K. Ravindran v. K. Aruchami

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933** **RSA.NO. 577 OF 2004 ( )** **----------------------------------AS.146/1999 OF II ADDITIONAL DISTRICT COURT, PALAKKAD OS.162/1997 OF ADDITIONAL MUNSIFF COURT, PALAKKAD** ## **APPELLANT(S)/APPELLANT/PLAINTIFF:** **-----------------------------------------------------------** **K.RAVINDRAN, AGED 44 YEARS, S/O.M.N.KURUP, `KAMINI', SHEKARIPURAM PUTHUR, AMSOM AND DESOM OF PALAKKAD TALUK.** **BY ADVS.SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN** ## **RESPONDENT(S)/RESPONDENT/DEFENDANT:** **------------------------------------------------------------------** **K.ARUCHAMI, S/O.PONNAN, KOZHIPPARA, PLASAMPATHY, ELAPPULLY AMSOM AND DESOM OF PALAKKAD TALUK.** **BY SRI.T.C.SURESH MENON** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.577 of 2004 ==================================== Dated this the 06[th] day of February, 2012** ## **J U D G M E N T** This Second Appeal is directed against the judgment and decree of learned District Judge, Palakkad in A.S. No.146 of 1999 confirming dismissal of O.S. No.162 of 1997 of the court of learned Munsiff, Palakkad. 2. That is a suit filed by the appellant for specific performance of Ext.A1, agreement for sale dated 21.05.1996 executed between appellant and the respondent. Respondent agreed to convey the suit property to the appellant for consideration stated therein and received Rs.10,000/- by way of advance on the date of agreement. Parties fixed 31.01.1997 as the last date for performance of the agreement. Alleging that respondent did not comply with his part of the contract, appellant laid the suit for a decree for specific performance. 3. Respondent contended that he was ready and willing to perform his part of the contract but on account of shortage of ## **R.S.A. No.577 of 2004** -: 2 :- funds appellant was not willing to take the sale deed. Trial court accepted the plea of respondent and dismissed the suit. That has been confirmed by the learned District Judge. Hence this appeal. 4. It is contended by learned counsel that courts below have not properly construed Ext.A1, agreement and that a hyper technical approach has been made. It is also contended that evidence on record is sufficient to show that appellant was ready and willing to perform his part of the contract. 5. Learned counsel for the respondent to whom notice before admission was issued contends that on the evidence on record courts below were satisfied that appellant was not willing to perform his part of the contract. Learned counsel contends that there is no specific averment in the plaint that appellant was ready and willing to perform his part of the contract and that no substantial question of law is involved so that this Court is required to admit this Second Appeal. 6. So far as readiness and willingness of the appellant is concerned there is no specific averment as such in the plaint. ## **R.S.A. No.577 of 2004** -: 3 :- But decisions on the point say that even in the absence of a specific averment to that effect it is sufficient if, on a reading of the plaint it is revealed that appellant was ready and willing to perform his part of the contract. Therefore the precise question is whether courts below are justified in concluding that appellant was not ready and willing to perform his part of the contract. 7. The time fixed for performance of the contract was 31.01.1997. On that day respondent issued Ext.A2, telegram to the appellant stating that he is ready and willing to perform his part of the contract receiving the balance sale consideration and executing the sale deed. That was followed by the appellant issuing Ext.A3, letter dated 01.02.1997 to which respondent sent Ext.A5, reply dated 07.02.1997. The stand taken by the appellant when examined as P.W1 is that respondent did not produce the encumbrance certificate and other relevant records from the Village Office to show what exactly is the property available for conveyance after the acquisition proceeding. Courts below referred to Ext.A1, and stated that there was no obligation on the part of respondent to produce all those documents at the time of execution of the sale deed and that ## **R.S.A. No.577 of 2004** ## -: 4 :- there is nothing to show that Ext.A1 created any simultaneous obligation on the respondent to produce such documents. Courts below, on a consideration of the evidence came to the conclusion that appellant was not ready and willing to perform his part of the contract. Along with that, lack of specific plea in the plaint also is to be taken into account. On hearing learned counsel on both sides I am not inclined to think that any substantial question of law is involved. 8. I must also notice that Ext.A1, agreement is dated 21.05.1996 and the outer limit for performance of the agreement was fixed as 31.01.1997. It is in 2012 that the appellant is now insisting for a decree for specific performance of sale. ## 9. The Supreme Court in **Saradamani Kandappan** **v. Rajalakshmi** (AIR 2011 SC 3234) held that the principle that time is not the essence of contract was evolved in an era where inflation was unknown and that precedents of that era may not have application now. I must also bear in mind the high inflation and the soaring land price. Therefore it is not equitable ## **R.S.A. No.577 of 2004** -: 5 :- also to allow the request for specific performance of the agreement dated 21.05.1996, in the year 2012. That also dissuades me to entertain this Second Appeal. 10. This matter was sent to the Adalath for consideration where parties had a round of talk as to whether the matter could be settled. But nothing transpired. I found that no substantial question of law as regards the finding of the courts below to grant specific performance is involved. 11. The next question is what any other relief could be granted to the appellant. Unfortunately, appellant did not alternatively pray for a decree for refund of the advance money. Learned counsel for respondent in all fairness after getting instruction agreed that respondent is prepared to return the advance sum of Rs.10,000/- with interest at the rate of 6% from 21.05.1996 till payment. That submission is recorded. 12. I stated that in the plaint there is no alternative prayer for refund of the advance amount and Section 22 of the Specific Relief Act requires such an alternative relief to be made if ## **R.S.A. No.577 of 2004** ## -: 6 :- the court is to grant refund of the advance amount. 13. But I am not inclined to think that this Court is helpless in such a situation. At least the power under Article 226 of the Constitution must come to the aid of the appellant. The Supreme Court in **Sree Jain Swetambar Terapanthi** **Vid(S) v. Phundan Singh** (AIR 1999 SC 2322) refused to interfere with an order passed by the High Court in exercise of of the power under Article 226 of the Constitution on the ground of equity and justice though there was no provision of law which enabled the High court to pass such an order. The Supreme Court observed that the order passed by the High Court did not affect the right of parties. Referring to that decision, this Court in **Gopinathan v. State of Kerala** (2012 [1] KLT SN 55 - Case No.63) held that when the parties have settled the dispute, it is open to this Court in exercise of Article 226 of the Constitution to set aside a court sale. 14. I do not find reason why that principle should not be extended to this case. True as aforesaid Sec.22 of the Act does not empower the court to pass a decree for refund of advance ## **R.S.A. No.577 of 2004** -: 7 :- amount. But respondent having agreed to pay that amount, a decree in the way he has agreed will not affect his right. I am inclined to think that such a relief is required, to work out justice between the parties. Hence I am inclined to allow that request. Second Appeal is disposed of as follows: In reversal of judgment and decree passed by the courts below, appellant-plaintiff is given a decree in O.S. No.162 of 1997 of the court of learned Munsiff, Palakkad for recovery of Rs.10,000/- (Rupees Ten thousand only) with interest at the rate of 6% per annum from 21.05.1996 till realisation from the respondent and his assets. The suit property will bear a charge for the said amount. Parties shall bear their respective costs throughout. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv