K.G. Joseph v. P.J. Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **AS.No.197 OF 1997(G)** **AGAINST THE JUDGMENT & DECREE IN OS 302/1992 DATED 15-10-1996 OF PRINCIPAL SUB COURT,KOCHI** ## **APPELLANT/DEFENDANT NO.1:** **1 K.G.JOSEPH, S/O.GEORGE, RESIDING AT CC 1/344, ROSE STREET,FORT COCHIN (DIED LRS IMPLEADED) ADDL. FLEMMY JOSEPH, W/O.LATE K.G.JOSEPH, A2 ROSE STREET,FORT KOCHI, (DIED,LRS IMPLEADED) LEGAL HEIR OF DECEASED A1 IS IMPLEADED AS ADDITIONAL APPELLANT A2 VIDE ORDER DATED 19.12.18 IN IA 2077/2004 ADDL. SOBHA,D/O.K.G.JOSEPH, RESIDING AT 'THEKKEVEETTIL', A3 EDVANAKADU. LEGAL HEIR OF DECEASED ADDL.A2 (WHO DIED ON 30.1.2010) IS IMPLEADED AS ADDITIONAL APPELLANT A3 VIDE ORDER DATED 16.11.18 IN IA 1996/10** **BY ADVS. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL** ## **RESPONDENTS/PLAINTIFF AND SECOND DEFENDANT:** **1 P.J.ANTONY, RESIDING AT CC.1/1045, FORT COCHIN, COCHIN-1 (DIED.LRS IMPLEADED) 2 P.V.METREENJ, RESIDING AT CC 1/345, PRINCESS STREET, FORT COCHIN, COCHIN-1 ADDL. MRS.KURISTA ANTONY (WIFE), R3 C.C.NO.1/1045, KUNNAMPURAM ROAD, KOCHI-1 (DIED LRS RECORDED)** A.S.197 & 528/1997 2 **ADDL. P.A.XAVIER, (SON), C/O. MRS.MARYKUTTY XAVIER, R4 HOUSE NO.16/888,INDIRA ROAD, THOPPUMPADY, KOCHI-5, (DIED LRS IMPLEADED)** - **ADDL. P.A.JOHN (SON), R5 C.C.NO.1/1045, KUNNUMPURAM ROAD, KOCHI-1 ADDL. MRS.JULIET, C/O.MRS.KURISITA, C.C.NO.1/1045, R6 KUNNUMPURAM ROAD, KOCHI-1** - **ADDL. MRS.SHEEBA, C/O.MRS.KURISITA, C.C.NO.1/1045, R7 KUNNUMPURAM ROAD, KOCHI-1** - **ADDL. MRS.SEENA METRENNJ, R8 C/O.MRS.KURISITA, KOCHI-1, C.C.NO.1/1045,KOCHI-1** **ADDL. MRS.P.A.JUSTIN, R9 C/O. MRS.KURISITA ANTONY, C.C.NO.1/1045, KUNNUPURAM ROAD, KOCHI-1 (STRUCK OFF) THE NAME OF 9TH RESPONDENT IS STRUCK OFF FROM THE ARRAY OF RESPONDENTS AT THE RISK OF THE PETITIONER AS PER ORDER DATED 2/8/2000 IN CMP NO.3888/2000.** **LRS OF DECEASED R1 ARE IMPLEASED AS ADDITIONAL RESPONDENT R3 TO R9 VIDE ORDER DT.16.11.18 IN CMP1373/98** **ADDL. FATHIMA, W/O.LATE P.A.XAVIER, C/O. MRS.MARUKUTTY R10 XAVIER, HOUSE NO.16/888,INDIRA ROAD, THOPPUMPADY, KOCHI-5** **ADDL. TEENA, D/O.LATE P.A.XAVIER, R11 C/O. MRS.MARUKUTTY XAVIER, HOUE NO.16/888,INDIRA ROAD, THOPPUMPADY, KOCHI-5.** **ADDL. TEEMA, D/O.LATE P.A.XAVIER, R12 C/O. MRS.MARUKUTTY XAVIER, HOUSE NO.16/888, INDIRA ROAD, THOPPUMPADY , KOCHI-5. LEGAL HEIRS OF DECEASED R4 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 10 TO 12 VIDE ORDER DT 16.11.18 IN IA 1099/2009. RESPONDENTS 4 TO 12 ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED ADDL.3RD RESPONDENT VIDE ORDER DATED 16.11.18 IN IA 1098/2009** A.S.197 & 528/1997 3 **R1, R2, ADDL. R3, R5 & R6 BY ADV. P.K.RAVINDRAN R1 BY ADV. SMT.JAYASREE MANOJ R2 BY ADV. SMT.SIBA TRESA R1 BY ADV. SRI.B.J.YESUDAS** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02-09-2019, ALONG WITH AS.528/1997(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S.197 & 528/1997 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **AS.No.528 OF 1997(G)** **AGAINST THE JUDGMENT IN OS 300/1993 DATED 15-10-1996 OF PRINCIPAL SUB COURT, KOCHI** ## **APPELLANT/PLAINTIFF:** |**1**|**K.G.JOSEPH (DIED)**| |---|---| ||**S/O. GEORGE, RESIDING AT 1/344, ROSE STREET,**| ||**FORT COCHIN.**| |**ADDL.**|<br>**FLEMMY JOSEPH, (DIED LRS IMPLEADED)**| |**A2**|**W/O. LATE K.G JOSEPH, ROSE STREET, FORT KOCHI**| ||**ADDL. APPELLANT 2 IS IMPLEADED AS THE LEGAL**| ||**REPRESENTATIVE OF THE DECEASED APPELLANT NO. 1 VIDE**| ||**ORDER DATED 27-07-2004 ON I.A NO. 2284/2004.**| ||**ADDL. A3 IMPLEADED**| |**ADDL.**|<br>**SOBHA, D/O. LATE K.G. JOSEPH,**| |**A3**|**RESIDING AT 'THEKKEVEETTIL',**| ||**EDAVANAKADU.**| **LEGAL HEIR OF DECEASED ADDL. A2 IS IMPLEADED AS ADDITIONAL APPELLANT 3 VIDE ORDER DATED 16.11.2018 IN I.A. 2004/2010.** **BY ADVS. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.BIJU M.JOHN SRI.P.GOPAL SRI.B.MURALEEDHARAN SRI.P.G.PARAMESWARA PANICKER (SR.)** A.S.197 & 528/1997 5 ## **RESPONDENT/DEFENDANT:** **1 P.J.ANTONY, RESIDING AT 1/1045, KUNNUMPURAM ROAD, FORT COCHIN (DIED – LRS IMPLEADED) ADDL. MRS. KURISITA ANTONY, (WIFE) R2 C.C NO.1/1045, KUNNUMPURAM ROAD, KOCHI-1 (DIED. LRS RECORDED) ADDL. P.A XAVIER (SON), R3 C/O.MRS. MARUKUTTY XAVIER, HOUSE NO. 16/888, INDIRA ROAD, THOPPUMPADY, KOCHI-5 (DIED LRS IMPLEADED) ADDL. P.A JOHN (SON) R4 C.C NO. 1/1045, KUNNUMPURAM ROAD, KOCHI-1. ADDL. MRS. JULIET, C/O. MRS. KURISITA, C.C NO. 1/1045, R5 KUNNUMPURAM ROAD, KOCHI-1. ADDL. MRS. SHEEBA, R6 C/O. MRS. KURISITA, C.C NO. 1/1045, KUNNUMPURAM ROAD, KOCHI-1 ADDL. MRS. SEENA METREENJ, R7 C/O. MRS. KURISITA, C.C NO. 1/1045, KOCHI-1. ADDL. MRS. P.A JUSTIN, R8 C/O. MRS. KURISITA ANTONY, C.C NO. 1/1045, KUNNUMPURAM ROAD, KOCHI -1 (STRUCK OFF)** **THE NAME OF THE 8TH RESPONDENT IS STRUCK OFF FROM THE ARRAY OF PARTIES AT THE RISK OF THE PETITIONER AS PER ORDER DT 8-8-2000 IN CMP NO. 4064/2000.** **LRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS R2 TO R8 AS PER ORDER DT 19/12/18 IN CMP 732 OF 1998.** **ADDITIONAL RESPONDENTS 9 TO 11 IMPLEADED.** A.S.197 & 528/1997 6 **ADDL. FATHIMA, R9 W/O. LATE P.A XAVIER, C/O. MRS. MARYKUTTY XAVIER, HOUSE NO. 16/888, INDIRA ROAD, THOPPUMPADY, KOCHI-5.** **ADDL. TEENA, R10 D/O. LATE P.A XAVIER, C/O. MRS. MARYKUTTY XAVIER, HOUSE NO. 16/888, INDIRA ROAD, THOPPUMPADY, KOCHI -5. ADDL. TEEMA, R11 D/O. LATE P.A XAVIER, C/O. MRS. MARYKUTTY XAVIER, HOUSE NO. 16/888, INDIRA ROAD, THOPPUMPADY, KOCHI-5.** **LRS OF DECEASED R3 ARE IMPLEADED AS ADDITIONAL R9 TO R11 VIDE ORDER DATED 16-11-2018 IN IA 1225/2009.** **RESPONDENTS 4 TO 11 ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED ADDL. 2ND RESPONDENT VIDE ORDER DATED 16-11-2018 IN IA 1227/2009.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02-09-2019, ALONG WITH AS.197/1997(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S.197 & 528/1997 7 ## **JUDGMENT** **[ AS.197/1997, AS.528/1997 ]** The plaintiff in O.S. No. 300 of 1993 on the file of the Subordinate Court, Kochi is the appellant in A.S. No. 528 of 1997. The defendant in O.S. No. 302 of 1992 on the file of the same court is the appellant in A.S. No. 197 of 1997. O.S. No. 300 of 1993 was filed by the plaintiff for mandatory injunction as well prohibitory injunction against the defendant. O.S. No. 302 of 1992 was filed for specific performance of contract. The court below by a common judgment and decree dated 15.11.1996 dismissed O.S. No. 300 of 1993 and decreed O.S. No. 302 of 1992. The said verdict is under challenge in these appeals. A.S.197 & 528/1997 8 2. The trial court disposed of both the cases by a common judgment treating O.S. No. 302 of 1992 as the main case. The parties are referred to as per their status in the main case. 3. The facts of the case in a nutshell are as follows: 4. The plaintiff has filed the main suit for specific performance of the contract pursuant to an agreement dated 1.6.1992. The defendant is the owner of a building comprised of three rooms on the ground floor and two halls on the first floor. The defendant agreed to alienate the same to the plaintiff for a total sale consideration of Rs.2,00,000/- and thereby the plaintiff was put in possession of the same. Out of the same, Rs.80,000/- was paid as advance and initially the period fixed for performance of the contract was extended till A.S.197 & 528/1997 9 27.10.1992. Though the plaintiff was ready and willing to purchase the plaint schedule property by paying the balance sale consideration, the defendant failed to perform his part of contract and hence the suit. 5. The 1[st] defendant had admitted the agreement dated 1.6.1992 to sell the property as well the receipt of Rs.80,000/- as advance. He had also admitted that the possession of the property was handed over to the plaintiff by allowing to make some renovations in the building. But the plaintiff had made extensive damages under the guise of renovation and dismantled and removed the wooden articles and thus caused damages to the building .The plaintiff was not having sufficient money to pay the balance sale consideration. Though the plaintiff had presented the draft sale deed, it was not in conformity with the sale agreement. A.S.197 & 528/1997 10 The failure on the part of the plaintiff to perform the contract dis entitle him from getting a decree for specific performance, was the stand taken by 1[st] defendant . 