K.M. Sudheer Kumar v. K.M. Kishore Kumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 AS.No. 581 of 1997() -------------------OS.81/1995 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S)/DEFENDANT : -------------- K.M.SUDHEER KUMAR, SON OF MADHAVAN, AGED 40, KUNNATH HOUSE, PALARIVATTOM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.C.K.ARAVINDAKSHA MENON SRI.K.C.CHARLES SRI.A.BALAGOPALAN RESPONDENT(S)/PLAINTIFF: --------------- K.M.KISHORE KUMAR, SON OF MADHAVAN, AGED 37, KUNNATH HOUSE, PALARIVATTOM, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. ADV. SRI.B.KRISHNA MANI FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS.C.KURIAKOSE J.** ## **-----------------------A.S.No. 581 of 1997 ------------------------** Dated this the 14[th] day of November, 2008 ## **JUDGMENT** The defendant in a suit, for specific performance of a contract for sale of the immovable property and in the alternative for return of advance money and for ancillary relief of prohibitory injunction restraining alienation of the property, being aggrieved by the decree for specific performance passed against him, has preferred this appeal. The plaintiff, the defendant's own brother, is the respondent. The parties will be referred to as they were before the trial court. The case of the plaintiff was that he and the defendant entered into an agreement on 28/4/1992 (Ext.A1) whereby the defendant agreed to sell the plaint schedule property to the plaintiff for a consideration of Rs.25,000/- out of which the plaintiff readily paid Rs.1,000/- as advance The agreement was to sell the plaint schedule property to the plaintiff before the first of August 1992. According to the plaintiff, he was always ready and willing to A.S..No.581/1997 2 perform his part of the agreement, but the appellant failed to execute the sale deed as per the agreement. The defendant contended inter alia that there was no agreement for sale of the plaint schedule property and that the agreement was created by the plaintiff/respondent by making use of the signed blank paper entrusted by the appellant with the plaintiff/respondent when the appellant took a loan from the respondent. It was further contended by the defendant that the agreement in question is not specifically enforceable due to uncertainty, and that the plaintiff was not ready and willing to perform his part of the agreement as he was short of funds. It was also contended that there was inordinate delay and laches in seeking specific performance and that the agreement is not genuine and that the respondent will be given an unfair advantage over the defendant and hence the plaintiff is not entitled to have discretionary relief of specific performance in his favour. 2. On the pleadings the learned Subordinate Judge formulated the following seven issues for trial. 1). Whether the suit agreement was created at the instance of the plaintiff under the circumstnaces A.S..No.581/1997 3 stated in the written statement ? 2. Whether the suit agreement is enforceable? 3. Whether the suit property is correctly described? 4. Whether there was any agreement between the plaintiff and defendant for the purchase and sale of the plaint schedule property? 5. Whether the plaintiff is entitled to a decree for specific performance of contract for the sale of the plaint schedule property in his favour ? 6. Whether the prohibitory injunction prayed for is allowable? 7. Reliefs and costs? 3. The evidence in the case consisted of the oral testimony of the plaintiff as PW1 and Exts.A1 to A8 on the side of the plaintiff. On the side of the defendant evidence consisted of oral testimony of DW1 and Exts.B1 and B2. Exts.A1, as already stated, was the agreement itself and Ext.A2 was a copy of the letter sent to the defendant by the plaintiff. Ext.A3 is postal certificate pertaining to Ext.A2. Ext.A4 dated 30/7/1992, is a A.S..No.581/1997 4 copy of another letter sent by the plaintiff to the defendant. Ext.A5 is the postal certificate pertaining to Ext.A4. Ext.A6 is a copy of the lawyer notice sent to the defendant. Ext.A7 is acknowledgment card signed by the defendant. Ext.A8 is a copy of the Will deed. Ext.B1 is copy of the sale deed No.3394/92 dated 1/8/1992. Ext.B2 dated 17/10/1994 is the original of Ext.A6. 4. The learned Subordinate Judge, on an evaluation of the evidence and on consideration of issue Nos. 1 to 4 together, would answer those issues in favour of the plaintiff. Resultantly the suit was decreed for specific performance and a decree for permanent prohibitory injunction was also passed restraining the defendant from alienating his right over the property or otherwise disposing of his right over the plaint schedule property to anybody other than the plaintiff and from inducting strangers into the possession of the properties and from changing the nature and lie of the property and encumbering the property by virtue of a permanent prohibitory injunction. 