Herman D'Souza v. Pradeep Paul Chirayath and Sahadev Chirayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939 R.F.A.No.239 of 2003 ----------------------- AGAINST THE JUDGMENT AND DECREE IN O.S.NO.202 OF 1995 OF PRINCIPAL SUB COURT,ERNAKULAM DATED 22-02-2003 APPELLANT/PLAINTIFF: ------------------- HERMAN D'SOUZA, AGED 42, SON OF ROBERT D'SOUZA, NOW RESIDING AT HIS FATHER'S HOUSE, COCHIN - 18. BY ADV. SRI.M.RAMESH CHANDER ADV. SMT.SANJEETHA K.A. RESPONDENTS/ADDL. DEFENDANTS 2 AND 3: ----------------------------------- 1. PRADEEP, PAUL CHIRAYATH, 22.29 N. FRENCH ROAD, A.P.T.2, GE HZ VILLA N.Y 14068 - 1155 ORIGINALLY STAYING AT ARANGATH ROAD, ERNAKULAM. 2. SAHADEV CHIRAYATH, DO. DO. DO. R1 & R2 BY ADV. SRI.M.V.JOHN ADV. SRI.RENJU JOHN ADV. SRI.B.JAYAPARAKASH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 6.12.2017, THE COURT ON 11.12.2017 DELIVERED THE FOLLOWING: “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## R.F.A.No.239 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of December, 2017 ## Judgment ## Chitambaresh, J. - 1.The genesis for this litigation is an agreement entered into between two Indians at New York in the United States of America in respect of a property situated at Arangath Road in Ernakulam of Kerala State. - 2.The plaintiff offered to buy about 10 cents of land with buildings thereon situated at Ernakulam which belonged to the first defendant at a rate of `1,00,000/- per cent while both of them were in New York. The terms are embodied in Ext.A2 agreement followed by Ext.A3 letter and a sum of $3100 (100+1000+2000) was concededly received by the first defendant as advance. The first defendant was RFA239/2003 -: 2 :- hesitant to honour the agreement obviously due to the inadequacy of price which prompted the plaintiff to make a higher offer towards purchase price. The plaintiff floated a fresh offer to the first defendant at the rate of `1,75,000/- per cent for the property which was not acceded to by the first defendant. The first defendant thereafter rescinded the contract and returned the sum of $3100 received as advance by a cheque which was not encashed by the plaintiff. The court below declined specific performance and granted a decree for return of the amount paid as advance also creating a charge on the property covered by Ext.A2 agreement. The first defendant died pending suit and defendants 2 and 3 being his legal heirs have been made liable to the extent of the property inherited by them. The plaintiff has impugned the decree of the court below contending inter alia that a fresh offer more beneficial to the other contracting party does not efface the original terms of the agreement. RFA239/2003 -: 3 :- 3.We heard Mrs. K.A.Sanjeetha, Advocate on behalf of the appellant/plaintiff and Mr. Renju John, Advocate on behalf of the respondents/defendants 2 and 3. 4.The relevant clause in Ext.A2 agreement is extracted below: “The purchase price of Indian rupees one lakh per cent based on the actual measurement of your property at Arangathu Road. This measurement will be done by an independent surveyor whose expense will be met equally by the seller & buyer. I will get the measurement done once we sign this contract & after you give me the authorization to do the measurement whose copy is enclosed. This measurement will be used on all registration & documentation.” The first defendant has not only subscribed his signature thereto but has also acknowledged the execution of Ext.A2 RFA239/2003 -: 4 :- agreement regarding the sale of his property in Ext.A3 letter addressed to the plaintiff. It is discernible from Ext.A2 agreement coupled with Ext.A3 letter that the purchase price fixed was at the rate of `1,00,000/- per cent of the property based on actual measurement. - 5.It transpires from evidence that the first defendant was not willing to honour Ext.A2 agreement as he felt that the price fixed was inadequate resulting in the plaintiff making a fresh offer at an enhanced rate. The relevant part of Ext.B1 letter issued by the plaintiff is extracted below: “I have raised my purchase price from Rupees one lakh per cent to Rupees one lakh seventy five thousand per cent. The revised offer is the final offer after which no matter what the market conditions are 'the price will remain the same of Rupees one lakh seventy five thousand per cent'. This price is final & irrespective of the date of RFA239/2003 -: 5 :- closing, the price will remain the same i.e. Rupees one lakh seventy five thousand/cent.” Thus the purchase price offered has been enhanced from Rupees one lakh per cent to Rupees one lakh seventy five thousand per cent of the property to which of course the first defendant has not acceded. 6.The plaintiff by floating a fresh offer at an enhanced rate has practically given up his original offer embodied in Ext.A2 agreement and has waived his right to stick on to the original terms agreed upon. The conduct of the plaintiff in issuing Ext.B1 letter to the first defendant offering a higher price for the property is certainly at variance with the follow up action intended on Ext.A2 agreement. Such conduct and circumstance could be put forward as a successful defence in a suit for specific performance [See: Ayissabi v. Gopala Konar (1988 (2) KLT 282)]. The plaintiff will be entitled to RFA239/2003 -: 6 :- specific performance of Ext.A2 agreement only if he sticks on to its terms throughout as is enjoined under Section 16(c) of the Specific Relief Act, 1963. The fact that the plaintiff has floated an offer which is more beneficial to the first defendant and that it is not in derogation of the terms originally agreed is of no avail. 7.The first defendant by Ext.B4 letter sent a cheque for $3100 to the plaintiff towards repayment of the amount received as advance soon after the filing of the suit which however was not encashed concededly. The court below was therefore justified in granting a decree for return of the sum of $3100 subject to the exchange rate as on the date of the suit with interest thereon. Interest has been levied at the rate of 12% per annum from the date of the suit till the date of the decree by the court below and thereafter at the rate of 6% per annum till realization. A charge has also been created for the amount on the property devolved on additional RFA239/2003 -: 7 :- defendants 2 and 3 in the suit under Section 55(6)(b) of the Transfer of Property Act, 1882. We are satisfied that the discretion exercised by the court below under Section 20 of the Specific Relief Act, 1963 in moulding the decree as aforestated does not warrant correction in appeal. The Regular First Appeal is dismissed. No costs. V. CHITAMBARESH, JUDGE SATHISH NINAN, JUDGE Sha/061217