Manojkumar Kalathil v. K. Fousi and K. Fasila

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 RFA NO. 509 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN OS 73/2007 OF II ADDITIONAL SUB COURT, KOZHIKODE ``` ## **`APPELLANT/PLAINTIFF:`** ``` MANOJKUMAR KALATHIL AGED 40 YEARS S/O VASUDEVAN MOOSAD, KALATHIL VEEDU,, CHATHAMANGALAM. ``` ``` BY ADVS.SRI.A.P.CHANDRASEKHARAN (SR.) SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON SRI.G.UNNIKRISHNON ``` ## **`RESPONDENTS/DEFENDANTS:`** ``` 1K.FOUSI,AGED 36 YEARS D/O KOLASSERI MAMMED HAJI, LECTURER,ARAFA HOUSE, VALAYANADU AMSOM DESOM, KOZHIKODE DISTRICT. 2K.FASILA AGED 29 YEARS D/O.KOLASSERI MAMMED HAJI, ARAFA HOUSE, VALAYANADU AMSOM,, DESOM, KOZHIKODE TALUK. REPRESENTED BY P/A HOLDER, K.PATHEYI, AGED 66 YEARS W/O.KOLASSERI MAMMED HAJI, ARAFA HOUSE, VALAYANADU AMSOM DESOM,KOZHIKODE. BY ADVS.SRI.N.P.SAMUEL SRI.P.M.HARRIS ``` ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2019, THE COURT ON 25.05.2023 DELIVERED THE FOLLOWING: ``` R.F.A. No. 509 of 2008 ## -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 509 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of May, 2023 ## **JUDGMENT** The appellant is the plaintiff in the Suit filed as O.S.No.73/2007 before II Additional Subordinate Judges Court, Kozhikode seeking for a decree of specific performance of an agreement for sale executed with the mother of the respondents/defendants as their Power of Attorney Holder, on 08.08.2005. 2. For brevity, the appellant and the respondents will hereinafter be referred to as the plaintiff and the defendants. 3. The conspectus of the facts in the above suit are stated hereunder: An agreement for sale whereby an extent of 30 cents of property comprised in Sy.No. 1281/2 of Valayanad Village with machinery installed therein belonging to the respondents and specifically described in the schedule appended to the plaint was agreed to be conveyed to the plaintiff for a total ## R.F.A. No. 509 of 2008 -:3:- sale consideration of Rs.21,00,000/-. Rs.10,000/- was paid by the plaintiff as advance sale consideration and a period of one year was fixed for execution of the sale deed. As per the stipulations in the agreement, the defendants should satisfy all preconditions to facilitate the proposed sale and make available for perusal all relevant documents indicative of his title in respect of the plaint schedule properties before 31.07.2006 and to get the sale deed executed and registered. On 15.12.2005 on the assurance of the defendants that they would act in accordance with the terms of the agreement for sale, Rs.2,00,000/- was also paid by the plaintiff towards balance sale consideration. The plaintiff had always been ready and willing to pay the balance sale consideration and to have the sale deed executed and registered. But, the defendant was not ready to do his part. They were not even ready to measure out the property to convince the plaintiff about its extent and thereby committed breach of contract. On 22.01.2006 the defendants alongwith their mother visited the property and tried to cut down coconut trees and also to remove the machineries installed ## R.F.A. No. 509 of 2008 -:4:- there. Thereupon, the plaintiff filed O.S.No.34/2006 before Munsiff's Court-II, Kozhikode seeking for an order of permanent prohibitory injunction restraining the defendants from committing waste and mischiefs in the plaint schedule property which allegedly the latter threatened to commit. 4. Plaintiff came to know that on 10.02.2007 there was an attempt from the part of the defendant to alienate the plaint schedule property to one Mr.Sunil Dutt and thus to defeat the proposed sale as per the agreement for sale and execution of the sale deed in his favour. The said information also led to the filling of the above suit. As an alternative relief, return of the advance amount was also sought in the suit. 5. The defendants were represented in the suit by their mother as Power of Attorney Holder and she filed the written statement denying all the averments in the plaint. It was contended that the plaintiff actually wanted one year time for the transaction proposed by the agreement for sale to be completed. The Power of Attorney Holder had demanded the plaintiff to pay Rs.5,00,000/- towards advance ## R.F.A. No. 509 of 2008 -:5:- sale consideration with a view to facilitate eviction of the occupants of the match factory situated in the plaint schedule