Davis v. Thomas and Others (A.S.No. 440 of 2000)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** **AS.No. 440 of 2000** **AGAINST THE JUDGMENT AND DECREE DATED 31-03-2000 IN OS NO.156/1995 of II ADDITIONAL SUB COURT,THRISSUR** **APPELLANT IN A.S./DEFENDANT NO.2 IN SUIT:** **DAVIS,SON OF CHIRAMMAL PUTHUKKARAN CHAKKAPPAN, KIZHAKKEKKOTTA DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.P.B.KRISHNAN** **- RESPONDENT NO.1 IN A.S. PLAINTIFF IN SUIT:** - ***1 THOMAS, SON OF THARAKAN DEVASSY, MILIPPADAM DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK. (DIED. L.RS IMPLEADED)** **- RESPONDENT NO.2 IN A.S. DEFENDANT NO.1 IN SUIT.** - **2 KURIAN, SON OF PUTHIYAKATH ITTIARA, PALAKKAD DESOM, KOPPAM AMSOM, PALAKKAD TALUK.** ## **ADDL.R3 TO 10 IMPLEADED:** - ****ADDL ROSILY, W/O.THOMAS, THARAKAN HOUSE,** - **R3 12TH STREET, MUSEUM CROSS ROAD, CHEMBUKKAVU, THRISSUR- 680020. (DIED. L.RS RECORDED)** - **R4 DAVIS, S/O.THOMAS, THARAKAN HOUSE, DO.DO.** - **R5 MERLY, D/O.THOMAS, DO. DO.** - **R6 JOY, S/O.THOMAS, DO.DO.** - **R7 USHA, D/O.THOMAS, DO. DO.** - **R8 LAWRENCE THOMAS, S/O.THOMAS, MAR THIMOTHIUSE NAGAR, NELLIKKUNNU, THRISSUR-680 005.** - **R9 SUNNY, S/O.THOMAS, DO. DO.** A.S.No.440 of 2000 2 **R10 TONY, S/O.THOMAS, DO. DO.** ***THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 TO 10 VIDE ORDER DT.4.7.13 IN I.A3091/11.** ****IT IS RECORDED THAT ADDL. R3 DIED AND THAT ADDL.R4 TO 10 WHO ARE ALREADY IN THE PARTY ARRAY ARE HER LEGAL HEIRS VIDE MEMO DT. 26.7.13, AS PER ORDER DT.2.3.16.** **ADDL.R5 BY ADV.SMT.A.PARVATHI MENON SMT.M.VANAJA SRI.GLEN ANTONY R2 BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SMT.C.R.SARADAMANI** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 22.01.2019, THE COURT ON 29.01.2019 DELIVERED THE FOLLOWING:** A.S.No.440 of 2000 3 ## **JUDGMENT** 2[nd] defendant in a suit for cancellation of Ext.A6 assignment deed, executed by the 1[st] defendant in favour of the 2[nd] defendant, and also for specific performance of Ext.A2 contract, executed between the plaintiff and 1[st] defendant, and for such other reliefs has come up in appeal. Trial court decreed the suit in its entirety. 2. Heard the learned counsel for the appellant and 1[st] respondent (plaintiff). 3. Short facts are as follows: Plaint schedule property belonged to the 1[st] defendant as per registered document No.15 of 1966 of Sub Registrar Office, Palakkad. Plaintiff was a tenant in a building situated in the property. Plaintiff agreed to purchase the plaint schedule property for a total consideration of `1,00,000/- and executed Ext.A2 contract for sale on 25.05.1993. As per the terms in Ext.A2, the sale has to be completed within two months from the date of contract. By express recitals in Ext.A2, the parties had made time essence of the contract. 4. According to the averments in the plaint, the plaintiff had approached the 1[st] defendant requesting him to convey the property as he had made arrangements for executing a conveyance. On one pretext or the other, the 1[st] defendant prolonged the matter. Although the plaintiff had gone to the Registrar's office on the date of expiry of time fixed in Ext.A2, the 1[st] defendant did not come to the Registrar's office or execute the A.S.No.440 of 2000 4 document. Later it was understood that on 15.07.1993, the 1[st] defendant had assigned the property in violation of the terms of Ext.A2 contract in favour of the 2[nd] defendant. It is the allegation that both the defendants collusively and with an intention to defraud the plaintiff executed Ext.A6 document. With these averments the suit is filed seeking cancellation of Ext.A6 and enforcement of Ext.A2 contract specifically against the 1[st] defendant. An alternative relief for return of advance money with a compensation of `25,000/- is also claimed in the plaint. 5. 1[st] defendant filed a written statement disputing the plaint claims. His title to the property traced in the plaint is admitted. 