Antony v. Prakash (RSA No. 391 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944** **RSA NO. 391 OF 2012** **AGAINST THE JUDGMENT AND DECREE DATED 14/6/2011 IN AS 45/2010 OF DISTRICT COURT THODUPUZHA AND DECREE AND JUDGMENT DATED 29/1/2010 IN OS 99/2002 OF MUNSIFF COURT, DEVICOLAM** ## **APPELLANT/APPELLANT/DEFENDANT:** ANTONY, AGED 47 YEARS, S/O.EMMANUEL, KAIPPANANICKAL HOUSE, ELLAKAL P.O., KUNJITHANNY VILLAGE, KUNJITHANNY KARA, DEVIKULAM TALUK, IDUKKI DISTRICT. BY ADV SRI.S.JIJI ## **RESPONDENT/RESPONDENT/PLAINTIFF:** PRAKASH, AGED 42 YEARS, S/O.GOPALAPILLAI, KOCHUPARAMBIL HOUSE, KUNJITHANNY VILLAGE, KUNJITHANNY KARA, DEVIKULAM TALUK, IDUKKI DISTRICT. BY ADV SRI.LATHEESH SEBASTIAN **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2022, THE COURT ON 10.01.2023 DELIVERED THE FOLLOWING:** RSA No.391 of 2012 2 ## **JUDGMENT** Dated this the 10[th] day of January, 2023 This regular second appeal has been directed against the judgment and decree in A.S. No.45/2010 on the file of District Court, Thodupuzha, which in turn arise out of the judgment and decree in O.S. No.99/2002 on the file of Munsiff’s Court, Devikulam. 2. Defendant is the appellant. The suit is one for specific performance of contract and alternatively for return of advance amount. (Parties would hereafter be referred as per their status before the trial court). Plaintiff entered into an agreement for sale of plaint A schedule property with the defendant on 03.01.2002 agreeing to purchase the property on a total consideration of Rs.25,000/- and on the date of agreement Rs.19,000/- was paid as advance. The agreement was to transfer the property on or before 30.03.2002 after measuring the property. Plaintiff was RSA No.391 of 2012 3 always ready and willing to perform his part of the contract. On 20.03.2002 plaintiff informed the defendant about his readiness and willingness to perform the contract, but the defendant failed to comply the conditions in the agreement. In spite of repeated demands he was not prepared to execute the document receiving the balance consideration. So, a notice was issued on 18.05.2002 calling upon the defendant to execute the document receiving the balance sale consideration. Defendant refused to accept the notice thereafter the suit was filed. 3. Defendant filed written statement admitting that the plaint schedule property belongs to him but the agreement for sale with the plaintiff is denied. The demand from the plaintiff to execute the agreement is also denied. According to him, plaintiff has been conducting a general store cum tea shop at Ellakkalkara. Defendant used to purchase house hold articles from the plaintiff’s shop and an amount of Rs.7,750/-was due from the defendant and as a settlement of that account defendant agreed to pay Rs.10,000/- inclusive of interest. As a security for the RSA No.391 of 2012 4 same, the plaintiff demanded blank signed stamp paper. On 17.02.2002 the defendant repaid the entire amount of Rs.10,000/- in the presence of witnesses. But the plaintiff did not return the blank signed stamp paper. That has been misused for concocting the agreement and thereafter the suit was filed to extort money. Hence, there is no cause of action for the plaintiff to file the suit. He is a coolie and residing in the house situated in the plaint schedule property. If the suit is decreed he will be put to hardship and loss which cannot be compensated in terms of money. 4. PW1 and PW2 examined. Exts.A1 to A6 marked from the side of the plaintiff. DW1 to DW3 examined and Ext.B1 marked from the side of the defendant. 5. On evaluating the facts, circumstances and evidence the trial court found that the defendant executed Ext.A1 agreement and plaintiff is entitled for specific performance of contract and accordingly the suit was decreed. 6. Against which the appeal was filed and the 1[st] appellate court on re-appreciating the facts, circumstances RSA No.391 of 2012 5 and evidence confirmed the judgment and decree passed by the trial court and dismissed the appeal. 7. Having lost before the two forums appellant approaches this Court. Notice was issued to the respondents. Both sides were heard. 8. According to the learned counsel for the defendant, the reason for not granting the alternative relief for return of advance money has not been considered by both courts. It is also his contention that the specific performance of contract is a discretionary relief and the court is not bound to grant the relief merely because it is lawful to do so and the courts below have not exercised the discretion in not granting the specific performance and returning the advance amount. According to him, 25 cents of property is now ordered to be sold for Rs.25,000/- and even though Rs.19,000/- alleged to have been given as advance the possession of the property is not handed over and the defendant is still in possession of the property. Defendant produced Ext.B1 document to prove that there was subsequent sale of the property by the defendant RSA No.391 of 2012 6 ## on a value of Rs.5,000/- per cent. 9. Learned counsel for the plaintiff/respondent on the other hand would contend that the