Frederick Paul Manohar v. Mohanan and Shinan E.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **OP(C).NO. 1618 OF 2016 (O) ---------------------------** ## **PETITIONER(S): -------------** **FREDERICK PAUL MANOHAR, AGED 64 YEARS, S/O GABRIYAL, PANAKKAL HOUSE, PALLIPPURAM VILLAGE, PALLIPPURAM P.O, ERNAKULAM DISTRICT.** **BY ADVS.SRI.C.P.PEETHAMBARAN SMT.MINI.V.A.** ## **RESPONDENT(S):** **--------------** ## **1. MOHANAN,** **S/O NARAYANAN, AGED 56 YEARS, VARISHERY HOUSE, PALLIPPURAM VILLAGE, CHERAI MURI, KOCHI TALUK, ERNAKULAM DISTRICT PIN 682 510.** ## **2. SHINAN. E.K,** **AGED 41 YEARS, S/O KUMARAN, ERANDATHARA HOUSE, NAYARAMBALAM P.O, NAYARAMBALAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT 682 509.** **R1,R2 BY ADV. SRI.K.R.VINOD R1,R2 BY ADV. SMT.M.S.LETHA R1,R2 BY ADV. MS.JENCY SUSAN JOSE R1,R2 BY ADV. SRI.V.SRI NATH** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.08.2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).NO. 1618 OF 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS: -----------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO 453/2011 OF SUB COURT, NORTH PARAVUR. EXHIBIT P2 TRUE COPY OF THE AWARD DATED 14-07-2012 OF LOK ADALAT IN O.S NO 453/2011 OF SUB COURT, NORTH PARAVUR. EXHIBIT P3 TRUE COPY OF THE I.A NO 835/2014 IN O.S NO 453/2011 OF SUB COURT, NORTH PARAVUR. EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A NO 835/2014 IN O.S NO 453/2011 OF SUB COURT, NORTH PARAVUR. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 06-06-2016 IN I.A NO 835/2014 IN O.S NO 453/2011 OF SUB COURT, NORTH PARAVUR.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** ## **vsv** ## **K.RAMAKRISHNAN, J.** **= = = = = = = = = = = = = = = = =** **O.P(C) No.1618 of 2016** **- - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of August, 2016** ## **J U D G M E N T** Petitioner filed this petition challenging Ext.P5 order dated 06.06.2016 in I.A. No.835 of 2014 in O.S. No.453 of 2011 on the file of the Sub Court, North Paravur, under Article 227 of the Constitution of India. 2. It is alleged in the petition that the respondents herein filed Ext.P1 suit as O.S. No.453 of 2011 for return of advance amount of Rs.10,70,800/- which was paid pursuant to an agreement to sell entered into between the parties. The matter was settled in the Adalath and Ext.P2 award was passed incorporating the agreement entered into between the parties as terms of settlement. The case was disposed of on the basis of the agreement entered into between the parties. **O.P(C) No.1618 of 2016** ## **-: 2 :-** As per the settlement, the petitioner has agreed to sell his property for an amount fixed between the parties within the time stipulated therein, namely, 23.07.2012 and an amount of Rs.12,55,000/- was paid and also another amount of Rs.5,50,000/- was paid for the purpose of discharging the liability of the petitioner with the bank and he will have to pay the amount to the Bank, get back the documents and hand over the same to the respondents. It is also agreed that on payment of another sum of Rs.8,45,000/- on or before 23.07.2013, the petitioner has to execute the document. It is further mentioned in the agreement that if the petitioner committed default in executing the document within the time, the respondents are at liberty to move the court for getting the document executed. Since the petitioner **O.P(C) No.1618 of 2016** ## **-: 3 :-** did not execute the document as directed, the respondents filed Ext.P3 petition under Section 28 (3) of the Specific Relief Act (for short, “the Act”) depositing the balance amount before the court and directed the petitioner to execute the document. 3. Petitioner filed a detailed counter as Ext.P4 stating that time is the essence of the contract and originally it was a money claim which was subsequently converted into a specific performance decree and as such since the respondents have not paid the amount in time, they are not entitled to get the document executed. The petitioner has also denied the receipt of Rs.5,50,000/- later paid and prayed for dismissal of the application. After hearing both sides, the **O.P(C) No.1618 of 2016** **-: 4 :-** court below passed Ext.P5 order, which is under challenge. 4. Heard Shri C.P.Peethambaran, learned counsel appearing for the petitioner and Shri K.R. Vinod, learned counsel appearing for the respondents. 5. Learned counsel appearing for the petitioner submitted that time fixed as per Ext.P2 has expired in July, 2012 and no attempt was made on the part of the respondents to get the time extended and unless time is extended by the court, the respondents are not entitled to get the document executed invoking Section 28(1) of the Act. It is also contended that none of the objections raised by the petitioner before the court below was considered by the court below. He has relied on the **O.P(C) No.1618 of 2016** ## **-: 5 :-** decision reported in **Chandran v. Mustaffa** (2011 [3] KLT 245) in support of his contentions. 