E.A. Varghese and others v. Easwaran Namboothiri and Jisso Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 RFA NO. 762 OF 2009** **AGAINST THE JUDGMENT AND DECREE DATED 30.07.2009 IN OS** ## **128/2007 OF SUB COURT, MUVATTUPUZHA** ## **APPELLANTS/PLAINTIFFS** - **1 E.A.VARGHESE, S/O.ABRAHAM, AGED 58 YEARS, EARAT PERUMPADANNA MURI, PARAVOOR VILLAGE.** - **2 K.K.JOLLY, S/O.XAVIER, AGED 57 YEARS, KALIPARAMBIL, CHELLANAM MURI, KOCHI TALUK.** - ***3 PAULOSE, S/O.THOMAS, (DIED: LRS IMPLEADED) AGED 58 YEARS, VALLAPPARAMBATHU, PARAVOOTHARA MURI, PARAVOOR VILLAGE.** - **4 KUMARI PHILIPOSE, W/O LATE PAULOSE, VALLAPARAMBATH PARAVOOTHARA MURI, PARAVUR VILLAGE** - **5 SONU MARIAM PAULOSE, D/O LATE PAULOSE, VALLAPARAMBATH PARAVOOTHARA MURI, PARAVUR VILLAGE** **(*LEGAL REPRESENTATIVES OF THE DECEASED 3RD APPELLANT ARE IMPLEADED AS ADDL. A4 AND A5 VIDE ORDER DATED 16.06.2020 IN IA.1/2019)** **BY ADVS. SRI.P.M.POULOSE K.NARAYANAN (PARUR)** ## **R.F.A.No.762 of 2009** -2- ## **RESPONDENTS/DEFENDANTS** - **1 EASWARAN NAMBOOTHIRI, AGED ABOUT 54 YEARS, S/O.NEDUMPILLI MADATHIL PERIYAMANA SAMBU NAMBOOTHIRI, RESIDING AT KUZHUPPILLI PUTHEN MADOM,NEERKUZHI KARA, MANEED VILLAGE,(PRESENT ADDRESS:EASWARAN NAMBOOTHIRI,PERIYAMANA, NEAR A.U.P.SCHOOL,KAVALAPPARA, KAVALAPARA P.O., SHORNUR, PALAKKAD, HOUSE NO.14/2B4 A)** - **2 JISSO ABRAHAM, S/O.ABRAHAM, AGED 33 YEARS, PARKKASSERIYIL, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK.** ## **BY ADV SRI.BIJU ABRAHAM FOR R1** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **R.F.A.No.762 of 2009** -3- ## **P.B. SURESH KUMAR & C.S. SUDHA, JJ.** ## **----------------------------------------------R.F.A.No.762 of 2009** **----------------------------------------------Dated this the 16[th] day of February, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This appeal is against the judgment and decree dated 30.07.2009 in O.S.No.128/2007 on the file of the Subordinate Judge’s Court, Muvattupuzha. The suit is one for specific performance. The appellants herein are the plaintiffs and the respondents, the defendants, before the court below. The suit was dismissed by the impugned judgment. The parties in this appeal will be referred to as described in the suit. 2. The suit was filed by the plaintiffs seeking specific performance of the contract relating to the plaint schedule property or in the alternative for return of advance money. The case in brief – On 15.12.2006 an agreement was executed between the plaintiffs and the first defendant by which the latter agreed to sell the plaint schedule property for a total sale consideration of `48,50,000/-. The first defendant convinced the plaintiffs that he is the absolute owner of the property. **R.F.A.No.762 of 2009** Advance amount of `20 lakhs, i.e., `5 lakhs on the date of agreement and `15 lakhs on 12.03.2007 was paid by the plaintiffs. The balance sale consideration of `28,50,000/- was agreed to be paid on or before 15.06.2007. As per the contract, the first defendant had to hand over the original title deeds, the encumbrance certificate for 15 years, tax receipts and also to measure out the property before the expiry of the agreement period. The plaintiffs were always ready and willing to perform their part of the contract and they had in fact approached the first defendant several times also. But the first defendant failed to execute his part of the agreement of handing over the original documents and to measure out the property. The period of agreement expired on 15.06.2007. On 02.07.2007, the plaintiffs received a lawyer notice from the first defendant informing them that the contract had been rescinded. The first defendant has no right to unilaterally rescind the contract. After the execution of the agreement, the plaintiffs, on enquiry, came to know that one of the sisters of first defendant, namely, Gowri Antharjanam, has a fractional right/interest in the property. So, they requested that the first defendant, either to get a release deed from his sister or to execute a sale deed excluding her fractional interest in the property. A reply notice was also sent stating these facts. However, the first defendant, in order to make undue benefit for himself, sold the property to the second ## **R.F.A.No.762 of 2009** -5- defendant, who was well aware of the agreement between the parties and so the second defendant cannot be termed as a _bona fide_ purchaser as claimed by him. Hence, the suit. 3. The first defendant filed written statement contending that the plaintiffs were never ready and willing to perform their part of the contract. The first defendant, on the other hand, was always ready and willing to perform his part of the contract. The plaintiffs did not have the necessary funds with them and hence the reason why they were not ready to take the sale of the property. The first defendant had decided to sell the plaint schedule property to the plaintiffs as he wanted to buy a property in Shornur. Since the plaintiffs failed to perform their part of the contract and take sale of the property within the period stipulated, the first defendant was compelled to sell the property to the second defendant for a lesser price and hence he has sustained considerable loss. The advance amount paid by the plaintiffs is therefore liable to be forfeited towards the loss suffered by him. The first defendant also denied the allegation of the plaintiffs that Gowri Antharjanam, has a fractional interest in the property. According to the first defendant, Gowri Antharjanam is not his sister and that such a person has no interest or share in the property as alleged by the plaintiffs. 