agreement was of the year 2002 and during those period the property will not fetch the value of more than Rs.25,000/- for which it was agreed to be sold. Rs.19,000/- towards advance has also been paid on that day and the plaintiff was also ready and willing to perform the part of the contract and he had issued lawyer notice seeking for execution of the agreement on 18.05.2002 itself. It is also his contention that the defendant in this case is not entitled for the discretionary relief since he has not approached the court with clean hands. According to him the defendant denied the entire execution of the agreement and he had put forward a contention of purchase of the articles from the shop of the plaintiff and that an amount of Rs.7,750/- was due on that account and further that Rs.10,000/- was agreed to be paid in that account and that amount was paid on 17.02.2002. But the defendant could not establish even the payment of that amount of Rs.10,000/-. RSA No.391 of 2012 7 10. It is also contended that the defendant is a person owning 2 acres 56 cents of land and out of it he had agreed to sell 25 cents of property and it was a bonafide transaction and both courts below found against the contention put forward by the defendant of the alternate transaction of the amount due and subsequent repayment. In the written statement his contention is that one stamp paper was obtained but Ext.A1 agreement is in three stamp papers. He would also contend that no contention has been raised by the defendant in the written statement that the value of the property was less and only during evidence such a contention has been put forward. So, in effect according to the learned counsel, the plaintiff has no property of his own and he is residing in a rented house. He has agreed to purchase 25 cents of land as per Ext.A1 from the defendant and both courts below concurrently found the bonafides of the transaction and ordered specific performance of contract. Hence there is no substantial question of law emerging for consideration in the second appeal. RSA No.391 of 2012 8 11. Plaintiff was examined as PW1 and the scribe of Ext.A1 was examined as PW2 to prove the agreement. Both courts below accepted the evidence of PW1 and PW2 and the execution of the agreement was found in favour of the plaintiff. Though the defendant put forward a contention that an amount of Rs.7,750/- is due from him in connection with purchase of articles from the shop of the plaintiff and in connection with that he agreed to settle the claim for Rs.10,000/- including the interest and thereafter he repaid the amount on 17.02.2002 both courts below was not prepared to accept the contention so put forward. 12. It is argued that on verifying Ext.A1 it could be seen that contents have been written after obtaining blank stamp paper. That contention was found against by both courts below. On verifying Ext.A1 also there is nothing to indicate or infer that it is a document subsequently created after obtaining the signature of the defendant in a blank paper. On verifying Ext.A1 agreement also it is clear that minute description regarding the survey number and the devolution of property with Thandaper account has been RSA No.391 of 2012 9 stated in Ext.A1 with specific boundaries. So without divulging those facts by the defendant it may not be possible to add all those details in Ext.A1 agreement. So the evidence of PW2 the scribe, can be read in corroboration with evidence of PW1, the plaintiff regarding the execution of the agreement in between the parties. So also though the defendant put up a contention regarding the money due from him to the plaintiff and agreement to pay Rs.10,000/on that account to him and further that the amount has been paid etc. it could not be successfully established by him though witness were examined. So courts below rightly found that Ext.A1 agreement has been duly executed by the defendant agreeing to sell the plaint A schedule property for a total consideration of Rs.25,000/- and received Rs.19,000/- on the date of agreement. I find no reason to interfere with the concurrent finding of facts entered into by the courts below. 13. The most crucial argument advanced by the learned counsel is with regard to the legality of the exercise of discretion by the courts below in granting the specific RSA No.391 of 2012 10 performance of contract without considering the prayer for return of advance amount. 14. First of all, it is to be pointed out that the suit is filed for specific performance of contract and alternatively the plaintiff sought for return of advance amount. So, the question of consideration of alternative prayer would come only on refusal of prayer for specific performance of contract. So, the contention of the learned counsel for the defendant that alternative prayer for return of advance amount is not considered by the courts below is not at all a contention which could be accepted or sustained. So, the question would be whether the courts below went wrong in exercising the discretionary relief by granting specific performance of contract in favour of the plaintiff. Section 20 of the Specific Relief Act which reads thus: ## _**“20. Discretion as to decreeing specific**_ _**performance.