case that he had handed over the amount of Rs.2,90,000/- to the defendant without ``` ``` a receipt or acknowledgment, is hard to believe. If there was receipt he could have established his readiness and willingness to perform his part of the contract by leading evidence to that effect. He did not offer any explanation for not demanding the execution of the sale deed for the 7 cents of property based on the said part payment. ``` ``` 10.Of course, he has examined PW2 as a witness ``` ``` to support his case. But PW2 is his employee, in fact his finance manager. Of-course he too deposed that no receipt was obtained by the plaintiff, though payment was effected. But it is difficult to believe the case of the plaintiff that without any document he along with PW2 had handed over major portion of the balance sale consideration of Rs.2,90,000/- to the defendant. Absence of a document to indicate part payment appears to be an after thought stand by the plaintiff to show his readiness and willingness to ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** ``` 9 ``` ``` perform the contract. An assumption in favour of the plaintiff is also not justified as the definite condition in the agreement was to get sale deed for 7 cents of property. That apart there is nothing on record to indicate why he remained silent till receipt of Ext. A2 from the defendant, if the payment was effected by him as stipulated in the agreement. No satisfactory explanation was offered by the plaintiff for not making such a demand to the defendant though he was entitled for the same. ``` ``` 11.Another important point to be noted is that ``` ``` the original title deed of the plaint schedule property is ``` ``` in the possession of the plaintiff. Though the plaintiff has contended that when the amount of Rs.2,90,000/- was ``` ``` given to the defendant he handed over the title deed. As noticed herein above, the evidence available on record appears to be not reliable. The mere possession of the title deed with the defendant alone is not sufficient to infer that there was payment of Rs.2,90,000/- as part of sale consideration to the defendant. Since the plaintiff could not give the details regarding the payment of the said amount, legally it is difficult to accept the case of the plaintiff that such a payment was effected. Issuance of Ext A2 dated 17.8.2000 demanding execution of the sale ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** ``` 10 ``` ``` deed on payment of balance sale consideration after adjusting the advance of Rs.1,50,000/- was in fact by the defendant and not by the plaintiff. Before receipt of Ext.A2 the plaintiff has not issued any notice to the defendant demanding performance of the sale agreement. Therefore,there is deficiency in the evidence on the side of the plaintiff. The property in dispute, however is in possession of the defendant. The conspectus of facts in the instant case justifies, the case of defendant as that the failure to perform the terms of the agreement was on the side of the plaintiff. Though on death of DW1 his legal ``` ``` representatives become responsible for performance here they have no liability to execute the sale deed. The evidence of PW1 supported by PW2 alone cannot be taken as a ground to infer that apart from the amount of ``` ``` Rs.1,50,000/- an amount of Rs.2,90,000/- had also been paid by him towards the sale consideration. ``` ``` 12.The defendant has a case that he had decided to sell the property to the plaintiff in order to meet the expenses for the marriage of her daughter. But as the marriage could not be conducted for some reason, he never insisted for the amount of Rs.2,90,000/- though he handed over the title deed and the other documents to the ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** **==> picture [14 x 8] intentionally omitted <==** ``` plaintiff and thus the plaintiff happened to be in ``` ``` possession of the same. The possession of the suit property is still with the defendants. ``` ``` 13.In the above background, the mere averment ``` ``` of the plaintiff that he had paid the amount of ``` ``` Rs.2,90,000/- towards sale consideration, without any ``` ``` endorsement, receipt or other document, is not sufficient ``` ``` so as to infer his readiness and willingness to perform the contract. It is thus clear that the plaintiff failed ``` ``` to prove the said averment by leading evidence. Essentially on the aforesaid findings itself, the other issues had ``` ``` become redundant. Hence the possession of the property was never passed to the plaintiff. Next, most importantly, as referred above the failure to call for the defendant to execute sale deed for portion of the suit property at the instance of the plaintiff has to be taken as a ground to conclude that he failed to prove his readiness and ``` ``` willingness to get a decree for specific