6. Before the court below, the wife of the plaintiff was examined as PW1 and Exts. A1 to A5 were marked. The 1[st] defendant/plaintiff in O.S.300/1993 was examined as DW1 and Exts. B1 to B6 were marked. Exts. C1 series and C2 series were also marked. 7. The court below, on evaluation and appreciation of the evidence, decreed the suit for specific performance with costs and dismissed the injunction suit with costs. The 1[st] defendant in the main suit ie in O.S. No. 302 of 1992 is the appellant in A.S 197/97. The plaintiff in O.S.300/93 is the appellant in A.S 528/97 . 8. Heard both sides. A.S.197 & 528/1997 11 9. The plaint schedule property consists of the eastern rooms of a building. More precisely, it is the three rooms on the ground floor and two rooms of the upstair portion of the building So, the plaint schedule property is five rooms of the building bearing No.1/348 of Cochin Corporation. Ext. A1 is the sale agreement. In fact the sale agreement was executed by the plaintiff for his son-in-law who is arrayed as the second defendant in O.S. 302 of 1992. It is pertinent to note that in the suit for specific performance which was treated as the main suit by the court below, the 1[st] defendant had raised a contention that the amount of Rs.80,000/- received on execution of Ext.A1 sale agreement was not the advance amount, but it was the amount paid for various other purposes. But, in the appeal the learned A.S.197 & 528/1997 12 counsel for the defendant admitted that the receipt of Rs.80,000/- was the advance amount pursuant to the sale agreement. Hence, it is not necessary to probe into that aspect and the amount of Rs.80,000/- has to be treated as the advance amount received by the 1[st] defendant pursuant to the sale agreement. It is also to be noted that Ext.A1 agreement is not in dispute. Therefore, the question to be looked into is whether the plaintiff was ready and willing to purchase the property as alleged by him or whether he had committed breach of contract as contended by the 1[st] defendant. The definite contention raised by the 1[st] defendant is that the second defendant for whom the agreement was executed by the plaintiff, was not having sufficient funds with him to pay the balance sale consideration of Rs.1,20,000/-. Apart from the said contention, it was also contended that A.S.197 & 528/1997 13 though the plaintiff had handed over two draft sale deeds pursuant to the agreement, those draft deeds were not in conformity with the agreement to sell and that will also establish that the plaintiff was not ready and willing to perform his part of the contract. 10. As mentioned above, the sale agreement was executed by the plaintiff on behalf of the 2[nd] defendant who was employed abroad. According to the learned counsel for the first defendant, after execution of the agreement, the possession of the property was handed over to the plaintiff with an understanding to make certain renovations in the building. It was also pointed out by the learned counsel for the 1[st] defendant that on the back side of the two rooms on the ground floor, a portion which belongs to the defendant, there was a common wall which would separate the plaint A.S.197 & 528/1997 14 schedule property as well the rooms owned by him. When renovation was carried out by the plaintiff, extensive damages were caused to the 1[st] defendant's building and the safety of the entire building was also affected due to the damages caused to the demarcating wall that separated the rooms owned by the defendant. He also testified that the plaintiff made several unauthorised additions and alterations in the building causing extensive damages to the building. But the evidence on record would indicate that the work were done with consent and knowledge of the 1[st] defendant and that too as per the terms of the agreement. 