-**_ (1) The juri _sdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principle and capable of correction by a court of appeal._ RSA No.391 of 2012 11 _(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:-_ _(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non- performance would involve no such hardship on the plaintiff, or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance._ _Explanation 1.- Mere inadequacy of consideration, or the mere fact 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)._ _Explanation 2.- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined_ RSA No.391 of 2012 12 _with reference to the circumstances existing at the time of the contract._ _(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance._ _(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.”_ 15. The learned counsel for the defendant bring to my attention that **Naila Abdul Nazar v. Gopalakrishnan [Laws (KER)-2017-2-26]** a Division Bench of this Court in a suit for specific performance of contract dealt with Section 12(3) of Specific Relief Act, 1963 (in short 'Act'). It has been held that the power to grant decree of specific performance is discretionary under Section 20 of the Specific Relief Act. 16. Even independent of Section 20 the grant of decree of specific performance of contract is on the terms of Section 12 of Specific Relief Act is discretionary. 17. **Parak.Unnan veetill** _**Joseph's S**_ **on Mathew v. Nedumbara Kuruvila's** _**S**_ **on Laws (SC) – 1987 – 9 - 17** RSA No.391 of 2012 13 was relied on by the learned counsel and Para No.14 was highlighted which reads thus: _“(14.) Section 20 of the Specific Relief Act. 1903 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. …........”_ 18. **Sathya Jain (D) Tr. LRs v. Anis Ahmed Rushdie (D)Tr. LRs. [Laws (SC) – 2012 – 12 - 14]** is further brought to my attention, para No.28 is relevant to be extracted, which reads thus: _“the discretion to direct specific performance of an agreement and that too after elapse of long period of time has to be exercised on sound, reasonable, rationale and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specif Relief Act, 1963 cannot be entrapped within any precise expression of language and contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test_ RSA No.391 of 2012 14 _would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of given case. …........”_ 19. According to him, the courts below have not properly exercised the discretion while granting specific performance of contract with respect to the plaint A schedule property. Whereas the learned counsel for the plaintiff bring to my attention **Zarina Siddiqui v. A. Ramalingam Alias A. Amarnathan [2014 KHC 4697]** where in while dealing with scope of Section 16 and Section 20 of the Specific Relief Act, 1963, the Apex Court held that the conduct of parties is a relevant factor while exercising the discretionary jurisdiction. If the defendant does not come with clean hands and suppressed material facts and evidence and mislead the court, such discretion should not be exercised while refusing to grant specific performance and the plaintiff is not to be denied decree of specific performance only on account of phenomenal increase of land price during the pendency of litigation. Para No.34 and 35 of the said judgment is relevant in this RSA No.391 of 2012 15 ## context to be quoted which reads thus: _“34. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance._ _35. In the instant case, as noticed above, although defendant no.2 held a registered power of attorney on behalf of defendant no.1 to sell and dispose of the property, but the defendants not only made a false statement on affidavit that the power of attorney had authorized the second defendant only to look after and manage the property but also withheld the said power of attorney from the Court in order to misguide the Court from truth of the facts. Further, by registered agreement the defendants agreed to sell the suit premises after receiving advance consideration but they denied the existence of the agreement in their pleading. Such conduct of the defendants in our opinion, disentitle them to ask the Court for exercising discretion in their favour by refusing to grant a decree for specific performance. Further, if a party to a lis does not disclose all material_ RSA No.391 of 2012 16 _facts truly and fairly but states them in distorted manner and mislead the Court, the Court has inherent power to exercise its discretionary jurisdiction in order to prevent abuse of the process of law.”