Jaya S.N. v. M.P. Arun Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** ## **RFA.No. 363 of 2011** **AGAINST THE JUDGMENT IN OS 62/2008 of SUB COURT,NEYYATTINKARA DATED 16-02-2011** ## **APPELLANT/DEFENDANT:** **JAYA S.N, D/O. CICILY,** **VANDOTTIKONATHU MEKKUMKARA THEKKE PUTHEN VEEDU, PALLICHAL, PALLICHAL VILLAGE NOW RESIDING AT JAYA BHAVAN, VILAPPILSALA VILLAGE, MALAPPANAMCODE, VILAPPILSALA P.O., THIRUVANANTHAPURAM DISTRICT** ## **BY ADV. SMT.P.K.RADHIKA** ## **RESPONDENT/PLAINTIFF:** **M.P.ARUN KUMAR, S/O MONY, RESIDING AT RAILWAY QUARTERS NO.91-J, THAMPANOOR, THYCAUD VILLAGE, THIRUVANANTHAPURAM TALUK AND DISTRICT.** ## **BY ADV. SRI.D.VIJAYAKUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.No. 363 of 2011 2 ## **JUDGMENT** The appellant has filed this appeal challenging the judgment and decree dated 16.02.2011 in O.S.62/2008 passed by the Subordinate Court, Neyyattinkara. 2. The facts of the case in a nutshell are as follows: The appellant/defendant and the respondent/plaintiff had entered into an agreement on 13.07.2007 to sell the plaint schedule property for a sale consideration of Rs.25,000/- per cent, within a period of five months from the date of the agreement. The total consideration for the property comes to Rs.10 lakhs. He paid an amount of Rs.50,000/- as advance towards the sale consideration. Though he was ready and willing to get the sale deed executed in his favour, the defendant failed to execute the sale deed. The time fixed for execution was further extended for a period of three months, i.e; upto 12.03.2008, but the defendant did not execute the sale deed. Hence, the suit for specific performance. 3. On the other hand, though the defendant admitted the execution of the sale deed, denied the allegation that the time RFA.No. 363 of 2011 3 for execution of the sale deed was extended for a further period of three months from the original time limit of 12.12.2007. The plaintiff made certain additions/entries in the document behind her back by incorporating a recital that time for execution of the sale deed was extended for a further period of three months but, she never signed the document agreeing for extension of time for execution of the sale deed. In fact her brother signed the document as a witness and some space was available in the original document between their signatures and the plaintiff had misused that space by making an addition for extension of time. The plaintiff was not ready and willing to perform his part of the contract within the period of five months stipulated in the agreement and there was also no extension of time as alleged and hence she was not bound to execute the sale deed after the period fixed by the parties. She had also contended that she had given advance to one Lilly Pushpam for purchase of a property by paying the advance amount of Rs.50,000/- received from the plaintiff and an agreement was executed on 9.8.2007 but as the plaintiff had failed to perform his part of the contract, she could not purchase that property and thus she lost her money . RFA.No. 363 of 2011 4 4. Before the court below, plaintiff was examined as PW1 PW2 and 3 were also examined on the side of the plaintiff and Exts.A1 to A4(a) were marked. To prove the case of the defendant, she was examined as DW1 and DW2 was also examined. Exts.B1 to B3 were also marked. 5. Upon consideration of the oral and documentary evidence, the court below decreed the suit directing the defendant to execute the sale deed in favour of the plaintiff on receipt of the balance sale consideration. The said judgment and decree are under challenge. 6. Heard Smt.P.K.Radhika, learned counsel for the appellant/defendant and Sri D.Vijayakumar, learned counsel for the respondent/plaintiff. 7. Ext.A1 is the sale agreement executed between the plaintiff and the defendant dated 13.07.2007. The execution of the sale agreement is not in dispute. As per Ext.A1 sale deed, the time stipulated for execution of the sale deed was five months from the date of Ext.A1 agreement i.e.upto 12.12.2007. The sale consideration fixed was Rs.25,000/- per cent. Thus, the total consideration for the plaint schedule property will be Rs.10 lakhs. RFA.No. 363 of 2011 5 Out of the sale consideration of Rs.10 lakhs, the defendant received an amount of Rs.50,000/-. The plaintiff aged 21 years was a student at the time of execution of the document. As PW1 he had deposed that after execution of the agreement dated 13.07.2007, he contacted the defendant many times and expressed his willingness to purchase the property, but it was not materialized due to the failure on the part of the defendant to perform her obligation. He had also deposed that it was learnt by him that the defendant had mortgaged the property before the Pallichal Farmers Service Co-operative Society for a sum of Rs.2 lakhs and the loan was pending and the original title deed of the document was deposited in the society. As there was failure on the side of the defendant in executing the sale deed, he had sent Ext.A2 lawyer notice on 4.1.2008 and Ext.A3 lawyer notice on 25.1.2008 demanding execution of the sale deed. But according to him, there was no response on the side of the defendant to get the document released from the Co-operative Society. So again he approached the defendant and got extension of time for execution of the sale deed for a further period of three months, but she failed to execute the sale deed. According to him the RFA.No. 363 of 2011 6 defendant intends to sell out the land to some others as the price of the land has increased. 8. It is pertinent to note that the defendant had denied the allegation of the plaintiff that the time for execution of the sale deed was extended for a period of three months from 12.12.2007 to 12.03.2008. She denied the endorsement in Ext A1 for extension of time. In order to substantiate her case she had raised various contentions. According to her, the copy of the sale agreement was handed over to her at the time of execution and the same is Ext.B1. The endorsement alleged to have been made by extending the period for execution of the agreement did not find a place in Ext.B1, the copy of the document handed over to her. The learned counsel for the plaintiff contended that she might have managed to produce the same without the endorsement some how or other and that is the reason why the endorsement did not find a place in the copy furnished to her. The said contention could be appreciated only on the basis of the other facts and circumstances involved in this case. A perusal of the document would show that in page No.4, she had affixed her signature and after her signature, space was provided for RFA.No. 363 of 2011 7 affixing the signatures of her husband as a witness, but he has not signed in the space provided for affixing his signature. Her brother N.Vijayan had affixed his signature as a witness and it is seen that she had affixed another signature below the signature of his brother. The endorsement that the time was extended for a period of three months from 12.12.2007 had been endorsed in the space found on the bottom of the document. She would point out that three lines were seen written adjusting the writing in the small space provided in between the signature of her brother as well as her signature and its' appearance itself would show that it was an addition/manipulation made by the plaintiff so as to appear that she had agreed for extension of time. The other circumstance pointed out by the learned counsel for the defendant that the endorsement is not genuine is that, if the period for execution of the sale deed was extended for three months from 12.12.2007 to 12.03.2008, then there was absolutely no necessity for the plaintiff to issue Ext.A2 notice dated 4.1.2008 and Ext.A3 notice dated 25.1.2008 as the sale deed had to be executed only before 12.03.2008. In fact, the explanation given by the learned counsel for the plaintiff was that RFA.No. 363 of 2011 8 such notices were issued by him so as to inform that he was ready to pay off the debt due to the Society to get the loan cleared for execution of the sale deed. But it is to be noted that there is no such statement in the notice issued by him dated 4.1.2008. Of course, in Ext.A3 he has stated that he is ready to pay the amount of Rs.2 lakhs to get release of the mortgaged property. 9. The learned counsel for the defendant argued that within the time fixed for execution of the sale deed the plaintiff never approached her and expressed his readiness and willingness to get the document executed in his favour. As the time for execution of the document was the essence of the contract, there was no meaning in saying that he was ready to settle the debt after the period fixed for execution of the document as per Ext.A1 and therefore, the issuance of Exts.A2 and A3 could only be considered as documents created so as to appear that he was ready and willing to perform his contract, after getting necessary legal advice that time was not considered as the essence of the contract and he was ready and willing to perform the contract. As it has come out in evidence that the RFA.No. 363 of 2011 9 plaintiff had never approached the defendant for execution of the sale deed within the time stipulated in Ext.A1, the argument made by the counsel for the plaintiff does not appears to be good for the main reason that he did not adduce any evidence to show that he was ready and willing to perform his part of obligation within the stipulated period and he was having sufficient funds with him to pay the balance sale consideration of Rs.9,50,000/-. The plaintiff has not placed documents to establish that he had the money with him at the relevant point of time to perform his part of the contract. As mentioned above, no convincing evidence was adduced by the plaintiff to substantiate that he had approached the defendant with the balance sale consideration within the period fixed as per Ext.A1 so as to establish the fact that he was always ready and willing to perform his part of obligation. So there is no convincing evidence to show that the plaintiff had approached the defendant at any point of time so as to prove that he was ready and willing to perform his part and he was having the sufficient amount with him to pay the balance sale consideration as agreed in the agreement. 10. PW2 was examined by the plaintiff to prove that the RFA.No. 363 of 2011 10 period was extended for three months from 12.12.2007 and the endorsement was made at the office of the document writer at Nemom. PW2 is the uncle of PW1. He has stated that he signed the document and the defendant and the father of the plaintiff were also present there to sign the document. But in cross examination he admitted that he had no acquaintance with all the persons present in the office of the document writer and he was unable to speak about their identity. It is pertinent to note he was not a witness to the original agreement. When the defendant say that she had never made an endorsement in Ext.A1 extending the time stipulated, the evidence must be clear and unambiguous that the defendant herself agreed and executed the stipulation extending the time limit. 11. PW3 is the father of the plaintiff. He deposed that the plaintiff was a student at the time of execution of the agreement and the contents of the document were known to him and he was also present when the period for execution was extended. He has also admitted that he was aware of the fact that the defendant had entered into an agreement for purchase of the property from Lilli Pushpam. But he denied the allegation that he was engaged RFA.No. 363 of 2011 11 in real estate business. 12. It is well settled that in a suit for specific performance of contract, the plaintiff who approach the court for a specific performance has to prove by adducing sufficient and reliable evidence that he was always ready and willing and continues to be ready to execute the document. Here the evidence of PW1 and evidence of PW3 itself appears to be contradictory to each other as PW1 has deposed that after execution of the agreement and payment of Rs.50,000/-, a further amount of Rs.2 lakhs had been paid as part of the sale consideration and the said amount was arranged by his father and the payment was without making any endorsement in the document. But, it is interesting to note that PW3, his father had no such case and he had not deposed that he had paid Rs.2 lakhs as deposed PW1, or he had arranged the money to pay Rs.2 lakhs to the defendant as part of the sale consideration. So the evidence of DW1 and DW2 are contradictory on this aspect. This circumstance itself creates strong suspicion about the execution of endorsement, extending the period for execution of the document. Since such suspicious circumstance had been created the burden is upon the plaintiff to RFA.No. 363 of 2011 12 remove the suspicion and to prove that such an extension was granted and there was nothing to doubt about the genuineness of the document and there was no manipulation/addition in the document. Like that the witness to the original agreement was the brother of the defendant. If the period for execution was extended definitely he would have signed the document but, here the uncle of the plaintiff was cited as the witness. No acceptable evidence was adduced for not citing the original witness, when the alleged endorsement was made in Ext.A1. 13. It is well settled that under Section 20 of the Specific Relief Act, the court is not bound to grant the relief for specific performance even when it is lawful to do so as it is purely discretionary. The learned Counsel for the defendant placed reliance on the judgment of a Single Judge of this Court in _**Kochammu and Others v Kumaran and Others [2017 (4) KLT SN 65]**_ to fortify her argument, where it was held that granting a decree for specific performance is purely a discretionary one, placing reliance on several authorities on the said point **.** In paragraph No.35 it was held that: **“** It is clear from the above dictums that granting a RFA.No. 363 of 2011 13 decree for specific performance is a discretionary one and if the Court on the basis of the evidence is convinced that granting specific performance is inequitable and it will cause undue advantage to the plaintiff and hardship to the defendant, then even if it is lawful to grant a decree for specific performance, Court may deny the same. It is also clear from the dictum that in appropriate cases, when Court in inclined to grant decree for specific performance, taking into account the escalation of price in urban areas so fast and after lapse of time granting a decree for specific performance for a smaller amount agreed between the parties will cause undue loss to the defendant, then, Court has power to enhance the amount payable as sale consideration and re-fix the amount payable for such transaction. But Court must take into consideration the circumstances and the conduct of the parties before exercising such discretion in favour of the defendant.” 14 **.** A Division Bench of this Court in _**Antony Correya and Others v. P.N.Mohammed Abdul Rahiman and Others**_ _**[2018 (3) KHC 496]**_ held that specific performance of contract for sale being discretionary, it is always permissible to explore the application under Section 12 of the Act in proper cases with a view to advance justice. 15. It is also important to note that Section 20(2)(b) of the RFA.No. 363 of 2011 14 Specific Relief Act, 1963 lists the cases in which the court may exercise discretion not to grant decree of Specific Performance. Section 20 (2)( a) and (b) reads thus ''20.