5. I heard the submissions of Sri.K.C.Charles, learned counsel for the appellant and also those of Sri. K.P.Dandapani 5 A.S..No.581/1997 learned senior counsel for the respondent. Later Sri.B.Krishnamani entered fresh appearance on behalf of the respondent in place of Sri.Dandapani and I have heard him also. Sri.K.C.Charles argued that Ext.A1 agreement is not enforceable in law since the subject matter of Ext.A1 as well as the suit is absolutely vague and uncertain. The subject matter of Ext.A1 is not capable of being made certain. The learned counsel pointed out that from Ext.A1, it is not possible to understand that the property agreed to be assigned. Sri.Charles submitted that Ext.A1 does not show the extent or boundaries of the property and that terms of Ext.A1 are so uncertain that the same cannot be in force. The learned counsel further submitted that the facts of this case will show that it was not at all proper to have exercise the discretion of the court under Section 20 in favour of the plaintiff. The counsel pointed out that there was inordinate delay and even willful laches on the part of the plaintiff in seeking specific performance of Ext.A1 and for that reason itself specific performance could have been declined. Sri.Charles further submitted that the plaintiff had not proved that he was having the financial ability to pay the balance sale consideration at the A.S..No.581/1997 6 relevant time and that the evidence adduced by DW-1 was not properly considered by the court below and this has resulted in prejudice to the appellant/ defendant. Sri.Charles submitted that even as the present decree is subsisting, a suit for partition was instituted before the Munsiff Court including the plaint schedule property in this case also and a preliminary decree for partition has now been passed in favour of the respondent. The institution of the fresh suit and passage and obtainment of preliminary decree itself is a reason for setting aside the decree impugned in this appeal, so submitted Sri.Charles. The learned counsel would fortify his submission that the authority of the judgment of this court in **Kandamath Cine Enterprises (P) Ltd. v. John Philipose** (1990 (1) KLT S.N.24 (page 23). Sri.Charles also relied on the judgment of a Division Bench of this court in **Aliyas v. Aboobacker** (2006 (4) KLT 282). 6. Sri.K.P.Dandapani, learned senior counsel would resist all the submissions of Sri. Sri.K.c.Charles. According to him, the findings of the learned Subordinate judge are properly founded on the evidence which was available in the case and there was no warrant for interfering with those findings at all. It will be A.S..No.581/1997 7 noticed now that a learned Judge of this court Sri.K.Padmanabhan Nair,(J) who had occasion to consider this appeal earlier, referred this appeal to the daily Lok Adalath conducted in this court. The Lok Adalath by its order dated 21/5/2008 referred the case back to the court observing that there is no likelihood of settlement. I, after hearing Sri.Charles and Mr.Dandapani for some time thought it fit to explore the possibility of a settlement between the parties once again and accordingly passed the following order on 20/6/2008. “On hearing the learned counsel, I though it fit to explore the possibility of a settlement between the parties. Sri.K.C.Charles, the learned counsel for the appellant, submitted that the appellant will be prepared to pay a sum of Rs.15,000/- which means that the appellant is ready to pay much more than the amount which was claimed by the plaintiff respondent as per the alternative prayer in the plaint. The respondent is directed to consider this A.S..No.581/1997 8 proposal. Post on 27/6/2008 at 1.45. “ 7. The counsel for the respondent after consulting the respondent would inform me that the respondent is unwilling to receive Rs.15,000/- in settlement of the plaint claim. I, therefore suggested to the appellant that, the appellant pays a sum of Rs.25,000/- which significantly is the total sale consideration payable by the respondent to the appellant under Ext.A1. This suggestion was accepted by the appellant and accordingly on 3/9/2008, I passed the following order: “It is submitted on behalf of the counsel for the appellant that the appellant has at last become willing to pay a sum of Rs.25,000/- to the respondent in full and final settlement of the respondent's claims. Learned counsel for the respondent is directed to appraise the respondent of this offer and report whether the respondent is agreeable to receive the amount in full settlement. Post after Onam holidays”. 8. Neither on 14/10/2008 nor on 20/10/2008, the next A.S..No.581/1997 9 posting date of the appeal, the respondent was present. Accordingly, on 20/10/2008, I directed the respondent to be present in the court at 1.45 p.m. on 28/10/2008. By this time it was reported on behalf of the learned senior counsel Sri.K.P.Dandapani that, Sri.Dandapani is no longer engaged in this case and that Sri.B.Krishnamani is the counsel appearing for the respondent. On 28/10/2008 Sri.K.C.Charles learned counsel for the appellant submitted that the appellant is ready and willing to accept the compromise suggested by the court. But Sri. Krishnamani submitted that his client is not in a mood to accept the compromise at all. Accordingly, Sri. Krishnamani was asked to submit further arguments for the respondent and Sri.Krishnamani would resist all the submissions of Sri.Charles in the appeal. According to him there was absolutely no warrant for interfering with the impugned judgment and decree. The parties were never in dispute or doubt regarding the identity of the suit property. According to Sri.Krishnamani delay can never be a ground for refusing specific performance and for this proposition Sri.Krishnamani relied on the judgment in K **ochunni Muhammed v. P.A.Abdarahimankutty** (1953 KLT 420). Sri. A.S..No.581/1997 10 Krishnamani relied on the judgment in **M.L.Devender Singh and others v. Syed Khaja** (AIR 1973 Supreme Court 2457) and in **Meethian Naina Kunhipokkarukutty v. Meethian Naina Abdurahiman** (1995 T.C.Series 620) In support of the argument that the provision in the contract for payment of liquidated damages is no bar to grant specific performance. Sri.Krishnamani would read over to me passages from the pleadings of the parties, Ext.A1 agreement and the testimony of DW1 and argue that the argument of the plaintiff that Ext.A1 is vague is only a new found wisdom to get away from the decree which has been validly passed by the trial court on the basis of the evidence adduced by the parties. He would handover to me a sketch and submit that the sketch shows the suit property correctly and that there is no scope for any legitimate contention that the property which is subject matter of Ext.A1 is vague. 