M. Shereef v. K. Kunjumon

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 RFA NO. 409 OF 2018** **AGAINST THE JUDGMENT AND DECREE IN OS 267/2011 OF SUB COURT, ALAPPUZHA** ## **APPELLANT/DEFENDANT:** M. SHEREEF,AGED 54 YEARS,S/O.MUHAMMED KUNJU, VELIMPARAMBIL, DISTRICT COURT WARD, MULLACKAL VILLAGE, SOUTH ARYAD MURI, ALAPPUZHA. BY ADVS.S.SANAL KUMAR BHAVANA VELAYUDHAN T.J.SEEMA ## **RESPONDENT/PLAINTIFF:** K. KUNJUMON,AGED 50 YEARS,S/O.MUHAMMAD KUNJU, MILAD MANZIL, DISTRICT COURT WARD, MULLACKAL VILLAGE, SOUTH ARYAD MURI, ALAPPUZHA- 688 001. BY ADVS. JAWAHAR JOSE (CAVEATOR) SRI.R.AZAD BABU SMT.REJITHA RAJAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Sathish Ninan, J. ============================== R.F.A No.409 of 2018 ========================== Dated this the 10[th] day of November, 2023** ## **JUDGMENT** The decree for specific performance of an agreement for sale is under challenge by the defendant in the suit. 2. Ext A1 agreement dated 28.10.2008 was executed between the plaintiff and the defendant. As per Ext A1, an extent of 2.63 Ares with a residential building was agreed to be conveyed by the defendant to the plaintiff for a total sale consideration of Rs.14 Lakhs. On the date of Ext A1, an amount of Rs.4 Lakhs was paid towards advance sale consideration. Further amount of Rs.35,000/- is stated to have been paid on 29.07.2009 on execution of Ext A2 receipt. The period fixed for performance is 11 months. There was a litigation pending in respect of the property, and the defendant was to take steps to have it concluded within 11 months. Within RFA No.409 of 2018 -: 2 :- 15 days after the conclusion of the litigation, the sale deed was to be executed. Alleging that the defendant is evading performance of the agreement, the suit was filed. 3. The defendant admitted execution of Ext A1 agreement and also the receipt of the advance thereunder. Though the receipt of further advance of Rs.35,000/- was denied, the execution of Ext A2 receipt was not disputed. It was contended that the defendant was under severe financial constraints which compelled him to enter into Ext A1 agreement for a low price. It was also contended that the plaintiff was not ready and willing to get the sale deed executed consequent on the pendency of the suit or apprehensive of the prospective appeal thereon. Thus, the defendant contended that the plaintiff was not ready and willing to go ahead with the agreement leading to its non-performance. RFA No.409 of 2018 -: 3 :- 4. The trial court held that the plaintiff was ready and willing to perform the agreement and that he was possessed of sufficient means to pay the balance sale consideration. Accordingly, a decree for specific performance was granted. 5. I have heard the learned counsel Sri.S.Sanal Kumar on behalf of appellant/defendant and Sri.R.Azad Babu, the learned counsel for the respondent/plaintiff. 6. The points that arise for consideration in this appeal are: - (i) Is the finding of the trial court that the plaintiff was ready and willing to perform Ext A1 agreement, supported by the evidence on record? - (ii) Has there been failure on the part of the trial court to exercise jurisdiction under Section 20 of the Specific Relief Act? - (iii) On the facts and circumstances of the RFA No.409 of 2018 -: 4 :- case, is the discretion under Section 20 of the Specific Relief Act to be exercised to grant a decree for specific performance? 7. As could be noticed from the rival pleadings mentioned above, the issue for determination is only with regard to the readiness and willingness of the plaintiff and also the exercise of discretion under Section 20 of the Specific Relief Act. 8. Ext A1 stipulates a period of 11 months for performance of the same. The pending litigation in respect of the property was to be got concluded by the defendant within the period, and within 15 days therefrom the sale deed was to be executed. It is the definite case of the defendant that the plaintiff was not ready and willing to go ahead with the agreement citing pendency of the litigation or a possible appeal therefrom. The dispute in relation to the property was with the mother of the defendant who had conveyed her RFA No.409 of 2018 -: 5 :- rights over the property to the defendant. The mother expired on March, 2011. The present suit has been filed thereafter on 10.12.2011. 9. The plaintiff was examined as PW1. In his crossexamination he has stated that, to his knowledge there was only one case between the defendant and his mother and that it related to the claim of title over the property by the mother. He deposed that on 30.06.2009 he came to know that the case was disposed of. He further deposed that, after 30.06.2009, he approached the defendant to get the sale deed executed after arranging the required amount in the bank. He further deposed that, after 30.06.2009 there was no legal impediment preventing execution of the sale deed. However, the suit was filed only on 12.10.2011, more than 2 years thereafter. Though the plaintiff claims that he came to know about the disposal of the suit on 30.06.2009 and that he had approached the defendant for execution of RFA No.409 of 2018 -: 6 :- sale deed after arranging sufficient funds in the Bank, pertinently, no notice was issued at any time before the date of suit calling upon the defendant to perform the agreement. As noticed earlier, it was the term of the agreement that within 15 days after the culmination of the litigation the sale deed is to be executed. According to the plaintiff he came to know about the disposal of the litigation on 30.06.2009. No reason is suggested as to why the plaintiff waited till 12.10.2011 to file the suit. He had not even sent a notice to the defendant calling for performance of the agreement. This is of significance since PW1 has deposed that on coming to know of the disposal of the suit, he arranged funds and asked the defendant to execute the sale deed. As noticed, there is no material to show that after 30.06.2009 till 12.10.2011 the plaintiff had made any demand to the defendant for execution of the sale