6. On the other hand, learned counsel for the respondents submitted that there is no default clause in clause Ext.P2 and as such since respondents were going after the petitioner with the money for getting the document executed and since he was not amenable for the same, they filed the petition and the court below was perfectly justified in passing the impugned order. 7. It is an admitted fact that Ext.P1 suit was filed by the respondents originally for return of advance amount of Rs.10,70,800/- on the basis of the agreement to sell entered into between the petitioner and respondents in respect of the property belonging to the petitioner. Since the **O.P(C) No.1618 of 2016** **-: 6 :-** petitioner did not execute the document as agreed, they had filed the suit for return of advance with a charge on the property agreed to be sold. It is also an admitted fact that the matter was referred to Adalath, the same was settled between the parties and on the basis of the settlement entered into between the parties, Ext.P2 award was passed converting the suit for return of advance amount to specific performance of the agreement whereby the petitioner had agreed to sell his property after adjusting the amount already paid including the amount of Rs.5,50,000/- paid for discharging the liability of the petitioner with the bank and agreed to convey the property on payment of the balance sale consideration of Rs.8,45,000/- on or before 23.07.2012. It is also mentioned in the agreement **O.P(C) No.1618 of 2016** ## **-: 7 :-** that if the petitioner did not execute the document then the respondents are at liberty to move the court for getting the document executed. There is no default clause provided in the agreement. So if the petitioner did not execute the document after receiving the balance consideration fixed as per the settlement, respondents are at liberty to move the court for execution of the document. Further, though two years' time has lapsed the petitioner has not moved the court for recission of the contract. Section 28(1) of the Act says that even if in a case where recission of contract has been filed by the parties, the court has got discretion to extend time for the purchaser or the vendor to pay the amount within the time stipulated by the court and extend the time and direct the document to be executed if **O.P(C) No.1618 of 2016** **-: 8 :-** payment is made within the extended time. 8. Further, the dictum laid down in **Chandran v. Mustaffa** (supra) is not applicable to the facts of this case as there is no default clause provided in the agreement. In that case, there was a default clause whereby it was mentioned that if the plaintiff did not pay the amount, then he is not entitled to get specific performance but only entitled to get return of the advance amount and but nothing more. In such circumstances, when an alternative decree has been provided in the decree itself, this Court has held that the court cannot extend the time for payment of the amount for executing the document and remedy of the plaintiff in that case was to satisfy with the advance amount and nothing more. There was no such condition **O.P(C) No.1618 of 2016** ## **-: 9 :-** provided in Ext.P2 award. 9. However, I am not venturing into go into the merits of the case much especially when the court below has passed a non-speaking order. Exhibit P5 order reads as follows: “Copy of draft sale deed furnished and endorsement filed. Draft sale deed verified. Hence approved. Produce fair deed. Call on 05.07.2016.” 10. In Ext.P3 application a detailed counter affidavit, Ext.P4 has been filed by the petitioner herein stating that the respondents are not entitled to get the document executed. Then it is for the court to consider the objection and passe a reasoned order before directing the document to be executed by the party. That has not been done in this case. In such circumstances, this Court feels that it is necessary in the interest of justice to **O.P(C) No.1618 of 2016** ## **-: 10 :-** set side Ext.P5 order and remit the case for a fresh consideration and pass appropriate orders on the basis of the objections raised by the petitioner. Considering the fact that huge amount has been parted with by the respondents and the petitioner has not chosen to file any application for recission of the contract, the court below is directed to consider and pass appropriate orders in the application as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. In the result, the petition is disposed of as follows: Exhibit P5 order passed by the court below is set aside and the matter is remitted to the court below for fresh disposal after considering the **O.P(C) No.1618 of 2016** ## **-: 11 :-** objection raised by the petitioner and appropriate orders shall be passed in the application as expeditiously as possible, at any rate within two weeks from the date of receipt of a copy of this judgment. Registry is directed to communicate a copy of this judgment to the court below immediately. ## **I.A. No.1107 of 2016** Since the O.P itself has been disposed of, this petition dismissed as unnecessary. **K.RAMAKRISHNAN, JUDGE.** VSV