Haridasanunni v. Subi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 RFA NO. 716 OF 2015 AGAINST THE JUDGMENT IN OS 13/2013 OF SUB COURT, ALAPPUZHA** **-----** ## **APPELLANT/DEFENDANT:** HARIDASANUNNI, AGED 66 YEARS, S/O.SANKARA KARTHAVU, NOW RESIDING AT SANKARA NIVAS (THEKKE VELIMBARAMADAM), CHARAMANGALAM MURI, MAYITHARA.P.O., KANJUKUZHI VILLAGE, ALAPPUZHA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SUNIL KUMAR A.G ## **RESPONDENT/PLAINTIFF:** SUBI, S/O.SUGATHAN AGED 27 YEARS SUMESH BHAVAN, CHARAMANGALAM MURI, MAYITHARA.P.O., KANJUKUZHI VILLAGE, ALAPPUZHA-688539. BY ADVS. SRI.ROY CHACKO SRI.P.S.GEORGE SRI.K.C.VINCENT THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RFA No.716 of 2015** **= = = = = = = = = = = = = = = = = = Dated this the 15[th] day of November, 2023** ## **J U D G M E N T** The decree for specific performance is under challenge by the defendant. 2. Ext.A1 agreement dated 23.07.2012 is sought to be specifically enforced. As per Ext.A1, an extent of 12.45 Ares of property belonging to the defendant was agreed to be conveyed to the plaintiff. The sale consideration fixed was ` 25,000/- per cent. On the date of agreement, an amount of ` 2 lakhs was paid towards advance sale consideration. The period fixed for performance was three months. Alleging failure on the part of the defendant to honour the agreement, the suit was filed. 3. The defendant admitted execution of Ext.A1 agreement and also the receipt of advance sale consideration. However, the defendant contended that the RFA No.716 of 2015 -: 2 :- plaintiff was not ready and willing to perform his part of the contract. Thus he prayed for dismissal of the suit. 4. The trial court held that, the defendant was at fault for the non-performance of the contract. It was also found that the plaintiff was ready and willing to perform his part of the contract. While granting the decree, the Court also noticed that time was not the essence of the agreement. 5. Heard learned counsel on either side. 6. The points for determination are:- _(i) Is the finding of the trial court that, the obligations cast on the defendant under Ext.A1 were required to be performed prior to the performance of obligations cast on the plaintiff, correct ?_ _(ii) Is the finding of the trial court that the plaintiff was ready and willing to perform his part of the contract, sustainable on materials?_ RFA No.716 of 2015 -: 3 :- _(iii) Is the discretion under Section 20 of the Specific_ _Relief Act to be exercised in favour of the plaintiff, to grant a decree for specific performance ?_ 7. When an agreement contains reciprocal obligations, and the performance of obligations of one side is dependent on the performance of the obligations of the other side, then, unless it is proved that the obligations to be performed prior in point of time are performed, the obligations of the other side are not required to be performed. Ext.A1 agreement provides that, within the period stipulated under the agreement, when the plaintiff on arranging the funds demands the defendant to execute the conveyance, at that time, the defendant is to convey the property on convincing the plaintiff regarding the extent of property and that it is encumbrance free. The relevant recital reads thus:- “Sn A-h-[n-¡p-Ånð Xo-dÀ-° _m-¡n cq-] scm-¡w X- ¿mÀ sN-bv-Xp sIm-ïp ]-«n-I-h-kv-Xp h-gn-b-h-Im-i-hpw Xo-sd-gp-Xn X-c-W-sa-óp Xm-¦Ä F-tóm-Sp B-h-iy-s¸-Sp RFA No.716 of 2015 -: 4 :- ó ka-bw ]«n-I h-kv-Xp-th kw-_-Ôn-¨p F-s´-¦nepw _m-²y-X-IÄ D-s-ïóp I-ïmð Bb-Xp F-sâ sN-ehnepw Np-a-X-e-bn-epw ]-cn-l-cn¨pw ]-«n-I-h-kv-Xp A-f-¸n¨p A-Xn-cp-Ifpw hn-kv-XoÀ-®hpw Xm¦-sf t_m-²y-s¸-Sp¯nbpw Xo-dÀ-° _m-¡n cq] scm-¡w ]-än-s¡mï-p ]-«nI-h-kv-Xp Xm-¦Ä-¡p Xo-sd-gp-Xn X-óp sIm-Åm-hp-ó” Xpw.... Therefore, the obligation of the defendant arises only when a demand is made by the plaintiff to the defendant after arranging the necessary funds seeking execution of the sale deed. 8. The learned counsel for the plaintiff would argue that, since the price fixed is on centage basis, the total sale consideration payable is to be ascertained on measurement of the property. Unless the extent is ascertained and total consideration fixed, the obligation of the defendant cannot arise, it is contended. 9. The contention of the plaintiff would generally stand to reason. But here, the recitals in Ext.A1 is RFA No.716 of 2015 -: 5 :- categoric with regard to the time of performance of the reciprocal obligations and admits of no ambiguity. The recital in Ext.A1 is specific that, the demand for performance after arranging necessary funds is to happen first in point of time whereupon the defendant is required to convince the plaintiff regarding extent and encumbrance free title. There is no ambiguity in the recital. There is no scope for any interpretation regarding the same. The finding of the trial court that the obligation of the plaintiff under Ext.A1 arises only after the performance of the obligation of the defendant is thus liable to be interfered with. Point No. _(i)_ is answered accordingly. 