deed. If the plaintiff was aware of the disposal of the suit RFA No.409 of 2018 -: 7 :- as early as on 30.06.2009 and he was ready and willing to perform the contract there is no reason why the suit was filed only on 12.10.2011. This definitely tells upon the alleged ‘readiness and willingness’ of the plaintiff to go ahead with the transaction. As contended by the defendant, the plaintiff might have been apprehensive that he would be dragged into a litigation in respect of the property if he went ahead with the transaction. It is only after the death of the mother that the plaintiff proceeded to file the suit and that too, as noticed earlier, without even sending notice calling upon the defendant to perform the agreement. Therefore, the contention of the defendant that the plaintiff was not ready and willing to perform Ext A1 agreement has force. In the absence of any material to find that the plaintiff had expressed his readiness and willingness to go ahead with Ext A1 agreement, it could only be held that the plaintiff has failed to prove his readiness and RFA No.409 of 2018 -: 8 :- willingness as mandated under Section 16 of the Specific Relief Act which is a pre-requisite for grant of a decree for specific performance. The trial court has failed to consider the above aspects. The finding of the trial court in the said regard is thus liable to be set aside and I do so. Point No.(i) is answered accordingly. 10. Before the trial court, no specific issue is seen framed with regard to the exercise of discretion under Section 20 of the Specific Relief Act. A decree for specific performance need not follow merely because it is lawful to do so. Section 20 vests in the court a discretionary jurisdiction, the discretion to be exercised on judicial principles. The trial court ought to have raised an issue with reference to Section 20 of the Specific Relief Act. In the written statement of the defendant, it was pleaded that he was in severe financial stringency since August, 2008 owing debts to RFA No.409 of 2018 -: 9 :- several persons, which made him to enter into Ext A1 agreement for a price lesser than the market value of the property. He pleaded that this is his only residence and that he has no other property. He has further pleaded that he and his wife are cancer patients undergoing treatment at the Regional Cancer Centre, Thiruvananthapuram. It was pleaded that the entire family will be thrown to streets if the decree for specific performance is granted. On such plea, the trial court ought to have raised a specific issue on the exercise of discretion under Section 20 of the Specific Relief Act and considered the same. 11. The plaintiff admittedly has 19 cents of property with a two storied building. He is presently residing in his family house. The defendant is only a street food vendor (X«pIS). The claim of the defendant that he has no other property is not denied by PW1, but has pleaded ignorance. Identical was his reply to the RFA No.409 of 2018 -: 10 :- suggestion made to him during cross-examination that the defendant and his wife are inflicted with cancer. However, he admitted that he and the defendant go to the same mosque. Therefore, in all probabilities, the plaintiff must be aware of the aforesaid facts and that is why he did not deny the suggestions made to him as above. The medical condition of the defendant and his wife are proved by Exts B8 to B10 documents. These are sufficient circumstances to exercise discretion to decline specific performance. 12. Relying on the judgment of a Division Bench of this Court in _**Mundanthara Subramanian v. Kaatholil Madhava Menon and Ors. (MANU/KE/0730/2022),**_ the learned counsel for the respondent would submit that if the grievance of the appellant is that the price of the property has shot up by the passage of time, the respondent-plaintiff is prepared to pay even double the consideration as fixed in Ext.A1 Agreement. A decree may be passed accordingly, RFA No.409 of 2018 -: 11 :- it is argued. On the findings supra with regard to the readiness and willingness and also on the exercise of discretion, the said argument does not arise for consideration at all. 13. The decree for specific performance granted by the trial court is thus liable to be interfered with both on the grounds of failure of the plaintiff to prove his readiness and willingness and also in exercise of the discretion under Section 20 of the Specific Relief Act. 14. The plaint contains an alternate prayer for return of the advance sale consideration with interest at the rate of 15 % per annum, charged on the plaint schedule property. No circumstance dis-entitling the plaintiff to get return of the advance sale consideration has been pleaded or proved. Infact, in the written statement the defendant has expressed his willingness to pay back the amount with interest though he challenged the rate of interest claimed. Necessarily RFA No.409 of 2018 -: 12 :- the plaintiff is entitled for a decree for return of advance amount with interest. 15. Coming to the rate of interest payable, on the facts and circumstances of the case and considering the banking rates of interest during the relevant period, it deemed appropriate that interest be granted at the rate of 15% on the total advance sale consideration of Rs.4,35,000/- from 29.07.2009 till date of suit, and thereafter at 9% per annum till the date of the decree, and thereafter at the rate of 6% per annum till realisation. Resultantly the appeal is allowed. The decree and judgment of the trial court is set aside. The plaintiff is granted a decree for realisation of Rs.4,35,000/with interest at the rate of 15% per annum from 29.07.2009 till the date of suit (12.10.2011) and thereafter at the rate of 9% per annum till the date of decree(10.11.2023), and thereafter at the rate of 6% per RFA No.409 of 2018 -: 13 :- annum till realisation, charged on the plaint schedule property and also from the defendant and his assets. The plaintiff shall be entitled for proportionate costs throughout. Sd/- **Sathish Ninan, Judge** vdv RFA No.409 of 2018 -: 14 :-