(2) The following are cases in which the court may properly exercise discretion not to decree specific performance _ a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract,though not voidable,gives the plaintiff an unfair advantage over the defendant; or b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee ,whereas its non-performance would involve no such hardship on the plaintiff'' 16. According to the defendant on receipt of the amount of Rs.50,000/- from the plaintiff she had entered into another agreement with one Lilli Pushpam for purchase of the property for construction of a residential house by paying advance amount. She utilized the amount received from the plaintiff to pay the advance to Smt.Lilli Pushpam. But she could not perform that contract due to the failure on the side of the plaintiff and thus she sustained loss. Ext.B2 is the sale agreement executed by her with Smt.Lilli Pushpam. The period fixed for execution of RFA.No. 363 of 2011 15 the document was extending only upto 31.12.2007. Her definite contention is that because of the failure on the side of the plaintiff to pay the balance sale consideration within the period of 12.12.2007 she could not get the document executed in her favour on the basis of Ext.B2 document and thus she suffered loss. The learned counsel for the plaintiff argued that though she produced Ext.B2 document, Smt.Lilli Pushpam was not examined before the court and so it was not possible to rely on her evidence that she sustained the loss by paying advance for the purchase of the property owned by Smt. Lilli Pushpam. So also he has pointed out that she had a loan of Rs.2 lakhs pertaining to the plaint schedule property and after clearing that loan of Rs.2,00,000/- the balance would be Rs.8 lakhs, which would not be sufficient for her to purchase the property and she could not give a clear answer how she would arrange the balance sale consideration to get the document executed in her favour from Smt.Lilli Pushpam. But the main thing to be looked into was whether the plaintiff was ready with the money and whether he had performed his part of the contract within the time stipulated in the agreement, ie; before 12.12.2007, especially when it was RFA.No. 363 of 2011 16 found that extension of time was not proved by adducing cogent and satisfactory evidence by the plaintiff. When PW1 was examined he had deposed that the sale consideration will be paid by his father by availing a loan and the document was proposed to be executed in his favour for availing a loan to construct a building. But he has not produced any document to substantiate the fact that he had made arrangements to avail a loan to adjust the balance sale consideration or his father had the money to pay the balance sale consideration within the period of 12.12.2007. Such being the case it is difficult to conclude that the plaintiff was always ready and willing to pay the balance sale consideration. As mentioned above, in a suit for specific performance there should be specific pleading in the plaint itself that he was ready and willing to pay the balance sale consideration. So also, the readiness and willingness to pay the balance sale consideration and the capacity to raise the fund within the time has to be proved by the plaintiff and it is a condition precedent which has to be proved by reliable and acceptable evidence, to get a decree for specific performance. Therefore, I find it difficult to accept the contention raised by the RFA.No. 363 of 2011 17 plaintiff that he was always ready and willing to perform his part of the contract and it was not materialized due to the defect on the side of the defendant to clear off the loan pending and to get the title deed released from the bank,as correct. There is also no scope to exercise the discretion in favour of the plaintiff to grant a decree for specific performance of contract as the hardship will be caused to the defendant if decreed for specific performance and so an interference to the impugned judgment is called for and the decree of the trial court can be modified . 17. The learned counsel for the plaintiff would point out that she is always ready to return the amount of Rs.50,000/received by her on 13.7.2007 from the defendant with reasonable interest. She had proved that she sustained loss due to the non performance of the contract as she could not raise money to pay the sale consideration for the property in Ext.B2 due to the nonperformance of contract by the plaintiff. Considering the relief to be granted, to the plaintiff, admittedly the plaintiff had paid an advance amount of Rs 50,000/- that has to be necessarily paid back to the plaintiff with reasonable interest in the interest of justice. Hence the judgment and decree under challenge for RFA.No. 363 of 2011 18 specific performance are set aside and a decree for return of advance amount is granted. 18. The defendant is directed to return the advance amount of Rs.50,000/- with interest at the rate of 6% from 13.7.2007 (from the date of Agreement to sell) till the date of payment by way of demand draft in favour of the plaintiff within three months from the date of receipt of the copy of this judgment. The parties shall bear their respective costs. The appeal is accordingly allowed . **Sd/-** **SHIRCY V.** Ks/smm **JUDGE**