C. P. Ambujam v. Pappu Shanmughan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933** **AS.No. 19 of 1998(C)** **---------------------------OS.346/1994 of ADDL.SUB COURT, ALAPPUZHA** **....................** ## **APPELLANT/PLAINTIFF:** **------------------------------------** **C.P.AMBUJAM, RESIDING AT BHAVANI MANDIRAM, ANTHEKKE PARAMBIL, ARATTUVAZHI WARD, KANJIRAMHCHIRA MURI, ARYAD SOUTH VILLAGE** **BY ADVS. . SRI.G.UNNIKRISHNAN SRI.G.P.SHINOD SRI.P.V.RAMESH SHANKAR** ## **RESPONDENTS/DEFENDANTS:** **------------------------------------------** **1. PAPPU SHANMUGHAN, RESIDING AT VELIYIL HOUSE, ARATTUVAZHI WARD, KANJIRAMCHIRA MURI, ARAYD SOUTH VILLAGE.** ## *** 2. PAPPU DIVAKARAN OF -DO - -DO- DIED** **ADDL.R3. D. SOMAN, S/O. PAPPU DIVAKARAN, RESIDING AT VELIYIL HOUSE, ARATTUVAZHI WARD, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE.** ## **ADDL.R4. D.SURESH, -DO-, -DO-** **THE LEGAL REPRESENTATIVES OF DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 3 AND 4 VIDE ORDER DATED 24.05.2011 IN I.A.NO.1716/2009.** ## **ADVS. SRI.M.V.MATHEW** **SRI.MATHEW JAMES FOR ADDL.R3.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/7/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ln** ## **P.BHAVADASAN, J.** **---------------------------A.S.No. 19 of 1998 ---------------------------------** **Dated this the 12[th] day of July, 2011** ## **JUDGMENT** The plaintiff in O.S.No.346/1994, who was declined the relief of specific performance, but was granted a decree for return of advance amount has come up in appeal. 2. According to the plaintiff, as per Ext.A1 dated 17.05.1994, the first defendant agreed to sell 10 cents of property at Rs.65,000/- per cent. A sum of Rs.50,000/- was paid as advance. It is claimed that the plaintiff was always ready and willing to pay the balance consideration and get the sale deed executed. The plaintiff requested the first defendant for execution of the sale deed. He sought for some more time and accordingly the time was extended. However, the first defendant delayed the matter. When the plaintiff approached the first defendant through her husband, the first defendant expressed his unwillingness to execute agreement and as consequence the plaintiff did not get the conveyance of the property. The plaintiff sustained a loss of Rs.10,000/- due to the breach of the agreement by defendants. **A.S.No. 19 of 1998 2** Suit was filed for specific performance or in the alternative return of advance amount was sought with damages. 3. The first defendant filed a written statement contending that the suit is not maintainable. The plaint schedule properties jointly belonged to the defendants. The agreement for sale is a concocted document and it is not executed by them. The case set up by the first defendant was that they had occasion to borrow Rs.50,000/- from the plaintiff's husband. As a security for the said loan, the first defendant put his signature on blank papers as demanded by the plaintiff's husband. There was no agreement for sale of the property and the first defendant has not received advance Rs.50,000/-. The first defendant is ready to repay Rs.50,000/- to the plaintiff. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The second defendant filed a separate written statement contenting that the second defendant is not aware of the facts stated in the plaint and and he was not a party to the agreement. He therefore, prayed for a dismissal of the suit. **A.S.No. 19 of 1998 3** 5. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiff. First defendant examined as DW1. The trial court on an evaluation of the evidence came to the conclusion that Ext.A1 was in fact executed by the first defendant and he had committed breach of contract. However, the trial court was not inclined to grant specific performance and exercising its discretion under Section 20 of the Specific Relief Act directed return of the advance amount only. 6. The question that arises for consideration is whether any grounds are made out to interfere with the discretion exercised under Section 20 of the Specific Reliefs Act. 7. The learned counsel appearing for the appellant pointed out that the trial court was not justified in declining specific performance in the facts and circumstances of the case and the evidence available adduced in the case. It was pointed out that the plea taken by the defendant was found to be false and it was found that he was guilty of breach of contract also. Under those **A.S.No. 19 of 1998 4** circumstances, there was no equity in his favour. According to the learned counsel, the trial court ought to have granted a decree for specific performance. 8. Per contra, the learned counsel appearing for the respondents pointed out that it is true that the lower court has found that the agreement has been executed by the first defendant, but later entertained doubt regarding the veracity of the transaction and also has taken note other facts into consideration, thought it was not equitable to grant specific performance and interest of justice would be met by directing the return of the advance amount received by the first defendant. The learned counsel pointed out that the court below has arrived at the conclusion after evaluating the evidence and no grounds are made out to interfere with the discretion exercised by the lower court. 9. It is true that the plea taken was that signature of first defendant was obtained on blank papers. That was found to be false. It was also found that he had committed breach of agreement. **A.S.No. 19 of 1998 5** 10. The learned counsel appearing for the appellant placed reliance on the decision reported in [( **2008) 11 SCC 45] Silvey and others v. Arun Varghese and another** contended that conduct of the parties cannot be ignored while considering the question of exercise of discretion for decreeing or denying a decree for specific performance. The learned counsel also relied on the decision reported in **(2008(12) SCC 67) Pratap Lakshman Muchandi and others v. Shamlal Uddavadas Wadhwa and others** and contended that at any rate, since the defendant was found to be at fault, equity should have been worked out by ordering a higher sum to be paid to the first defendant and directing to convey the property. ## 11. Section 20 of the Specific Relief Act reads as follows: _Discretion as to decreeing specific performance:(1) The jurisdiction 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 principles and capable of correction by a court of appeal._ (2) The following are cases in which the court may properly exercise discretion not to decree specific **A.S.No. 19 of 1998 6** ## 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 with reference to the circumstances existing at the time of the contract._ **A.S.No. 19 of 1998 7** _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._ 12. It is well settled by now that the specific performance is not a matter of right and the court has wide discretion in the matter. 13. The discretion vested with the court is to be exercised in accordance with established principles of law. The discretion vested is not to be exercised arbitrarily but on a evaluation of the evidence and facts and circumstances disclosed in the case. One cannot say that particular circumstance or circumstance will determine the nature of discretion to be exercised. It all depends upon the facts of each case. 14. It is true that the case on hand the defences set up were found to be false. But mere fact that he has put forward a false claim, though a fact to be noted, by itself, is not sufficient **A.S.No. 19 of 1998 8** to grant a decree for specific performance. A host of other factors like the position in which the parties are placed, the equities in favour of either party, the injuries that could be caused to either party etc. are some of the factors which may be relevant. 15. In the case on hand, the trial court had some suspicion regarding the transaction and that court thought it fit, based on the circumstances, directing return of advance amount received would meet ends of justice. 16. On going through the evidence in this case, it could not be said that the discretion exercised is either perverse or unwarranted going by the records of this case. Merely because a different view is possible is not a ground to interfere in appeal. The view taken by the trial court is a plausible view. No grounds are made out to interfere with the decree of the court below. This appeal is without any merits and it is accordingly dismissed. No order as to costs. ## **P.BHAVADASAN, JUDGE.** ## **A.S.No. 19 of 1998 9** ln