performance of contract. ``` ``` 14.But at the same time it is to be noted that payment of the advance amount of Rs.1,50,000/- is admitted by the defendant and the fact that the title deed of the property is still in the possession of the plaintiff. But, ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** ``` 12 ``` ``` there is no prayer for return of the advance amount. It is significant to note that as per the provision of Order VII Rule 7 the relief can be molded by the court to do justice to the party. It is appropriate to reiterate the relevant provision for the sake of convenience which reads as ; ``` ``` “Relief to be specifically stated:- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.” ``` ## `15. In Kamalaksha Pai v. Kesava Bhatt [1971 KHC` ``` 393] it is held as follows: ``` ``` “5. O.7 R.7 of the Civil Procedure Code while enjoining upon every plaintiff to state specifically the relief which he claims either single or in the alternative, allows the court to grant reliefs which may always be given by it as it may think just “to the same extent as if it had been asked for”. Where a relief is asked for in the plaint on a certain basis, the fact that the plaintiff asks virtually for the relief on different ground at the time of the trial will not disentitle him to that relief, provided the defendant is not prejudiced. The court has jurisdiction to adjust the rights of the parties on the facts ascertained by it and to grant reliefs accordingly, the golden rule being that the ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` ``` 13 ``` **==> picture [41 x 42] intentionally omitted <==** ``` defendant should not be taken by surprise or be embarrassed by such relief being granted or on account of the minor shifting of ground. It may not be out of place to refer to a decision of the Supreme Court in Firm Srinivas Ram Kumar v. Mahabir Prasad (AIR 1951 SC 177) . Mukherjea J. (as he then was) observed: “ A plaintiff may rely upon different rights alternatively and there is nothing in the Civil P.C to prevent a party from making two of more inconsistent sets of allegations and claiming relief there under in the alternative. The question, however, arises whether, in the absence of any such alternative as in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence G on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff, to a separate suit.” ``` ``` 16.In Anil Kumar K. v Ajith and Others ``` ``` [2012(4) KHC 546] it is held that ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` ``` 14 ``` **==> picture [41 x 42] intentionally omitted <==** ``` “In the decision reported in Chief Secretary v. Mathai Kuriakose. , 1988 KHC 418 : 1988 (2) KLT 221 : 1988 (1) KLJ 628 : ILR 1988 (2) Ker. 494 : AIR 1989 Ker. 113 : 1988 (22) Re, this Court held that plaintiff is entitled to reliefs not pleaded, in exceptional circumstances. An exceptional circumstance would arise if among others, the following conditions are satisfied : (1) when the claim had been admitted by the defendant (2) no injustice could possibly result to the defendant by granting such relief (3) the relief was one which the plaintiff could have made. ``` ``` 17.Applying the ratio laid down in the above decisions to the facts of the present case and also to give a meaningful reading to the pleadings and most importantly, to serve the ends justice, the relief sought for in the suit can be molded. Since, the plaintiff is in possession of the original title deed of the suit property, it is just fair and reasonable to direct him to return the same to the defendants on receipt of the admitted amount of Rs.1,50,000/-. ``` ``` In the result, the appeal is allowed in part ``` ``` setting aside the judgment and decree under challenge. The plaintiff shall return the title deed of the plaint schedule property to the defendants on proper receipt and the defendants shall return the amount of Rs.1,50,000/- to the plaintiff. On receipt of the said amount, the plaintiff ``` _**2020:KER:48981**_ ``` R.F.A.515/2004 ``` **==> picture [41 x 42] intentionally omitted <==** **==> picture [14 x 8] intentionally omitted <==** ``` shall return the original title deed to the defendants. If ``` ``` the said amount is not paid within a period of three months ``` ``` from today the said amount will carry an interest at the ``` ``` rate of 6% per annum till realization. The parties shall bear their respective costs. ``` **==> picture [29 x 10] intentionally omitted <==** ## `SHIRCY V, JUDGE` ``` The judgment dated 22.12.2020 in RFA No.515/2004 will stand modified to the extent of ordering interest at the rate of 6% per annum to the decree amount of Rs.1,50,000/- from the date of suit till the date of realization. The judgment and decree will stand modified to that extent vide order dated 7/11/2022 in R.P No.136/2021. ``` **==> picture [125 x 27] intentionally omitted <==**