11. The definite case of the 1[st] defendant is that there is no definite averment and pleading as regards the continued readiness and willingness to pay the balance sale consideration. In other words, the plaintiff was not having A.S.197 & 528/1997 15 sufficient funds so as to pay the balance sale consideration and thus the contract was not materialized. It is pertinent to note that PW1 who was examined to prove the case was not the plaintiff, but it was his wife. Of-course the wife of the plaintiff is competent to give evidence on behalf of her husband under Section 120 of the Indian Evidence Act. But ,the property was intended to be purchased for the 2[nd] defendant. He was also not examined before the court. So, the oral evidence of PW 1 alone was available to prove that the 2[nd] defendant was always ready and willing to perform his part of the contract and had sufficient funds to pay off the balance sale consideration. According to PW1, the 2[nd] defendant was employed in Doha and he was having sufficient funds to pay the balance sale consideration of Rs.1,20,000/-though he was aged only 22 years at that point of time. According to A.S.197 & 528/1997 16 her, he was drawing an amount of Rs.35,000/- per month and he was maintaining an NRI account in Fort Kochi Branch of Canara Bank and amount was available in his account to pay the balance sale consideration. But it is significant to note that no document had been produced by the plaintiff to show that he was financially sound and was having sufficient funds with him at the crucial time to pay the balance sale consideration. The time for execution of the sale deed was admittedly extended up to 27.10.1992. The plaintiff did not care to produce reliable evidence to prove that the 2[nd] defendant was having sufficient funds with him in his NRI account to pay the balance sale consideration. She ought to have produced documents, to substantiate the contention when she was having a definite case that the 2[nd] defendant was maintaining an NRI account in the Fort Kochi Branch of Canara A.S.197 & 528/1997 17 Bank. When the 1[st] defendant had a definite contention that the 2[nd] defendant had no funds to pay the balance sale consideration, no doubt the burden is upon the plaintiff, to prove that the 2[nd] defendant was having sufficient funds in his account to pay the balance sale consideration or he could safely arrange the same within the stipulated time. The mere statement of PW1 that the 2[nd] defendant was having money with him and he was ready to pay the balance sale consideration within the time fixed as per the agreement was not sufficient to enter into a finding that he was having sufficient funds in his account to pay the balance sale consideration. The finding of the court below that no adverse inference can be drawn as means was not challenged is without any merits and it has to be discarded in toto. The plaintiff did not adduce evidence to substantiate that the 2[nd] A.S.197 & 528/1997 18 defendant for whom the property was proposed to be purchased by the plaintiff was having sufficient funds with him to pay the balance sale consideration of Rs.1,20,000/-. The availability of required funds is definitely a strong piece of material to establish the readiness on the part of the 2[nd] defendant. It may not be necessary in all cases that the party must establish that he had always in his possession the required funds from the date of agreement till the execution of the sale deed or till the date of decree. Specific performance being an equitable remedy, condition precedent of readiness and willingness has to be specifically pleaded and proved by the buyer for enforcement of specific performance (see K.Prakash v. B.R.Sampath kumar (2015 (1)S C C 597). Though it is not necessary to prove that the balance amount is ready in his hands, the evidence must be to the effect he is having the A.S.197 & 528/1997 19 capacity to raise funds. But here the situation is slightly different. The definite case was that the amount was ready in deposit in the NRI account of the 2[nd] defendant. Such being the case the absence of records to substantiate the said plea is fatal to case of the plaintiff and such a situation would support the the contention of the 1[st] defendant that the plaintiff was not ready to purchase the property. 