4. The second defendant filed written statement contending that he ## **R.F.A.No.762 of 2009** -6- is a _bona fide_ purchaser of the property from the first defendant. 5. On the side of the plaintiffs, PWs 1 and 2 were examined and Exts.A1 to A8 were marked. On the side of the defendants, DWs1 and 2 were examined and Exts.B1 to B11 were marked. 6. The court below, on a consideration of the oral and documentary evidence and after hearing the parties, rejected the prayer for specific performance and decreed the suit by which the first defendant was ordered to return the advance money received from the plaintiffs. Aggrieved, the plaintiffs have come up in appeal. 7. In the appeal memorandum it is alleged that the impugned judgment is against facts, law and on a wrong appreciation of the evidence and so is liable to be set aside. 8. Heard Shri.P.M.Poulose, the learned counsel for the appellants and Shri.Biju Abraham, the learned counsel for the respondents. 9. The only point that arises for consideration is whether the plaintiffs have averred and proved that they were always ready and willing to perform the essential terms of Ext.A1 contract, that is, the terms which were to be performed by them. 10. The suit is of the year 2007, that is, before the amendment dated 01.10.2018 to Sections 16 and 20 of the Specific Relief Act, 1963 (the Act). ## **R.F.A.No.762 of 2009** -7- Section 20 of the Act which confers discretion on the court to refuse a decree for specific performance even in cases where it is lawful for the court to do so, has now been substituted and the courts have no longer any discretion to refuse a decree for specific performance. The Apex Court in **Sughar Singh v. Hari Singh, 2021 SCC OnLine SC 975** , has held that though the amended provisions do not have retrospective effect, the same shall be a guide for the court in the matter of exercising the discretion under Section 20. ## 11. Section 16 of the Act before the amendment reads: - _**“16. Personal bars to relief.** —Specific performance of a contract cannot be enforced in favour of a person—_ _(a) who would not be entitled to recover compensation for its breach; or_ _(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or_ _(c) who fails to aver and_ _**prove** that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant._ _Explanation. —For the purposes of clause (c), —_ ## **R.F.A.No.762 of 2009** -8- _(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;_ _(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” (Emphasis supplied)_ 12. Here the case in the plaint is that the plaintiffs were always ready and willing to perform their part of the contract and it was due to the failure of the first defendant to hand over the original documents and to measure out the property, the contract had failed. However, this allegation can be seen to be incorrect and false from the plaintiffs’ own pleadings in the plaint as well as in Ext.A3 reply notice dated 3.08.2007. Admittedly, the last date for performance of the contract was 15.06.2007. Till then, no steps are seen taken by the plaintiffs. On the other hand, on 02.7.2007 the first defendant sent Ext.A2 lawyer notice intimating the plaintiffs of the rescission of the contract. The plaintiffs have no case that they had not received Ext.A2 lawyer notice. There was no response from the plaintiffs to Ext.A2 notice till 15.06.2007, the last date for the performance of the contract. So, the first defendant contends, that he on 30.07.2007 sold the plaint schedule property to the second defendant as per Ext.A4 sale deed. ## **R.F.A.No.762 of 2009** -9- The plaintiffs then sent Ext.A3 reply notice dated 03.08.2007, apparently after the execution of Ext.A4 sale deed. In Ext.A3 reply notice, the plaintiffs have no case that the original documents had not been handed over or that the property had not been measured. However, the case taken up in the reply notice is that after the execution of Ext.A1 agreement dated 15.12.2006, their enquiries revealed that Gowri Antharjanam, one of the sisters of the first defendant, also has a fractional interest/share in the property. This contention has been taken up by