property and run by them. 6. It was the plaintiff who left the space in the agreement for sale for writing the amount of advance, unfilled. Rs.10,000/- was paid and the balance of Rs.9,90,000/- was assured to be paid after one month and before 10.11.2005. Believing the assurance to pay the balance advance sale consideration the agreement for sale was signed by the Power of Attorney Holder of the defendants. The plaintiff did not abide by the promise to pay the balance amount towards the agreed advance sale consideration and on account of his default in doing so, the defendants were made to suffer much difficulties and prevented from settling the issues with the occupants of the match factory and to get them evicted from the plaint schedule property. Thus they were constrained to withdraw from the contract and therefore, Rs.10,000/- received towards advance sale consideration was returned by post to the plaintiff. Though taken for service, the plaintiff did not ## R.F.A. No. 509 of 2008 -:6:- receive it and therefore, was returned to the defendants endorsed ‘unclaimed’. The suit was filed on 24.01.2006 before the Munsiff’s Court raising a false allegation that Rs.2,00,000/- was paid on 15.12.2005, seeking to restrain the defendants from alienating the plaint schedule property in favour of any third parties. 7. A commission was taken up. It was reported by the Advocate Commissioner in the report filed that the averments of the plaintiff are devoid of truth. According to him the plaintiff did not pay Rs.2,00,000/- towards advance sale consideration and he did not even approach the defendants demanding the documents relating to the title of the plaint schedule property. It was further reported that steps have never been taken by the defendants to alienate the plaint schedule property to any one and the defendants are ready to return Rs.10,000/- as advance sale consideration received by them. 8. Issues were framed on the basis of the rival stand putforth through pleadings by the parties and they adduced evidence to establish those. On plaintiff’s side, himself and a R.F.A. No. 509 of 2008 -:7:- witness tendered oral evidence respectively as PW1 and PW2 and Ext.A1 was also marked. The defendant was examined as DW1 and Exts. B1 to B3 were marked. 9. The evidence was appreciated by the court below and being unconvinced of the stand of the plaintiff, decree for specific performance was declined and a decree for return of advance amount of Rs.10,000/- with interest at the rate of 6% per annum from the date of the suit till realisation with proportionate costs was passed. Aggrieved by the non-grant of a decree for specific performance, the plaintiff has filed the appeal on hand. 10. Smt Prabha R. Menon, the learned counsel for the appellant urged that, the trial court while answering issue Nos.3 and 4 has observed that the plaintiff failed to produce any documents to substantiate his averment in the plaint that he has always been ready and willing to pay the balance sale consideration of Rs.20,90,000/-. According to the learned counsel, neither a plea was taken by the defendants in the written statement filed nor was spoken while tendering oral evidence as DW1, that the plaintiff does not have the ## R.F.A. No. 509 of 2008 -:8:- financial capacity to pay the balance sale consideration as stipulated in the agreement for sale and in such a circumstance, the trial court ought to have taken a view that the plaintiff had the required funds with him to pay the balance sale consideration and was always ready and willing to pay the same to the defendants. According to her, the plaintiff had made a specific plea in the plaint that he was ready and willing always to perform his part of the contract and has also spoken in tune with while tendering evidence as PW1. According to her, plaintiff as PW1 has also spoken that he had Rs.21,00,000/- with him always, to pay the balance sale consideration. Therefore, the trial court ought to have arrived at a finding in the affirmative on readiness and willingness of the plaintiff to pay the balance sale consideration. According to her, the plaintiff had the required money with him to pay the balance sale consideration but failed to establish the same by producing relevant materials indicative of that before the trial court, due to want of challenge against by the defendant. According to her, I.A.No.1/2019 is filed alongwith the Appeal Memorandum ## R.F.A. No. 509 of 2008 -:9:- accompanied by necessary documents evidencing the availability of the funds with him at the relevant time, and also seeking to receive those as additional evidence in the Suit. The learned counsel also canvassed for reversal of the judgment and decree under challenge and remand of the case to the court below to enable it to have the issues raised in the Suit re-considered on its basis and to pass a fresh decree. 11. In a suit for specific performance of an agreement, it is fundamental for the plaintiff to establish his continuous readiness and willingness to perform his part of the contract and in the event of his failure to do so, the Suit is bound to fail on that ground itself. The Apex Court has held so in **Mehboob-Ur-Rehman (Dead) through Lrs v. Ahsanul Ghani** [2019 KHC 6180(SC)]. It was a case where an application seeking to amend the plaint to incorporate pleadings on readiness and willingness was filed following a contention taken by the defendant regarding want of such a plea in the plaint, it was held that the court can take such as an attempt of the plaintiff to improve the plaint and insert the ## R.F.A. No. 509 of 2008 -:10:- Phraseology of readiness and willingness, too late in the day for filling up a lacuna in his case. 12. It was held by the Apex Court in **Kalawati (D) through Lrs. and Others v. Rakesh Kumar and Others** [2018 KHC 6112 (SC)] that when the respondent/plaintiff was not in a position to pay the balance sale consideration, he can be taken as not ready and willing to perform his part of the agreement and the High Court which set aside the judgment and decree of the trial court in the context was found erred in doing so. 13. In **Meenakshisundaram P. v. P. Vijayakumar and Another** [2018 KHC 6232 (SC)], the Apex Court held that the law is very clear that the plaintiff must plead and prove his readiness and willingness to perform his part of the contract all throughout i.e., right from the date of the contract, till the date of hearing of the Suit. 14. The decisions referred to above having been rendered by the Apex Court based on Section 16 of the Specific Relief Act, 1963, it is extracted hereunder for convenient reference: R.F.A. No. 509 of 2008 -:11:- **"16. Personal bars to relief.—** Specific performance of a contract cannot be enforced in favour of a person— (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.—For the purposes of clause (c),— (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." **Obj** ## It is indicated from the above provision that a court which is ## approached by a party seeking the relief of specific performance ## R.F.A. No. 509 of 2008 -:12:- of a contract is barred from granting the same, if he failed to raise a cogent and precise plea in the plaint that he was and is always ready and willing to perform his part of the contract and to establish the same by cogent and convincing evidence. 15. In the backdrop of Section 16 of the Specific Relief Act, 1963 (for short ‘Act, 1963’) and position of law settled by the Apex Court in various decisions discussed above, the averments in the plaint require scrutiny. The specific plea of the plaintiff in the plaint in that line was that ‘the plaintiff had been always ready and willing to pay the balance sale consideration and to get the sale deed registered’. 16. As per the averments of the plaintiff in the plaint, defendants are the owners of the plaint schedule properties and they appointed their mother Patheyi who was their Power of Attorney Holder to sell the plaint schedule property alongwith the structures situated therein. 17. The parties entered into an agreement on 09.08.2005 following settlement in mediation to sell the properties. The total sale consideration agreed was Rs.21,00,000/- out of which Rs.10,000/- was paid as advance sale consideration on the date R.F.A. No. 509 of 2008 -:13:- of agreement itself. The defendants as per the terms agreed have to hand over the documents mentioned in the agreement before 31.07.2006 and to register the sale deed. On the assurance of the defendants Rs.2,00,000/- was also paid by the plaintiff on 15.12.2005 to the defendants towards sale consideration. The defendants did not co-operate with the plaintiff to measure out the plaint schedule properties and thus committed breach of contract. 18. According to the plaintiff the defendants and their mother visited the plaint schedule property and attempted to cut down coconut trees and remove machinery fixed in the shed situated there. The plaintiff filed O.S No.34/2006 before Munsiff’s Court-II, Kozhikode seeking permanent prohibitory injunction to restrain the mischief threatened to be committed by the defendants. 19. It was averred by the plaintiff that the allegation that he had delayed performance of his part as per the agreement for sale is false and that on coming to know on 10.02.2007 that the defendants attempted sale of the property to one Mr.Sunil Dutt and thus failed to comply with the terms of the agreement for R.F.A. No. 509 of 2008 -:14:- sale, the Original Suit was filed. As an alternative relief, return of the amount paid as advance sale consideration was also sought. 20. Power of Attorney Holder of the defendants filed written statement contending that negotiations, the parties had among themselves, culminated in execution of the agreement with the Power of Attorney Holder for sale of the plaint schedule properties, that the plaintiff wanted one year time to complete the transactions and that the Power of Attorney Holder had demanded payment of Rs.5,00,000/- as advance sale consideration to get the occupants of the match factory evicted therefrom. The plaintiff agreed for the payment. He also volunteered to prepare the sale agreement by himself. He told the defendants that he had only Rs.10,000/- with him and assured that the balance amount would be raised and paid within one month. On the basis of the assurance of the plaintiff, the defendant signed the sale agreement. The plaintiff also intended to purchase the machineries by paying the costs and that was intimated by the defendants to the occupants of the match factory. Defendants negotiated with the occupants and assured to compensate them if they vacate the premises after leaving the ## R.F.A. No. 509 of 2008 -:15:- machineries. Thus Rs.5,00,000/- was agreed to be paid before 10.11.2005. But plaintiff did not abide by the above promise. Therefore, the defendants faced difficulty to deal with the occupants of the factory. Due to delay caused by the defendants, the occupants withdrew from their assurance to sell the machinery. Therefore, a lawyer notice was caused to be issued by the defendants on 10.01.2006 informing that for the default of the plaintiff to perform his part as per the agreement, defendants are constrained to withdraw from the contract. Demand Draft for Rs.10,000/- received from the plaintiff was also sent to him. Plaintiff avoided the notice and thereby caused it to return as unclaimed. On 26.01.2006, the Suit was instituted by the plaintiff raising false allegation that Rs.2,00,000/- was paid on 15.12.2005 and seeking for an injunction against defendants from alienating the plaint schedule property. The plaintiff did not obtain the order of injunction sought since the Advocate Commissioner deputed from the Court to ascertain the veracity of the pleadings, reported those as false. Thereafter the Suit on hand seeking specific performance was filed. The claim of the plaintiff that Rs.2,00,000/- was paid on 15.12.2005 is denied by ## R.F.A. No. 509 of 2008 -:16:- the defendants. The plaintiff was contended as never approached the defendants with relevant documents pertaining to the plaint schedule property. The defendants never attempted to alienate the plaint schedule property to Mr.Sunil Dutt as averred by the plaintiff. Defendants expressed their readiness to return Rs.10,000/- received from the plaintiff as advance sale consideration. 21. Plaintiff when examined as PW1 deposed strictly in tune with his averments in the plaint. Copy of the agreement executed on 09.08.2005 is also marked in evidence as Ext.A1. One witness was also examined as PW2. Defendants examined DW1 and marked Ext.B1, which is nothing but the notice issued to the plaintiff but returned unclaimed. Copies of the plaint in O.S. No.34/2006 and the proof affidavit filed by the plaintiff there were also marked respectively as Exts.B2 & B3. 22. Execution of Ext.A1 agreement is admitted by the plaintiff as well as the power of attorney holder of the defendants. The father of the defendants and a real estate broker were witnesses to Ext.A1. It is a document typewritten in Malayalam. But advance amount paid is written with ink, in the R.F.A. No. 509 of 2008 -:17:- space available in the agreement between typewritten lines. The space for filling the balance sale consideration is left blank in Ext.A1. Total sale consideration agreed as per Ext.A1 was Rs.21,00,000/-. The balance sale consideration was agreed to be paid on or before 31.07.2006. On such payment being made it was undertaken by the vendor to execute the sale deed in favour of the vendee or to anyone ordered by him and to deliver possession of it. It was also agreed that the exact extent of the property would be confirmed by measurement and boundaries ascertained by identification in the presence of both parties to the agreement. Valid documents pertaining to the title and possession of the property by the defendants were also agreed to be handed over by them to the plaintiff. 23. The trial court was convinced from the oral evidence of PW1 and PW2 that the terms in Ext.A1 was arrived at and it was executed pursuant to sufficient negotiations among the parties to it. Evidence would also reveal that the father of the defendants supplied the format of Ext.A1 and the plaintiff and PW2 had done everything for its preparation. PW2 got the contents typewritten. Since sufficient negotiations were had among the parties prior to R.F.A. No. 509 of 2008 -:18:- preparations of the draft sale deed and execution of Ext.A1, the terms agreed must have been described in Ext.A1. The specific case of defendants was that one year time was sought for by the plaintiff for completion of the transaction and accordingly the time for performance was fixed till 31.07.2006. Advance amount of Rs.10,000/- paid was shown in Ext.A1, but written with ink. Since the payment of Rs.10,000/- was admitted by the defendants, there cannot be anymore controversy on that. The claim of defendants was that Rs.5,00,000/- was demanded from the plaintiff for the purpose of meeting the expenses of eviction of the occupants of the match factory and the plaintiff though agreed to pay it, failed to do so. On 15.12.2005 Rs.2,00,000/was claimed as paid by the plaintiff to the defendants. But there is no endorsement to that effect made in Ext.A1. That aspect is not established by any of the documents marked in evidence from the side of the plaintiff. The defendant had also denied such payment. 24. As per Ext.A1 the balance sale consideration was agreed to be paid before 31.07.2006 and to get the sale deed executed on the same day. The plaintiff denied the case of the R.F.A. No. 509 of 2008 -:19:- defendants that the property was measured and the documents pertaining to its title and possession were handed over by the defendants within the time stipulated in Ext.A1 or in a sequence of performance of reciprocal promises by each of them. 25. Based on the evidence brought on record by the parties to the Suit, the court below found that the plaintiff could not refer to any documents to show that he really had cash reserves to pay the balance sale consideration anytime after the execution of Ext.A1. From the admission of the plaintiff during cross examination that he had borrowed Rs.2,00,000/- from one Mr.Abdul Rahman to make payment to the defendants on 15.12.2005 itself, the court below arrived at a conclusion that his financial condition was so weak at the relevant time. It is made clear that he was a man struggling hard to raise Rs.2,00,000/- to pay the advance sale consideration and therefore he cannot also be said to have been possessing Rs.20,90,000/- with him to pay the balance sale consideration during the period stipulated for payment by Ext.A1. This Court could not find any reason to say that the court below has gone wrong while making such an observation. ## R.F.A. No. 509 of 2008 -:20:- 26. The plaintiff also failed to adduce any evidence to establish his claim that Rs.2,00,000/- was paid by him to the defendant on 15.12.2005. The Advocate Commissioner deputed by the court to ascertain the truth of the contentions raised by the parties to the Suit also reported that the plaintiff had not paid Rs.2,00,000/- towards balance sale consideration as claimed by him. The alleged payment of Rs.2,00,000/- being towards the outstanding balance sale consideration agreed to be paid as per Ext.A1, the plaintiff if had actually paid the amount, would have obtained an endorsement from the defendant on Ext.A1 in that regard. Moreover, it is found on a perusal of Ext.A1 that the space left for filling up the figure of balance sale consideration was kept blank. 