Joseph Kurian v. Claramma John

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940** **RSA.No. 303 of 2005** **AGAINST THE DECREE & JUDGMENT IN AS 218/2002 OF 5TH ADDITIONAL DISTRICT COURT,ERNAKULAM DATED 31-07-2004** **AGAINST THE DECREE & JUDGMENT IN OS 54/2002 of SUB COURT, MUVATTUPUZHA DATED 11-10-2002** **APPELLANT/APPELLANT/PLAINTIFF:** **JOSEPH KURIAN,S/O.JOSEPH, THATTARKUNNEL HOUSE, E.VARAPETTY P.O.,, MULAVOOR KARA, MULAVOOR VILLAGE,, MUVATTUPUZHA TALUK.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.R.VENKETESH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 CLARAMMA JOHN, W/O.LATE JOHN, THATTARKUNNEL HOUSE, E.VARAPETTY P.O., MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK** **2 JOHNSON JOHN, S/O. LATE JOHN, THATTARKUNNEL HOUSE, E.VARAPETTY P.O., MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK.** - **3 SIBI VAZHUTHANAPPILY HOUSE, THOTTUVA, KURAVILANGADU, KOTTAYAM.** **BY ADVS. SRI.B.G.BHASKAR } R1 TO R3 SRI.BIJU ABRAHAM }** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2019, ALONG WITH RSA.314/2005, RSA.916/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940** **RSA.No. 314 of 2005** **AGAINST THE JUDGMENT AND DECREE DATED 31.7.2004 IN AS 217/2002 OF 5TH ADDITIONAL DISTRICT COURT, ERNAKULAM** **AGAINST THE JUDGMENT AND DECREE DATED 11.10.2002 IN OS 160/2000 of SUB COURT, MUVATTUPUZHA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 JOSEPH KURIEN, SON OF JOSEPH, THATTARKUNNEL HOUSE, E. VARAPPETTY P.O., MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK.** - **2 JOBI T. KURIEN, S/O. KURIEN DO. DO. DO 3 JOHNSON K. KURIEN, S/O. KURIEN DO. DO. 4 JAISON K. KURIEN, S/O. KURIEN DO. DO. BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.R.VENKETESH** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** - **1 CLARAMMA JOHN,W/O.LATE JOHN, THATTARAKUNNEL HOUSE, E. VARAPETTY P.O., MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK.** - **2 JOHNSON JOHN, S/O. LATE JOHN, DO. DO. DO 3 BESSY E. JOHN, D/O.LATE JOHN VAZHUTHANAPPILLY HOUSE, THOTTUVA, KURAVILANGADU, KOTTAYAM. BY ADVS. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2019, ALONG WITH RSA.916/2017, RSA.303/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940** **RSA.No. 916 of 2017** **AGAINST THE ORDER/JUDGMENT IN AS 45/2011 of SUB COURT, MUVATTUPUZHA DATED 29-11-2016** **AGAINST THE ORDER/JUDGMENT IN OS 110/2009 of MUNSIFF COURT,MUVATTUPUZHA DATED 19-09-2011** ## **APPELLANT/APPELLANT/DEFENDANT:** **CLARAMMA JOHN** **AGED 72 YEARS,W/O.LATE JOHN,THATTARKUNNEL HOUSE,MULAVOOR KARA & VILLAGE,MUVATTUPUZHA TALUK.** **BY ADV. SRI.BIJU ABRAHAM** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **JOSEPH KURIAN** **AGED 76 YEARS,S/O.LATE JOSEPH,THATTARKUNNEL HOUSE,MULAVOOR KARA & VILLAGE,MUVATTUPUZHA TALUK686673.** **BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRAJITH SRI.S.SREEKUMAR (SR.) SRI.THOMAS P.KURUVILLA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2019, ALONG WITH RSA.314/2005, RSA.303/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 4** ## **JUDGMENT** A suit for specific performance of contract for sale based on Ext.A5 contract was decreed by the Sub Court, Muvattupuzha in O.S.No.160/2000 and by the Additional District Court, Ernakulam in A.S.No.217/2002. Another suit in O.S.No.54/2002 was filed by the defendant against the plaintiff with respect to the same property for restraining the plaintiff from dispossessing the property or causing any obstruction to the peaceful possession of the property by the defendant. That suit was dismissed by both the Trial Court and the First Appellate Court by a common judgment. Hence the defendant in O.S.No.160/2000 who is the plaintiff in O.S.No.54/2002 came up with these two appeals. 2. The parties herein below are referred in their status in the leading case in O.S.No.160/2000. 3. The suit in O.S.No.160/2000 was filed for specific performance of the contract for sale, **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 5** exhibited as A5 dated 15.03.1985. The suit was filed only on 27.11.2000, after the lapse of 15 years. Both the Trial Court and the First Appellate Court decreed the suit granting specific performance finding that in a suit for specific performance of the contract, the time is not an essence of the contract. 4. The questions came up for consideration in these appeals are: - (i) Whether the Trial Court and the First Appellate Court are justified in granting a decree of specific performance in a suit filed after 15 years on the ground that the time is not the essence of the contract ? (ii) What is the provision of law governs the limitation for specific performance of a contract for sale and whether the Trial Court and the First Appellate Court failed in applying the correct legal position regarding limitation for enforcement of specific performance of contract for sale ? 5. The defendant is the owner of the property. ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 6** Ext.A5 agreement is dated 15.03.1985. The period made mentioned in the contract is for six months from the date of its execution. No suit was filed within a period of three years from the date of expiry of the period agreed in Ext.A5 contract for sale. The suit was filed after 15 years. It is true that normally the time is not an essence of the contract for sale of immovable property is concerned. But the time would be essence of the contract when there is an agreement for re- conveyance. There can be exemption to the above said normal rule by the agreement of party making the time as essence of the contract. 6. When time is the essence of the contract, the parties should perform their respective part of contract either within the time specified in the agreement or within a reasonable time. It will not affect the period of limitation available under Article 54 of the Limitation Act. The dispute involved in this suit is whether the present suit will come under the purview of first limb or second ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 7** limb of Article 54 of Limitation Act. The contention is that six months period was specified in Ext.A5 contract for sale. But going by the recital, it is clear that six months period was given for the purpose of curing and rectifying defects if any with respect to the mistake in the survey number of the property and to satisfy the extent of property. No time is fixed for specific performance of the contract. Hence the parties are governed by second limb of Article 54 and the time began to run from the date on which the plaintiff has noticed that performance is refused. It is submitted that the plaintiff has submitted that she has requested for performance of the contract within six to eight months from the date of contract, but she did not have any case that on her request the defendant has refused performance. Her specific case is that the defendant never made any refusal to perform contract for sale till the date of cause of action stated in the plaint. The suit was filed only after 15 years, but it is within ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 8** three years from the date of notice of refusal to performance of contract for sale and hence within time. 7. The appellant relied on the two decisions of the Apex Court in **Ramzan v. Hussaini ( AIR 1990 SC 529) and Brahmanand v. Muthugopal (2005 KHC** **1840).** The relevant portions of the decision in **Ramzan's** case (supra) case relied on by the learned counsel for the appellant extracted below for reference : The relevant provisions in the alleged agreement of sale as quoted in the judgment of the trial court reads as follows: This house is under mortgage with Jethmal Bastimal for Rs.1000/-. When you will get this house, the description of which is given below, redeemed from M/S.Jethmal Bastimal and take the papers of the registry in your possession, on that day I will have the sale deed of the said house, written, executed and registered in your favour. The question is whether a date was 'fixed' for the performance of the agreement and in our view the answer is in the affirmative. It is true that a particular date from the calendar was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 9** immediately after the redemption, filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for ? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of Section 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R.Muniswami Gounder and Anr. v. B.M.Shamanna Gouda and Ors. (MANU/TN/0343/1950: AIR 1950 Mad 820 expressed in slightly different circumstances. The doctrine of id certum est quod certain reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. The Brigton Club and Norfolk Hotel Company(1875) 10 Q.B.371, relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at Common Law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day, which, when the ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 10** goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiff's demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be mad, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part. The relevant portion relied on by the appellant in **Brahmanand's** case (supra) extracted below for reference : Mr.R.F.Nariman, learned Counsel for the Plaintiffs vehemently contended that the High Court was wrong in reversing the decree on the ground of limitation. His submissions were as ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 11** follows: On regarding the agreement of 10.3.1989 as a whole, it is clear that no date for specific performance was fixed until the cloud on the vendors' title was removed. In other words, the date of performance was only after the dismissal of the two suits. This meant that the date fixed for performance would arise only after the final dismissal of Moosakutty's suits and the appeals therein. In the alternative, he contended that letter dated 18.6.1992 can be read to show the true common intention of the parties, which was that the date of performance was extended until the difficulty created by Moosakutty's appeal and the injunction therein was resolved and that “it is advisable to wait for things to be more clear”. He, therefore, contends that this letter would suggest that whatever the parties might have originally intended, after the letter of 18.6.1992 the time had been extended. That even if Clause(1) of the agreement alone must be looked at, vacating an injunction is not a certain event, and, therefore, the first part of Art.54 of the Limitation Act, 1963 would not apply. 8. These two decisions were rendered regarding the date of performance fixed in relation to a future event to be happened. The legal position settled therein has no application in the instant case. 9. Yet another argument was placed based on ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 12** Section 73 and 45 of the Evidence Act that no expert evidence was adduced to prove due execution of the contract for sale. PW6 a rubber tapper and the scribe who had prepared Ext.A5 document were examined to prove the due execution and found that Ext.A5 is duly executed by the defendant. A signature found affixed also compared with the admitted signature and found to be similarly written. No application was submitted to obtain expert opinion by the defendant. Concurrent finding rendered by both the trial court and the first appellate hence deserves no interference. 10. In so far as exercise of discretion under Section 20 of Specific Relief Act is concerned, out of the sale consideration of Rs.1,75,000/-, an amount of Rs.1,50,000/- was paid which comes to more than 85% of sale consideration. There is nothing to show that the terms and agreement between the parties are inequitable giving an unfair advantage to the plaintiff or hardship to the defendant. Nothing was brought to the notice ## **R.S.A.Nos.303, 314 of 2005 & 916 of 2017 13** of this court so as to enable the court to exercise the discretion in favour of the defendant. In view of the discussion made above, and on the concurrent finding rendered by both the trial court and the first appellate court, the appeals deserve only dismissal. I do so. These three appeals are dismissed, without costs. **Sd/P.SOMARAJAN, JUDGE** pm **// TRUE COPY // PA TO JUDGE**