9. I have considered the rival submissions addressed at the Bar. It is beyond controversy that jurisdiction of the court to decree specific performance is discretionary and that the court is not bound to grant decree for specific performance merely because it is lawful to do so. It is trite that even if it is lawful to A.S..No.581/1997 11 grant decree for specific performance, the court need not do so on exercising the discretion in the manner indicated in Section 20 of the Specific Relief Act. If the court comes to the conclusion that correct exercise of the discretion is not to decree specific performance, the decree will not be granted. On reading through the impugned judgment it appears to me that the learned Subordinate Judge was under impression that discretion under Section 20(2)(a) is not to be exercised in favour of the party who raises unsustainable contentions. In the instant case it was contended by the defendant that he has not executed Ext.A1. That contention fell to the ground in the teeth of the evidence which came on record. The court below, it appears, thought that the defendant, who had gone to the extent of denying the very existence of Ext.A1, is not entitled to turn around and contend later that the discretion under Section 20 should be exercised in his favour. A Division Bench of this court in Aliyas v. Abbobacker(supra) has very clearly held after a survey of the various authorities that it cannot be said as a universal Rule that the defendant would be precluded from contending that discretion should be exercised not to decree A.S..No.581/1997 12 specific performance or in other words discretion should not be exercised to decree specific performance, only because his defence is either unsustainable or not proved or false or because the court found it to be so. The Court has to consider all the facts and circumstances of the case in order to decide in which way the discretion under clause (a) of sub section (2) of Section 20 should be exercised. 10. Sri.Krishnamani is certainly right when he submits that the plea that Ext.A1 contract is void for uncertainty under Section 29 of the Contract Act was not seriously perused by the appellant before the Trial Court. But this court has held in Kandmath Cine Enterprises(P) Ltd.'s case (supra) that new plea being pure question of law can be raised for the first time at the appellate stage. Ext.A1 does not show the extent and boundaries of the properties and for these two reasons it will be very difficult for the court to identify the property correctly when it endeavors to execute a sale deed pursuant to the decree for specific performance. Of course, Sri.Krishnamani facing the above situation, submitted that the suit be remanded to the trial court giving an opportunity to the plaintiff to amend the pleadings. A.S..No.581/1997 13 According to me, it will not be in the interest of justice to permit the respondent/ plaintiff to amend the pleadings. It is doubtful whether even amendment of the pleadings will enable the plaintiff to get over the inherent blemish in Ext.A1 suit agreement that it does not identify its subject matter correctly. 11. As already indicated the alternative prayer in the plaint was that a decree for recovery of the advance amount of Rs.1,000/- to be passed against the defendant together with interest at the rate of 18% p.a. According to me, on a proper exercise of the discretion of the court under clause (a) of sub section 2 of Section 20 of the Specific Reliefs Act the court should have disallowed the prayer for specific performance and should have granted the alternative prayer. The ambiguity in the matter of description of the suit property in Ext.A1 and in the plaint which is prepared in terms of Ext.A1 itself could have been justification for the adoption of such a course. Moreover, the submission of Sri.Charles that even during the subsistence of the present decree and the pendency of this appeal, a suit for partition has been filed and a preliminary decree for partition is passed in respect of the suit property in this case also was not A.S..No.581/1997 14 disputed before me. I take that circumstance also into account. The result therefore is that the judgment and decree under appeal will stand set aside. The suit will stand decreed for some of Rs.1,000/-. The appellant is directed to pay the above amount to the respondent within two weeks of receiving a copy of the judgment, failing such payments the amount will carry interest a the rate of 18 % per annum from the date of the suit till the date of realisation. The appellant will also be liable to pay the cost on the trial side to the respondent. But the parties will suffer their costs in this appeal. It is needless to mention that the amounts decreed as above will be charged on the plaint schedule property by virtue of Section 55 (6)(b) of the T.P.Act. ## **PIUS.C.KURIAKOSE,JUDGE** dpk A.S..No.581/1997 15 PIUS C.KURIAKOSE, J. ----------------------A.S. NO.581 OF 1997 ## JUDGMENT 14TH NOVEMBER 2008