James S/o George v. Reji and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** **RFA NO. 911 OF 2012 (H)** **AGAINST THE JUDGMENT AND DECREE IN OS 27/2008 OF SUB** ## **COURT, SULTHANBATHERY** ## **APPELLANT IN R.F.A/PLAINTIFF IN SUIT:** **JAMES S/O.GEORGE, RESIDING AT KAITHACKAL HOUSE, VETTAMPARAKARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.A.C.THOMAS ADHIKARAM** ## **RESPONDENTS IN R.F.A/DEFENDANTS IN SUIT:** - **1 REJI, S/O.POULOSE, RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** - **2 SAJI, S/O.POULOSE, RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** - **3 JISHA, W/O.SAJI,RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** - **4 LIJI, W/O.REJI,RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** - **5 ALIYAMMA, W/O.LATE POULOSE, RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** RFA No.911 of 2012 - -: 2 :- - **6 SOLLY, D/O.POULOSE, RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** - **7 JOLLY, D/O.POULOSE, RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** - **8 DOLLY, D/O.POULOSE, RESIDING AT OLAPPURACKAL HOUSE, KUPPADY DESOM, SULTHAN BATHERY TALUK, PIN-673 592.** **BY ADV SRI.MATHEW KURIAKOSE** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA No.911 of 2012 -: 3 :- **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.F.A. No.911 of 2012** **----------------------------------------------Dated this the 7[th] day of February, 2022** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The defeated plaintiff in a suit for specific performance of an agreement for sale is the appellant in the appeal. 2. The plaint schedule property comprises of five items belonged to one Poulose and defendants 1 to 4. Among defendants 1 to 4, defendants 1 and 2 are the sons of Poulose and defendants 3 and 4 are the daughters-in-law of Poulose. On 13.11.2006, Poulose and defendants 1 to 4 agreed to sell, and the plaintiff agreed to purchase the plaint schedule property for a sum of Rs.76,84,937/- in terms of an agreement. On that day, the plaintiff paid to Poulose and defendants 1 to 4 a sum of Rs.50,000/- by way of advance sale consideration. Later on 30.11.2006, the plaintiff paid to Poulose and defendants 1 to 4 a sum of Rs.9,50,000/- also by way of advance sale consideration. As per the terms of the agreement, RFA No.911 of 2012 -: 4 :- the plaintiff ought to have purchased the plaint schedule property on or before 14.05.2007. On 12.05.2007, Poulose and defendants 1 to 4 received from the plaintiff a sum of Rs.9 lakhs also towards advance sale consideration. It is alleged by the plaintiff that on 14.05.2007, when he approached the defendants with the balance sale consideration, the defendants agreed to execute the sale deed on 15.05.2007 and requested the plaintiff to be present on that day at the Sub-Registry concerned. It is also alleged by the plaintiff that though he was present at Sulthan Bathery Sub-Registry on 15.05.2007, Poulose and defendants 1 to 4 did not turn up. Although the plaintiff caused to issue lawyer notices to Poulose and defendants 1 to 4 immediately thereafter on 19.05.2007 calling upon them to execute the sale deed, they did not comply with the demand therein. While so, on 05.06.2007, Poulose died. The suit, in the circumstances, was instituted against defendants 1 to 4 and defendants 5 to 8 who are the legal representatives of Poulose other than defendants 1 and 2, for specific performance of the agreement for sale dated 13.11.2006. 3. The defendants filed a joint written statement admitting the execution of the agreement for sale dated RFA No.911 of 2012 -: 5 :- 13.11.2006. They, however, contended that the plaintiff could not arrange the balance sale consideration within the time stipulated in the agreement; that he, therefore, approached Poulose and defendants 1 to 4 on 12.05.2007 with a request for further time for payment of the balance sale consideration, after paying Rs.9 lakhs more towards advance sale consideration and since Poulose and defendants 1 to 4 were not prepared to enlarge the time limit prescribed in the agreement for payment of the balance sale consideration, the parties had mutually agreed to treat the agreement as cancelled. According to the defendants, the plaintiff is therefore, not entitled to the relief sought for in the suit. 4. The brother and power of attorney holder of the plaintiff gave evidence on behalf of the plaintiff as PW1 and proved Exts.A1 to A12 documents. The first defendant gave evidence as DW1. Four other witnesses were also examined on the side of the defendants as DW2 to DW5. Exts. B1 to B12 are the documents proved by the defendants through their witnesses. 5. Among the documents, Ext.A1 is the agreement for sale dated 13.11.2006, Ext.A2 is the power of attorney executed by the plaintiff in favour of PW1, Ext.A3 is RFA No.911 of 2012 -: 6 :- the copy of the lawyer notice, Ext.A5 series are the postal acknowledgement cards evidencing receipt of Ext.A3 lawyer notice by the defendants, Exts.A7 and A8 are certified copies of two documents registered at Sulthan Bathery Sub-Registry on 15.05.2007 in which the plaintiff stood as witness, Ext.A9 is an agreement executed by the plaintiff with one Jose on 20.05.2005 and Exts.A10 series, A11 and A12 are a few purchase bills in favour of the plaintiff. 