1[st] defendant admitted execution of Ext.A2 contract. However, he contended that the term of two months fixed in the contract was the outer limit and in fact the parties wanted to complete the transaction before that period. Since the 1[st] defendant traced his title through a Will, the plaintiff was apprehensive as the Will was not probated. Further more, he was having an opinion that the price fixed was slightly excessive. Therefore on 30.06.1993 the plaintiff approached the 1[st] defendant and informed him that instead of land he wanted compensation in terms of money. Plaintiff expressed his desire to get out of the contract. According to the 1[st] defendant, after the plaintiff extricated himself from the contract, he, with much effort, found out another buyer and sold the property for a lesser price. The contention in the plaint that the plaintiff waited for the 1[st] defendant in the Registrar's office is untrue. Plaintiff was not ready and A.S.No.440 of 2000 5 willing to perform his part of the contract. In fact he wanted to wriggle out of the contractual obligations. The criminal complaint filed by the plaintiff against the defendants, which was numbered as C.C.No.116 of 1995 before the Judicial First Class Magistrate Court-I, Thrissur has resulted in an acquittal. All the allegations in the plaint are untrue. The plaintiff is not entitled to get any relief. 6. 2[nd] defendant filed a written statement supporting the 1[st] defendant. According to him, he had no knowledge about Ext.A2 contract between the 1[st] defendant and the plaintiff at the time of Ext.A6 document. He is a bonafide purchaser of the property for value. Ext.A6 is not liable to be set aside. He is not a party to any fraud as alleged in the plaint. The suit is liable to be dismissed. 7. Court below framed necessary issues. After recording oral evidence of PW1 and DWs 1 to 3 and also relying on Exts.A1 to A6 and B1 to B6, the court below decreed the suit. 8. Learned counsel for the appellant contended that the decree passed by the court below cannot be legally justified on many counts. Firstly, it is contended that the court below did not apply the correct principles of law enshrined in Section 20 of the Specific Relief Act, 1963 (in short, “the Act”) as it stood before the Specific Relief (Amendment) Act, 2018. Admittedly the unamended provisions in Section 20 of the Act apply to this case. In terms of the phraseology in Section 20 of the Act before its amendment, the jurisdiction to decree specific performance was A.S.No.440 of 2000 6 discretionary and the court was not bound to grant such a relief merely because it was lawful to do so. It further stated that the discretion of the court should not be exercised arbitrarily and it should be sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. According to the learned counsel for the appellant, the court below failed to exercise its discretion properly, grossly overlooking the material facts. 9. In order to appreciate this contention, the following dates are to be borne-in-mind. Ext.A2 was executed between the plaintiff and 1[st] defendant on 25.05.1993. On a perusal of Ext.A2, it will be evident that time was the essence of the contract. At least at two parts of Ext.A2, it has been expressly stated that the outer limit for performance was fixed as two months. This has to be appreciated in the light of the contention of the 1[st] defendant raised in his written statement that the parties agreed to go through the transaction much prior to two months and it was the extreme period. 10. DW1 is the 1[st] defendant. When he was cross examined he deposed that within two months the contract could be performed was the representation made by the plaintiff. He has also deposed that within that time, the plaintiff realised that the amount agreed to between the parties for sale was excessive and he had no money to buy the property. Therefore, he met the 1[st] defendant at his home and expressed desire to get out of the contractual obligations. Although he was subjected to cross A.S.No.440 of 2000 7 examination, nothing worthwhile could be elicited. 11. DW3, Arthur Mosses, is a witness cited to establish that the plaintiff had met the 1[st] defendant and evinced an interest in terminating the contract. Even if we discard DW3's evidence as a little artificial, the testimony of DW1 corroborates his contention in the written statement. 