the plaintiffs apparently after the execution of Ext.B1 sale deed by the said Gowri Antharjanam claiming a fractional interest in the property in favour of the wife of the first plaintiff. Ext.B1 sale deed is dated 30.07.2007, i.e., the same day on which the first defendant had sold the plaint schedule property to the second defendant by way of Ext.A4 sale deed. However, concealing this fact, the plaintiffs are seen to have sent Ext.A3 reply notice demanding the sale of the entire plaint schedule property from the first defendant. Even in the suit the relief sought for is relating to the entire plaint schedule property and not excluding the so called fractional right or interest that Gowri Antharjanam is stated to have in the property. 13. The materials on record make it quite clear that the plaintiffs were not ready and willing to perform their part of the contract as alleged by ## **R.F.A.No.762 of 2009** -10- them. It is apparent that it was not due to the failure on the part of the first defendant to hand over the original documents or to measure the property, the sale had not taken place. The plaintiffs assert that Gowri Antharjanam has a right in the property which is disputed by the first defendant. In fact, a suit for partition filed by the wife of the first plaintiff based on Ext.B1 sale deed for partition has been dismissed. It appears that no appeal has been filed against the said judgment and decree, which is dated 09.1.2009, that is, against Ext.B10 judgment. Ext.B10 judgment has therefore become final. It appears that the plaintiffs kept insisting and demanding the first defendant to prove his absolute title over their entire plaint schedule property or to get a release deed from Gowri Antharjanam or to assign the plaint schedule property excluding the share of Gowri Antharjanam for a lesser price. The first defendant apparently did not agree to this request as his definite stand all throughout is that he is the absolute owner of the property and that nobody apart from him has any right in the property. Therefore, the readiness and willingness if at all expressed by the plaintiffs seems to have been a conditional one. This is apparently not in accordance with Section 16(c), as per which the plaintiffs have to prove that they were always ready and willing to perform the essential terms of the contract which are to be performed by them. ## **R.F.A.No.762 of 2009** -11- 14. Further, the conduct of the plaintiffs before and after the suit also needs to be taken into account since the relief sought is an equitable remedy. The plaintiffs never took any action till the expiry of the period of agreement though they claimed that they were always ready and willing to perform their part of the contract. In fact, a step if at all taken by the plaintiffs in the matter, was only after they received Ext.A2 lawyer notice from the first defendant, to which they responded only on 03.8.2007, that is, much after the expiry of the agreement period. Even before sending Ext.A3 reply, they had purchased the so called fractional right of Gowri Antharjanam in the plaint schedule property. However, they concealed that fact and even in their reply notice they demand the first defendant to establish his absolute title and interest in the property. In the plaint also there is absolutely no mention of Ext.B1 sale deed. The relief sought against the first defendant in the suit is for specific performance of the entire plaint schedule property and not excluding the fractional interest the plaintiffs are supposed to have purchased by way of Ext.B1 document. In the plaint they assert that they were always ready and willing to perform their part of the contract and it was the first defendant who committed a breach of the contract as he was not ready to convince the plaintiffs of his absolute title and interest in the property. A person who seeks equity must also do equity. ## **R.F.A.No.762 of 2009** -12- The plaintiffs have filed the suit suppressing true and real facts from the court also. The evidence on record makes it evident that the plaintiffs were not ready and willing to perform their part of the contract. 15. The defendants have also taken up a contention that the plaintiffs were not ready to perform their part of the contract because they did not have the necessary resources with them. The court below has found this case of the first defendant also to be true as the plaintiffs failed to establish that they had the necessary resources with them at the point of time to execute the sale deed. We find no infirmity in the findings of the court below calling for an interference by this Court. In the result, the appeal is found to be without any merits and hence the same is dismissed with costs. Interlocutory Applications, if any, pending shall stand disposed of. Sd/- ## **P.B. SURESH KUMAR, JUDGE.** Sd/- ## s- **C.S. SUDHA, JUDGE.** STK