6. The court below, on an elaborate consideration of the facts and circumstances of the case, found that the power of attorney holder of the plaintiff is not competent to give evidence to prove the readiness and willingness of the plaintiff to perform his part of obligations under the agreement and that even otherwise, the plaintiff has not established his readiness and willingness to perform his part of the obligations under the agreement, inasmuch as he was unable to show that he was having the balance consideration payable to the defendants in terms of the agreement with him as on 14.05.2007, and declined the decree for specific performance sought in the suit on that basis. The court below, however, passed a decree permitting the plaintiff to realise the advance sale consideration of Rs.19 lakhs with interest, charged on the RFA No.911 of 2012 -: 7 :- plaint schedule property. The plaintiff is aggrieved by the said decision of the court below. 7. Heard the learned Senior Counsel for the plaintiff as also the learned counsel for the defendants. 8. The learned Senior Counsel for the plaintiff submitted that the finding rendered by the court below that the plaintiff was not ready and willing to perform his part of the obligations under Ext.A1 agreement is unsustainable. The learned counsel elaborated the said submission pointing out that if the plaintiff was not ready and willing to get the sale deed within the time stipulated, he would not have paid a further sum of Rs.9 lakhs also to the defendants on 12.05.2007, which was just two days prior to the last day fixed in the agreement for execution of the sale deed. It was also submitted by the learned counsel that the case of the defendants that on 12.05.2007, after paying a sum of Rs.9 lakhs to the defendants, the plaintiff sought further time for payment of the balance sale consideration and that since the defendants were not prepared to grant further time to the plaintiff for the said purpose, the parties have agreed to rescind the agreement is highly improbable, inasmuch as no one would part with such a huge sum of money, if the agreement is one to be rescinded on that RFA No.911 of 2012 -: 8 :- day on mutual agreement. It was also submitted by the learned counsel that Exts.A7 and A8 documents would show that there was an understanding between the parties that the sale deed would be executed on 15.05.2007, or otherwise, there was no need at all for the plaintiff to be present at the Sub-Registry on 15.05.2007. Relying on Ext.A9 agreement and Exts.A10 to A12 purchase bills, the learned counsel submitted that the plaintiff has established that he had sufficient funds to get the sale deed of the property at the relevant time. The learned counsel has also highlighted for the said purpose the conduct of the plaintiff in causing to issue lawyer notices on 19.05.2007 to the defendants demanding execution of the sale deed. According to the learned counsel, if the plaintiff was not ready and willing to get the sale deed of the property within the time stipulated, he would not have caused the lawyer notices to be issued to the defendants on 19.05.2007. The fact that there was no reply to the lawyer notice was also highlighted by the learned counsel to contend that the plaintiff was ready and willing to perform his part of the obligations under the agreement for sale. Placing reliance on the decision of the Apex Court in **Man Kaur v. Hartar Singh Sangha** , (2010) 10 SCC 512, the learned counsel argued that the power of attorney holder of the RFA No.911 of 2012 -: 9 :- plaintiff being the brother of the plaintiff himself and the person who has personal knowledge about the transaction, it cannot be said that he is incompetent to give evidence to prove the readiness and willingness on the part of the plaintiff. The learned counsel has also brought to our notice the recent amendments introduced to the Specific Relief Act and submitted, relying on the judgment of the Apex Court in Civil Appeal No.5110 of 2021 that even though the amendments cannot be said to be retrospective, the amended provisions in the Specific Relief Act shall be a guide for the court while exercising the discretionary jurisdiction to order specific performance. 