12. The next point argued by the learned counsel for the 1[st] defendant is that though two draft sale deeds were prepared by the plaintiff and forwarded to the first defendant so as to draft the sale deed, it was not in conformity with the original agreement. In Ext. B5 dated 27.10.1992, the name of the purchaser and more precisely the name of the 2[nd] defendant, the purchaser was not mentioned. It was also pointed out by the learned counsel for the 1[st] defendant that A.S.197 & 528/1997 20 the property description shown in Ext. B5 does not tally with Ext.A1 agreement and that the sale consideration shown in the document was also different. As per the agreement, the total sale consideration was Rs.2,00,000/- whereas in the draft sale deed, it was shown as Rs.1,00,000/-. So also, it is to be noted that in Ext.B6, the schedule of property described was different and the total sale consideration was also different though the name of the 2[nd] defendant had been mentioned. Therefore, the drafts prepared were not in conformity with the agreement. That will also remain as a circumstance against the readiness pleaded on the part of the plaintiff . 13. In short, a person who approach the court for a decree for specific performance of the contract, is supposed to prove that he was always ready and willing to perform the A.S.197 & 528/1997 21 essential terms of the contract which are to be performed by him So, I find merit in the argument advanced by the learned counsel for the 1[st] defendant that an interference with the judgment is highly inevitable. The finding of the court below that the breach was committed by the 1[st] defendant is without any merits and it could correctly be concluded that there was failure on the side of the plaintiff to prove that the 2[nd] defendant was ready and willing to perform his part of the contract. All the facts stated above would go to show that breach had been committed by the plaintiff which would dis entitle him from getting a decree for specific performance of the contract on behalf of the 2[nd] defendant. No relief was sought for return of the amount advanced and it is evident that there was some other transaction or arrangements between the parties. The plaintiff was put in possession of the A.S.197 & 528/1997 22 property involved but at the same time there was an allegation of trespass beyond the area. So, whether the plaintiff seeking equitable relief of specific performance had approached the court with clean hands, is also doubtful. 14. The 1[st] defendant is the plaintiff in O.S. No. 300 of 1993. He could not adduce satisfactory evidence to prove that the defendant therein had removed the windows and doors of the building under guise of renovation, so as to grant a decree for direction to restore the same as prayed for. Hence, I find that the plaintiff in that suit has not established his case for mandatory injunction by adducing reliable and cogent evidence. Therefore, the finding of the court below that O.S. 300 of 1993 is liable to be dismissed warrants no interference. A.S.197 & 528/1997 23 Accordingly, A.S. No. 197 of 1997 is allowed and the judgment and decree in O.S. No. 302 of 1992 is set aside. A.S. No. 528 of 1997 is dismissed confirming the judgment and decree in O.S. No. 300 of 1993. The parties are directed to bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** sb A.S.197 & 528/1997 24 ## **APPENDIX OF AS 197/1997** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A** **PHOTOSTAT COPY OF THE WILL 04-04-1999 EXECUTED BY LATE K.G.JOSEPH** ## **ANNEXURE-B** **PHOTOSTAT COPY OF THE REGISTERED WILL NO.271 OF 2006 DATED 10.11.2006 OF THE SUB REGISTER'S OFFICE MATTANCHERrY.** **//true copy//** **Sd/-** **P.S. To Judge**