12. In order to controvert this contention, the evidence of PW1, who is the son of the plaintiff, can be looked into. According to PW1, his father (plaintiff) was laid up due to some ailment. He denied the suggestion in the cross examination that the plaintiff had approached the 1[st] defendant and requested to free him from the contractual obligations. 13. In the light of the above oral evidence on this point, I shall examine the relevant dates again. Ext.A6 assignment deed by the 1[st] defendant in favour of the 2[nd] defendant was executed on 15.07.1993. It is the case that on 17.08.1993, defendants 1 and 2 together issued a joint notice to the plaintiff intimating the factum of execution of Ext.A6. Even then the plaintiff did not take any action to enforce Ext.A2 contract. The suit was filed only on 04.02.1995, ie., almost one year and nine months. As per the averments in the plaint and evidence, the plaintiff had come to know about Ext.A6 assignment deed on 27.07.1993 itself. Still there was no action taken by the plaintiff to enforce Ext.A2 contract. 14. In this context, learned counsel for the appellant relied on the decision in **Chand Rani v. Kamal Rani (AIR 1993 SC 1742)** to contend that by interpreting Section 55 of the Contract Act the Supreme Court had A.S.No.440 of 2000 8 held that though as a general proposition of law time is not the essence of contract in the case of a sale of immovable property, yet the parties can intend to make time as the essence of contract and the court is bound to reckon that aspect. My attention has been drawn to Ext.A2 wherein the parties have clearly expressed their intention to make time an essence of the contract. 1[st] defendant in his written statement has pleaded that he wanted to sell the property urgently and since the plaintiff wriggled out of the transaction, he had to sell the property to the 2[nd] defendant for a lesser price. 15. Learned counsel for the 1[st] respondent contended that the plaintiff had taken legal steps against the defendants by way of filing a criminal complaint for cheating and creation of fraudulent documents. It cannot be said that the plaintiff was inactive all the time, contended the learned counsel for the 1[st] respondent. However, the fact remains that no prompt attempt was made by the plaintiff to get Ext.A2 contract specifically enforced. 16. Yet another contention raised by the learned counsel for the 1[st] defendant is that the plaintiff had gone to the Registrar's office on the last date fixed for performance of the contract and to mark his presence, he had attested two documents as a witness. It is his case that the 1[st] defendant did not turn up as promised. Per contra, it is contended by the learned counsel for the appellant that much prior to Exts.A3 and A4, the plaintiff was informed that the 1[st] defendant had assigned the property to A.S.No.440 of 2000 9 the 2[nd] defendant and there was no occasion for the plaintiff to go to Registrar's office in anticipation of executing a sale deed on 24.07.1993. 17. Learned counsel for the appellant relying on a decision in **K.S.Vidyanadam and others v. Vairavan ((1997) 3 SCC 1)** contended that it has been consistently held by the courts in India following certain early English decisions that in the case of an agreement for sale relating to immovable property, time is not the essence of the contract unless specifically provided to that effect. It is also observed in the judgment that the court should look at all the relevant circumstances including the time limit specified in the contract and then only specific performance should be granted. It is therefore contended that the wanton negligence on the part of plaintiff makes him disentitled to claim an equitable relief. 18. Another circumstance pointed out by the learned counsel for the appellant is that PW1 in cross examination admitted that the advance money plus `25,000/- as compensation would recompense the plaintiff. It is therefore argued that the plaintiff was not serious about getting specific performance of the contract. This contention is stoutly denied by the learned counsel for the plaintiff. A stray sentence stated by PW1 shall not be culled out to contend that the plaintiff was not serious about specific performance of Ext.A2 is her submission. 19. Reliance was placed by the learned counsel for the appellant on the decision of this Court in **Bhaskaran Nair v. Habeeb Mohammed (2002 (1) KLT 864)** to argue that delay in filing the suit, non-enquiry A.S.No.440 of 2000 10 regarding the property that was sold and non-inspection of the same are all matters which will go to show that the plaintiff was not entitled to a specific performance. In this case it is contended that lethargy on the part of the plaintiff in spite of knowing that the property had been sold by the 1[st] defendant to the 2[nd] defendant shows lack of bonafides. 20. Supreme Court in **Saradamani Kandappan v. S.Rajalakshmi (AIR 2011 SC 3234)** , relying on **K.S.Vidyanadam** 's case held thus: _“(i) Courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and, therefore, time/period prescribed cannot be ignored._ _(ii) Courts will apply greater scrutiny and strictness when considering whether the purchaser was 'ready and willing' to perform his part of the contract._ _(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also 'frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.”_ 21. On a reappraisal of the facts and circumstances, I am of the A.S.No.440 of 2000 11 view that the trial Judge failed to apply the discretion vested in the court correctly and ignored time factor, which is an essential term of the contract, agreed to between the parties. It has come out in evidence that all the parties were fighting inter se over some issues. In the light of this evidence, it was highly immaterial for the plaintiff to remain quiet even after knowing that the property had been sold by the 1[st] defendant to the 2[nd] defendant. Therefore, lack of earnestness on the part of the plaintiff coupled with the unexplained delay in filing a suit for specific performance much after expiry of the stipulated time casts doubt on the bonafides of his claim. However, the fact remains that he had paid advance to the 1[st] defendant as described in Ext.A2. On an appreciation of evidence, I find that the plaintiff is not entitled to get specific performance of the contract and he is only entitled to get the advance money returned with interest. His claim for compensation to a tune of `25,000/- has also not properly established by adducing evidence. Therefore that claim is also disallowed. 22. There is no reliable material available on record to show that Ext.A6 document is the product of a fraud or collusion between defendants 1 and 2. Admittedly the 1[st] defendant was the title holder of the property and 2[nd] defendant purchased it for a valuable consideration. No evidence is traceable in the records to show that Ext.A6 is a fraudulent document. Therefore, the prayer to set aside the document is also not legally allowable. Court below wrongly granted a declaratory relief that Ext.A6 is null and void. Such a case has not been projected in the plaint by the A.S.No.440 of 2000 12 plaintiff. Further, even if a document was found to be vitiated by fraud, it can only be regarded as a voidable document and not a void document. Therefore the approach of the court below is incorrect. In the result, this appeal is partly allowed. The judgment and decree of the trial court declaring Ext.A6 as null and void is hereby set aside. Similarly the decree granting specific performance of Ext.A2 contract in favour of the plaintiff and against the 1[st] defendant is also set aside. Instead, the plaintiff is allowed to recover `55,000/- (Rupees fiftyfive thousand only), paid by him to the 1[st] defendant as advance towards the sale consideration, with 9% interest per annum from the date of transaction till the date of suit and also with 6% interest per annum after the date of decree. Plaintiff is also entitled to get proportionate costs from the appellant. All pending interlocutory applications will stand closed. ## **A.HARIPRASAD,** **Judge.** ## **cks** A.S.No.440 of 2000 13 ## **A.Hariprasad, J.** **A.S.No.440 of 2000** ## **JUDGMENT** **29[th] January, 2019**