9. Per contra, the learned counsel for the defendants argued that in a case of this nature, it was obligatory for the plaintiff to give evidence, and in the absence of the evidence of the plaintiff, the court below cannot be found fault with for having declined the decree for specific performance sought by him. It was also argued by the learned counsel that the materials on record do not indicate that the plaintiff was ready and willing to perform his part of the obligations under the agreement. It was further argued by the learned counsel that insofar as the balance sale consideration RFA No.911 of 2012 -: 10 :- payable by the plaintiff to the defendants in terms of the agreement was huge, the plaintiff should have produced his bank account statements to prove that he had sufficient funds with him at the relevant time to get the sale deed. According to the learned counsel, in the absence of any evidence as to the amount available to the credit of the plaintiff in his bank accounts at the relevant time, the court below cannot be blamed for having found that the plaintiff was not ready and willing to perform his part of the obligations under the agreement. It was also argued by the learned counsel that no credibility could be attributed to Exts.A9 to A12 documents which were produced on the date of the evidence inasmuch as the defendants were deprived on account of the said reason an opportunity to cross examine the power of attorney holder of the plaintiff effectively on those documents. Even otherwise, according to the learned counsel, no credibility could be attributed to the said documents inasmuch as the plaintiff has not examined the person with whom he entered into Ext.A9 agreement as also the persons who have issued Exts.A10 to A12 purchase bills. It was also submitted by the learned counsel that the statements contained in Ext.A9 look too artificial and in all probability, the same would only be a RFA No.911 of 2012 -: 11 :- document fabricated by the plaintiff for the purpose of this case. 10. We have considered the arguments advanced by the learned counsel for the parties on either side. 11. In the light of Section 16(c) of the Specific Relief Act, 1963, it is mandatory for a person seeking a decree for specific performance to prove that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms, the performance of which has been prevented or waived by the defendant. It is now trite that the term "readiness" in the statutory provision, in the context of an agreement for sale of immovable property, includes the financial capacity of the plaintiff to pay the purchase price also and the term "willingness" therein in the said context refers to the preparedness of the plaintiff to perform his part of the obligations under the contract. The factum of readiness and willingness on the part of the plaintiff is one to be judged with reference to the conduct of the party and the attending circumstances. The points arise for consideration in the appeal therefore are (1) whether the plaintiff has established readiness and willingness to perform his part of the obligations under RFA No.911 of 2012 -: 12 :- Ext.A1 agreement and (2) whether the plaintiff is entitled to the decree for specific performance sought by him. 12. Points: As noted, as per the terms of Ext.A1 agreement, the plaintiff ought to have paid to Poulose and defendants 1 to 4 the balance sale consideration amounting to Rs.57,84,937/- on or before 14.5.2007. The plaintiff has no case that time was not the essence of the contract and he was therefore not obliged to pay the balance sale consideration on or before 14.05.2007. His case, on the other hand, is that he was ready and willing to pay the balance sale consideration within the time stipulated and Poulose and defendants 1 to 4 did not receive the balance sale consideration from him. The case of the defendants is that even though they were prepared to receive the balance sale consideration and transfer the plaint schedule property to the plaintiff, they were unable to do so since the plaintiff could not pay the balance sale consideration within the time stipulated. 13. As noted by the court below, the plaintiff did not give evidence in the suit. Instead, evidence on behalf of the plaintiff was given by the brother and power of attorney holder of the plaintiff. It is now trite that a power of attorney holder who has signed the plaint and instituted a suit on behalf RFA No.911 of 2012 -: 13 :- of another, but has no personal knowledge of the transaction, can give only formal evidence about the validity of the power of attorney and the filing of the suit. Of course, if the power of attorney holder has done any act or handled any transaction, in pursuance of the power of attorney, he can give evidence to prove those acts and transactions as well. Likewise, if the power of attorney holder alone has personal knowledge of such acts and transactions and not the principal, the power of attorney holder can certainly give evidence, if those acts and transactions have to be proved. The power of attorney holder however cannot give evidence in the place of his principal in respect of acts done by the principal or transactions or dealings of the principal of which the principal alone has personal knowledge. No doubt, where the principal at no point of time personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by the power of