_ 20. So, from the above settled positions there is no doubt to the proposition that grant of specific performance is a discretionary relief and the court is not bound to grant such relief merely because it is lawful and the court is also bound to exercise the discretion on sound reasonable principles and not arbitrarily. The court may refuse to exercise the discretion on satisfaction of factors provided under Section 20(2) of the Act which has already been referred to. 21. **Raveendran v. Gopi [2014 (4) KHC 150]** is also relied on wherein a learned Single Judge of this Court while dealing with the question of discretion to be exercised in the matter of grant of specific performance in Para No.11 it has been held as follows: _“11. Regarding the discretionary relief of specif performance, it seems that there is no specific plea from the part of the defendant that it is inequitable to_ RSA No.391 of 2012 17 _grant the relief of specific performance in respect of Ext.A1 contract. It has not been contended that there is huge escalation in the market value of the property and therefore, it will be inequitable to grant such a relief to the plaintiff. In the absence of such a specific plea and any data regarding the escalation of the market value, this Court in the second appellate stage cannot interfere with the concurrent findings entered by the Trial Court as well as the lower Appellate Court by which specific performance has been granted to the plaintiff. Unless and until such a plea has been taken, this Court, at this stage, cannot order payment of any higher amount as consideration than what was agreed to between the parties in Ext. A1. In a way, the execution of Ext. A1 is admitted. At the same time, the plea that was taken up was that it was executed just as an agreement for sale. In view of the concurrent findings entered by both the Courts below, the said findings on facts are not liable to be interfered with. In fact, there is no question of law involved in this second appeal and therefore, the impugned judgment and decree cannot be interfered with.”_ 22. In this case also there is no specific contention in the written statement that agreed value of the property is less. One of the reasons projected by the learned counsel is with regard to the inadequacy of consideration because the RSA No.391 of 2012 18 property was agreed to be sold for an amount of Rs.1000/per cent, which according to him is inequitable and he relies on Ext.B1. Though attempt was made during evidence by producing Ext.B1 agreement for sale to show that he agreed to sell property on a centage value of Rs.5,000/- it has come out that Ext.B1 has not been materialized and property has not been sold as per that agreement. Even otherwise without any specific pleading to the effect that the value of property is low and there was escalation in the market value of property the evidence and argument advanced in that regard cannot be looked into. 23. Moreover, the transaction in this case was in the year 2002 and the property is also situated in Kunjithanni Village in Devikulam Taluk. Defendant has no contention in the written statement that the value of the property shown in the agreement is low compared to the market value prevailing during that time. No convincing materials were produced before the Courts below to conclude that value of the property shown in Ext.A1 or the agreed price between the parties was unconscionable or inequitable at the time RSA No.391 of 2012 19 when the agreement was entered into. 24. So also it has come out in evidence that the defendant had not approached the Court with clean hands. He denied the entire transaction and denied even the execution of the agreement and put forward a contention regarding the amount due from him to the plaintiff in connection with purchase of articles from his shop and further settling the account for Rs.10,000/- in between them and that he had paid that amount also. But he could not prove the defense so set up. Discretionary relief can be claimed only by a person who approaches the Court with clean hands as has been held in **Zarina Siddiqui v. A. Ramalingam Alias A. Amarnathan** referred above . If the defendant does not come with clean hands and suppressed material facts and evidence and mislead the Court , such discretion should not be exercised by refusing to grant specific performance. So this is a typical case in which the defendant stoutly denied the execution of Ext.A1 agreement itself and put forward a contention of obtaining his signature in a blank stamp paper which was found to be false. Hence RSA No.391 of 2012 20 defendant is not entitled to content that plaintiff is not entitled for the discretionary relief and the alternative relief for return of advance amount ought to have been awarded by the court. Though the defendant contended in the written statement that he is residing in the plaint schedule property, it is not disputed that his house is not situated in the 25 cents of property. So on a meticulous evaluation of the rival contentions, I am of the considered view that the courts below on appreciating the facts, circumstances and evidence adduced in a correct perceptive and granted specific performance of contract in favour of the plaintiff. It has also come out that a sale deed also executed as per the decree passed and the case is posted for delivery of the property. So, I do not find any substantial question of law emerging for consideration in this second appeal. In the result second appeal is found to be devoid of any merit and hence dismissed. No cost. **Sd/-** **M.R.ANITHA JUDGE** SMF