27. As rightly observed by the court below, even when the plaintiff alleged to have come across with the commission of waste in the plaint schedule property by the defendants, which is the subject matter of agreement for sale, in respect of which advance sale consideration has also been paid by him, rather than filing a Suit for specific performance, he opted to file a Suit for permanent prohibitory injunction as O.S. No.34/2006. He ## R.F.A. No. 509 of 2008 ## -:21:- also sought for an order of temporary injunction to restrain the defendants from committing waste. The above Suit was filed at a stage when the period stipulated in Ext.A1 for execution of the sale deed in respect of the plaint schedule property agreed to be sold was at its verge of expiry. If the plaintiff had the fund with him to pay the balance sale consideration and the purpose for which Ext.A1 executed was actually defeated by the defendants as stated by him, he should have immediately approached the court by filing a suit seeking for a decree for specific performance. He failed to do so and his failure in fact constrains this court to take a view that the plaintiff was devoid of any funds with him or has not located any source to derive the funds to pay the balance sale consideration to the defendants. 28. Alongwith the appeal on hand the plaintiff has filed I.A. No.1/2019 seeking to receive some additional documents appended thereto as additional evidence. The documents proposed for marking in evidence are nothing but acknowledgements issued from the Income Tax Department evidencing the filing of income tax returns by the petitioner R.F.A. No. 509 of 2008 -:22:- and some receipts of 5[1/2] year Kissan Vikas Patra, as Annexures B1 to B6 and C1 to C6. 29. It is sworn to by the plaintiff in the affidavit accompanying the petition that he was doing business in manufacture of match sticks and his wife was maintaining a stitching unit with a number of workers under her and Annexures B1 to B6 and C1 to C6 if marked in evidence would establish that he has the financial capacity to pay the balance sale consideration during the relevant period stipulated for execution of the sale deed in Ext.A1. 30. This Court had a scrutiny of the above documents and found that those are insufficient to establish the claim of the plaintiff that he had with him the required financial resources to pay the balance sale consideration which would come to more than Rs.20,00,000/-. Moreover in the application filed under Order XLI Rule 27 CPC, the petitioner failed to state a cogent ground for reception of documents in additional evidence as contemplated by it. One among the grounds in Order XLI Rule 27 CPC empowers the court to receive the additional documents in evidence on its own was the importance and relevance of ## R.F.A. No. 509 of 2008 -:23:- those for arriving at a just and true adjudication of the issues involved. It is also found on a scrutiny of the documents that those are inadequate and insufficient to establish the financial capacity of the plaintiff to pay the balance sale consideration which approximately is more than Rs.20,00,000/-. Therefore this Court cannot even invoke the discretion to receive those under Order XLI Rule 27(1)(b) CPC. 31. It is seen stated by the plaintiff in the affidavit that he was intending to examine Mr.Abdul Rahiman, a real estate broker who was pleaded in the plaint in the Original Suit on hand as conversant with the payment of Rs.2,00,000/- as advance sale consideration and has already filed a proof affidavit of him in lieu of chief examination. According to him he was prepared to depose about the date scheduled for his examination, but could not turn up on that day for his cross examination due to disc prolapse. Infact an adjournment was sought on that day but the court below was reluctant to grant one. Copy of the proof affidavit is also appended to I.A. No.1 of 2019 as Annexure A. It is pertinent to note on a perusal of the records of the case furnished from the court below that measures were not taken by R.F.A. No. 509 of 2008 -:24:- the plaintiff to get an adjournment. He did not even filed an application later to get an opportunity to examine the witness. 32. In the light of the discussion hereinabove made this Court is hesitant to allow I.A. No.1/2019 and to receive the documents produced alongwith in additional evidence. This Court also did not find any reason to interfere with the impugned judgment, which only deserves to be confirmed. The appeal fails for the reasons and is dismissed. Sd/- **MARY JOSEPH, JUDGE.** ttb