attorney holder, the power of attorney holder alone could give evidence in regard to the transaction. Again, where law requires or contemplates a party to a proceeding to prove something with reference to his state of mind or conduct, the person concerned alone could give evidence and not a power of RFA No.911 of 2012 -: 14 :- attorney holder. Where, however, all the affairs of a party are completely managed, transacted and looked after by a power of attorney, like son, daughter etc. who are managing the affairs of the old and infirm parents and like father, mother etc. who are managing the affairs of children living abroad, it may be possible to accept the evidence of such attorney even with reference to the bona fides or readiness and willingness. In short, although it cannot be said that a power of attorney holder of the plaintiff in a suit for specific performance of an agreement for sale cannot give evidence to prove the readiness and willingness of the plaintiff, the evidence of the person concerned cannot be dispensed with in cases other than cases where all the affairs of the party are completely managed, transacted and looked after by a power of attorney who are managing the affairs of children living abroad [See **Man Kaur]** . 14. Reverting to the facts of the present case, Ext.A1 is an agreement for sale executed by the plaintiff himself. The advance sale consideration was also paid by the plaintiff himself on different occasions. The assurance stated to have been given by Paulose and defendants 1 to 4 to the plaintiff, as pleaded by him in the plaint, that they will execute the sale deed in respect of the plaint schedule property in RFA No.911 of 2012 -: 15 :- favour of the plaintiff on 15.5.2007 is one stated to have been made by Paulose and defendants 1 to 4 to the plaintiff. Similarly, the lawyer notice demanding execution of sale deed is one issued at the instance of the plaintiff. Even though the power of attorney holder of the plaintiff has stated in the proof affidavit filed by him in lieu of chief examination that he had personal knowledge of the transaction, there is no pleading to that effect in the plaint. That apart, there are no materials also to show that the power of attorney holder of the plaintiff was involved in the transaction in any manner and the said fact has been admitted by the power of attorney holder of the plaintiff also in cross examination. In the said circumstances, according to us, it was obligatory for the plaintiff to give evidence to prove the readiness and willingness to perform his part of the obligations under the agreement for sale and the evidence tendered by the power of attorney holder of the plaintiff cannot be accepted in lieu of the evidence of the plaintiff to establish the readiness and willingness on the part of the plaintiff to perform his part of the obligations under the contract. 15. Be that as it may, we shall now consider the question as to whether the plaintiff could prove that he was having sufficient funds to pay the balance sale consideration to RFA No.911 of 2012 -: 16 :- Poulose and defendants 1 to 4 before the last date stipulated in the agreement for sale in order to establish his readiness and willingness to perform his part of the obligations under the contract. As noted, going by the terms of Ext.A1 agreement, the plaintiff ought to have paid the balance sale consideration on or before 14.05.2007. It is seen that there is an endorsement by the first defendant on the rear side of the first page of Ext.A1 to the effect that the plaintiff has paid to him Rs.9 lakhs on 12.05.2007, out of the amounts payable in terms of the agreement on or before 14.05.2007. The said endorsement reads thus: “ട� എഗ��മ�ന � ഗ�ക�ര� 14.05.07 ന� രണ�കക� 1-ആ� കക�കൾക� മക�ട�കകണത�യ 6684937/ര��യ�ൽ 9,00,000/- (ഒൻ�ത� ലക�) ര�� 12.05.07 ൽ കക�റ� ക!�ധ#മ$ട�ര�ക�ന�.” The endorsement aforesaid would give an indication that on 12.05.2007, the plaintiff was proceeding as if he was going to pay the balance sale consideration on or before 14.05.2007. The endorsement aforesaid would also give an indication that on 12.05.2007, even Poulose and defendants 1 to 4 were also proceeding as if they are going to transfer the plaint schedule property to the plaintiff on 14.05.2007. The case pleaded and RFA No.911 of 2012 -: 17 :- attempted to be proved by the plaintiff is that although he was prepared to pay the balance sale consideration amounting to Rs.57,84,937/- on 14.05.2007, payment of the balance sale consideration and execution of the sale deed were postponed to 15.05.2007 as requested by Poulose and defendants 1 to 4. Exts.A7 and A8 are the two documents relied on by the plaintiff to prove the said fact. Of course, Exts.A7 and A8 documents would show that the plaintiff was present in the concerned SubRegistry on 15.05.2007, but the said documents, according to us, are not sufficient to accept the case of the plaintiff that he was prepared to pay the balance sale consideration on 14.05.2007. It is common knowledge that in a case of instant nature, the plaintiff is the person who has to make necessary arrangements for satisfying the title of the sellers of the property sought to be purchased by him after verifying the documents. Similarly, it is the plaintiff who has to make necessary arrangements for preparation of the draft of the sale deed and for payment of the required stamp duty. All these arrangements cannot be done in a day or two and normally, arrangements of this nature are made prior to the day on which the document is proposed to be executed. There is nothing on record to indicate that the plaintiff has made any arrangement RFA No.911 of 2012 -: 18 :- for satisfying the title of the defendants over the property, for preparing the draft of the sale deed, for remitting the stamp duty payable etc. The power of attorney holder of the plaintiff who gave evidence on behalf of the plaintiff was not even aware of the aforesaid requirements. He has deposed that he has not seen the title deeds of the plaint schedule property till 15.05.2007. When questioned during cross examination in this regard, PW1 has also stated that he has only seen a few photocopies of some of the documents. He has also admitted in cross examination that the plaintiff has neither purchased stamp papers for execution of the sale deed nor made any arrangement till 15.05.2007 for preparation and registration of the sale deed. Even though he has vaguely explained in cross examination that it is since the defendants have agreed to make the said arrangements that they were not arranged by the plaintiff, the said explanation was, however, not stated in the proof affidavit filed by the plaintiff. That apart, we do not think that any seller would make arrangement for payment of stamp duty on behalf of the buyer as claimed by the power of attorney holder of the plaintiff, especially when the stamp duty payable is a huge amount running to several lakhs. As rightly argued by the learned counsel for the defendants, no credibility RFA No.911 of 2012 -: 19 :- could be attributed to Exts.A9 to A12 documents which are self serving. In short, the case of the plaintiff that he was ready with the balance sale consideration on 14.05.2007 cannot be accepted. We take this view also for the reason that as noted, the amount payable by the plaintiff to Poulose and defendants 1 to 4 by way of balance sale consideration was a huge amount and availability of such huge amount is normally expected to be proved by producing the bank accounts of the parties concerned. In the case on hand, it is admitted by the power of attorney holder of the plaintiff in his evidence that at the relevant time, the plaintiff was not having the amount payable to the defendants towards balance sale consideration in his bank account. 16. True, on 19.05.2007 itself, the plaintiff caused to issue lawyer notices to Poulose and defendants 1 to 4 demanding execution of the sale deed in respect of the plaint schedule property after accepting the balance sale consideration and the defendants who have admittedly received the same did not send any reply to the lawyer notices. According to us, in the light of the categoric finding rendered by us that the plaintiff was not having funds sufficient for payment of the balance sale consideration in terms of the RFA No.911 of 2012 -: 20 :- agreement for sale, no inference in favour of the plaintiff could be made from the facts that the plaintiff has caused to issue lawyer notices to the defendants demanding execution of the sale deed in respect of the plaint schedule property immediately after the expiry of the time limit prescribed for payment of the balance sale consideration and that there was no reply to the same from the side of Poulose and defendants 1 to 4. 17. As noted, the version of the defendants in the written statement is that on 12.05.2007, the plaintiff paid them a sum of Rs.9 lakhs more by way of advance sale consideration and requested for some more time to pay the balance sale consideration and since the said request of the plaintiff was not acceptable, they have mutually agreed to rescind the agreement for sale. It is difficult to accept this case of the defendants also. As rightly pointed out by the learned Senior Counsel for the plaintiff that if, as a matter of fact, the parties have decided to rescind the agreement for sale on 12.05.2007, the plaintiff would not have paid a sum of Rs.9 lakhs more to Poulose and defendants 1 to 4 on that day towards advance sale consideration. But merely for the reason that the defendants in a suit for specific performance for an agreement RFA No.911 of 2012 -: 21 :- for sale were unable to prove their case in the written statement, the plaintiff cannot claim a decree for specific performance. In the light of the above discussion, we do not find any merit in the appeal and the same is, accordingly, dismissed. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 28.01.2022