10. The period fixed for performance of Ext.A1 agreement expired on 23.10.2012. There is no evidence to show that, within the said period the plaintiff had made any demands to the defendant to perform Ext.A1. On the other hand, on 19.11.2012 the defendant issued Ext.A3 RFA No.716 of 2015 -: 6 :- notice to the plaintiff alleging failure on the part of the plaintiff to go ahead with Ext.A1 agreement. Ext.A3 notice required the plaintiff to appear before the S.R.O on 26.11.2012 for execution of sale deed. The plaintiff did not present himself before the S.R.O is compliance with Ext.A3. On the other hand, he sent Ext.A4 reply dated 30.11.2012 stating that, the plaintiff could not appear before the SRO on 26.11.2012 since Ext.A3 notice was not received in time. The relevant statement in Ext.A4 reply reads thus:- “Xm-¦-fp-sS t\m-«o-kv b-Ym-ka-bw F-sâ I-£n-¡v e-`n¡m-sX h-ó-Xp-aq-e-am-Wv t\m-«o-knð B-h-iy-s¸-«n-«pÅXp {]-Im-cw 26.11.12 ð F-sâ I-£n-¡v ]p-¯-\-¼-ew SRO bnð lm-P-cm-Im³ I-gn-bm-sX h-óXv. C-Xnð F-sâ I- £n-bp-sS a-\x-]qÀ-Æam-b ho-gv-N-tbm D-t]-£tbm Cñ.” However when the plaintiff was examined as PW1, in his cross-examination he has categorically admitted that Ext.A3 notice was received by him on 22.11.2012. His RFA No.716 of 2015 -: 7 :- deposition reads thus:- “I-cmÀ {]-Im-cw {]-hÀ-¯n-¡m³ X-¿m-dm-sW-óv Im-Wn-¨v {]-Xn t\m-«o-kv A-b-¨n-cp-ó-Xv 22.11.2012 \v ssI-]än.” Therefore evidently, the reason stated by the plaintiff in Ext.A4 notice for his non-appearance before the S.R.O, is not correct. The contradictions does not end there. At paragraph 5 of the plaint, the plaintiff has pleaded that he did not appear before the SRO on 26.11.2012 pursuant to the notice since, the defendant had failed to convince the plaintiff about the extent and absence of encumbrance over the property. The relevant plaint averment reads thus:- “h-kv-Xp A-f-¸n-¨v hn-kv-XoÀ-®w Xn-«-s¸-Sp-¯m-Xn-cpóXn\m-epw _m-²y-Xm-kÀ-«n-^n-¡-äv hm-§n Gð-¸n-¡m-Xncp-óXn-\mepw Xo-dm-[m-cw F-gp-Xn-]n-Sn-¡p-ó-Xn-\v B-Im-cW-¯mð km-²y-añm-¯-Xn-\m-epw 26.11.2012 ð hm-Zn c-PnÌÀ I-t¨-cn-bnð sN-ón-«nñm-¯Xpw B-Ipóp.” RFA No.716 of 2015 -: 8 :- 11. The contentions of the plaintiff are thus contradictory. The defendant has produced Ext.B3 copy of a Sale Deed registered at the S.R.O on 26.11.2012 to prove that pursuant to Ext.A3 notice he was present at the SRO. 12. While it is true that the financial capacity of the plaintiff to pay the balance sale consideration is not disputed by the defendant, it is solely within the personal knowledge of the plaintiff as to why he failed to get the sale deed executed in response to Ext.A3 notice. This is of significance in the background of the contradictory stand of the plaintiff noted above. The suit is filed on 11.01.2013. The conduct of the plaintiff as above tells upon his continued readiness and willingness to perform Ext.A1. 13. Even though time is not considered to be the essence in respect of an agreement for sale of immovable property, in the case at hand, the conduct of the RFA No.716 of 2015 -: 9 :- plaintiff as noticed above would indicate that the plaintiff was not ready and willing throughout, to perform Ext.A1. Section 16(c) of the Specific Relief Act mandates the plaintiff to prove his continued readiness and willingness from the date of execution of the agreement till the date of suit _**(** See_ _**Jagit Singh v. Amarjit Singh 2018 (9) SCC 805, Jugraj Singh v. Labh Singh, AIR 1995 SC 945)**_ . The evidence on record indicates that the plaintiff has failed to prove his continued readiness and willingness since the execution of Ext.A1 till the date of filing of the suit. 14. Though the defendant has a contention that the property was measured and the non-encumbrance certificate was handed over to the plaintiff within the period stipulated in the agreement, there is no evidence to prove the same. As noticed by the trial court, the evidence of DW2 to prove the measurement of the property does not inspire confidence. However, that by itself is RFA No.716 of 2015 -: 10 :- not a ground entitling the plaintiff to secure a decree for specific performance. As held above, there was absence of continued readiness and willingness on the part of the plaintiff to perform Ext.A1. The trial court has failed to consider the above aspect. The decree and judgment of the trial court is liable to be interfered with. 15. The plaint contains an alternate relief for return of the advance consideration with interest at the rate of 12% per annum. Though the defendant has pleaded that he had suffered loss consequent to the breach of the agreement by the plaintiff, there is no evidence in the said regard. Therefore, the defendant is bound to return the advance amount received by him with interest. Considering the rate of interest prevailing in banking transactions at the relevant period, I am of the opinion that grant of interest at the rate of 12% per annum till date of suit and thereafter at 9% per annum till RFA No.716 of 2015 -: 11 :- realisation, would be just and proper. Resultantly, the appeal is allowed. The decree and judgment of the trial court is set aside. The plaintiff is granted a decree for recovery of ` 2 lakhs with interest at the rate of 12% per annum from 23.07.2012 (date of agreement) till date of suit (11.01.2013) and thereafter at 9% per annum till realisation, as a charge on the plaint schedule property and also from the defendant and his assets. The plaintiff shall be entitled for proportionate costs throughout. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge