MARAM VEETTIL SUMANGALY vs VALIYAKATH KAMAL MUHIYUDHEEN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 RFA NO. 13 OF 2022** **AGAINST THE JUDGMENT IN OS 291/2010 OF I ADDITIONAL SUB COURT,** ## **KOZHIKODE** ## **APPELLANT/S:** MARAM VEETTIL SUMANGALY AGED 44 YEARS D/O.CHANDRASEKHARAN, KINATTINKARA PARAMBATH, NELLIKODE AMSOM, DESOM, KOZHIKODE TALUK. BY ADVS. VINOD RAVINDRANATH M.DEVESH K.C.KIRAN MEENA.A. VINAY MATHEW JOSEPH ## **RESPONDENT/S:** VALIYAKATH KAMAL MUHIYUDHEEN S/O.MUHAMMED IBRAHIM, AGED 46 YEARS, VALIYAKATH, RESIDING AT SBI COLONY HOUSE, NO.14 , NELLIKKODE AMSOM, DESOM, KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL SALAM, THAIVALAPPIL BEERAVU, AGED 39 YEARS, S/O.BEERAVU, THAIVALAPPIL KOCHUNNI, SANTHI HOSPITAL QUARTERS NO.6, OMASSERY AMSOM, DESOM, KOZHIKODE TALUK, PIN -673572 1. CAUSE TITLE AMENDED VALIYAKATH KAMAL MUHIYUDHEEN, S/O.MUHAMMED IBRAHIM VALIYAKATH, SBI COLONY HOUSE, NO.14 , NELLIKKODE AMSOM, DESOM, KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.IBRAHIM ABDUL KAREEM, S/O.IBRAHIM, DARUSSALAM NEAR ANSAR COLLEGE, PUNNAYUDKULAM , THRISSUR DISTRICT. CAUSE TITLE IS AMENDED AS ABOVE VIDE ORDER DATED 14/11/16 ## **R.F.A. (Indigent) No.13/2022** ## **-:2:-** IN MEMO DATED 3/11/16 BEARING CF NO.3898/16 BY ADVS. SRINATH GIRISH V.NAMITHA **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2022, THE COURT ON 30/11/2022 DELIVERED THE FOLLOWING:** ## **A.MUHAMED MUSTAQUE** ## **&** ## **SHOBA ANNAMMA EAPEN, JJ.** ------------------------------------------ **R.F.A. (Indigent) No.13/2022** ------------------------------------------ ## **J U D G M E N T** ## **Dated this the 30th day of November, 2022** ## A.Muhamed Mustaque, J. This appeal arises from a judgment granting specific performance in favour of the plaintiff. The defendant, who is the appellant herein, entered into an agreement of sale with the plaintiff on 21/7/2009 to sell 50 cents of land belonging to her, lying in a prominent area of the Kozhikode Corporation, on a consideration of Rs.1,70,000/- per Cent. On the day of agreement of sale, the plaintiff paid a sum of Rs.20 lakhs. The plaintiff instituted a suit for specific performance after sending a registered notice which was returned unclaimed. The learned Sub Judge, Kozhikode, ## **R.F.A. (Indigent) No.13/2022** ## **-:2:-** noting that the plaintiff was always ready and willing to perform his part of the contract, granted decree in favour of the plaintiff. 2. The defendant, the appellant herein, had not disputed the agreement of sale and filed a written statement admitting the same. After admitting the agreement, an attempt was made to amend the written statement. The defendant incorporated a contention that she never intended to sell the property. This was disallowed by the Sub Judge and, on a challenge before this Court, the said order was also affirmed. However, before the Court below, she narrated the circumstances under which she happened to enter into an agreement. According to her, her husband is a drunkard and she was forced to sign the agreement as coerced by her husband. She said that she had two girl children in the wedlock and the wayward life of her husband landed the family into a debt- ## **R.F.A. (Indigent) No.13/2022** ## **-:3:-** trap. She testified that her husband hails from a rich family and he sold all of his properties for a paltry amount. He is also a lawyer without active practice. It is also stated by her that her husband insisted her to sell the property to discharge his liability of Rs.20 lakhs and when she refused it, he threatened her that he will commit suicide. It is when she was emotionally distraught and distressed circumstances, she was forced to enter into an agreement of sale with the plaintiff. She also testified that she had no other means other than the plaint schedule property which she required for meeting the expenses for education and marriage of her children. She also produced Ext.B1 to B6 to prove the treatment of her husband in different hospitals for de-addiction. 3. This is not a case where we are persuaded to hold that the plaintiff was at default. The defendant is the daughter of a former M.L.A and ## **R.F.A. (Indigent) No.13/2022** ## **-:4:-** belonged to a well-to-do family. The circumstances in which she was forced to enter into a sale agreement cannot be ignored by this Court while exercising the discretion in granting specific performance. We are also aware of the steep increase of the value of the property and appellant counsel submitted that the present market value of the plaint schedule property will be at least Rs.15-20 lakhs per Cent. The inadequacy of consideration though cannot be a reason to decline specific performance, the Court cannot ignore the escalation of the price, pending proceedings, coupled with other facts to deny specific performance to the plaintiff. The defendant is a lady. She fought her own way to overcome the barriers created by her husband. She has two girl children. She is not disputing the agreement of sale but she candidly admitted the circumstances which led to the signing of the agreement of sale. ## **R.F.A. (Indigent) No.13/2022** ## **-:5:-** It is apparent that at the time of executing the agreement, the price was on the lower side. The case of the plaintiff himself is that the defendant had intention to wriggle out of the agreement to sell the land for a higher price. It may be in a circumstance due to the compulsion from her husband that she was forced to execute the sale agreement. Section 20(2) of the Specific Relief Act, 1963 gives leeway to the Court to exercise discretion not to decree Specific performance. Section 20(2) reads thus: “Discretion and powers of Court 20. Discretion as to decreeing specific performance.-(2) The following are cases in which the court may properly exercise discretion not to decree specific performance: (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, ## **R.F.A. (Indigent) No.13/2022** ## **-:6:-** whereas its nonperformance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. **==> picture [395 x 12] intentionally omitted <==** circumstances enumerated under Section 20(2)(a) to **==> picture [431 x 12] intentionally omitted <==** ## **R.F.A. (Indigent) No.13/2022** ## **-:7:-** specific performance even though the plaintiff is not at fault on equitable considerations. The defendant being a lady, who is unable to withstand the pressure yielded by her husband, had succumbed to the demand of her husband. No woman hailing from a decent family would depose before a Court of law testifying against her husband. The circumstances clearly indicate that it is her husband who forced her to enter into the agreement of sale against her will. The plaintiff had no specific reason to buy this property. He has not disclosed any special reason to purchase this property. If the relief of specific performance is not granted, no much hardship will cause to him, provided he is adequately compensated. 5. The Apex Court in **Jayakanthan & Ors. v.** **Abaykumar [(2017) 5 SCC 178], Sardar Singh v. Smt.Krishna Devi and Another [AIR 1978 SC 2328], K.Narendra v. Riviera Apartments (P) Ltd. [(1999) 5** ## **R.F.A. (Indigent) No.13/2022** ## **-:8:-** **SCC 77]** and **Nirmala Anand v. Advent Corporation (P)** **Ltd. [(2002) 8 SCC 146]** recognised the discretionary power of the Court to deny specific relief after adverting to the attending circumstance of the case. The Apex Court in Nirmala Anand’s case (supra) at para 6 held as follows : ".....6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that ## **R.F.A. (Indigent) No.13/2022** ## **-:9:-** may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen." The Courts in India are not only Courts of law but also Courts of equity. The Court has to perceive the hardships likely to cause to the defendant in the event of grant of specific performance. The Court also has to consider any circumstances which forced the defendant to enter into a sale agreement. The Court has to consider the comparative hardships, the advantages and disadvantages of the plaintiff and the defendant. 6. The plaintiff lives abroad. He has not pleaded any specific advantage or disadvantage in his testimony though it was stated at the Bar that he had intention to construct a residential building. When no hardship is caused to the plaintiff and when the Court foresees the hardships or disadvantages to the defendant, the Court must ## **R.F.A. (Indigent) No.13/2022** ## **-:10:-** exercise the discretion in favour of the defendant. 7. The defendant agreed to pay interest calculated amounting Rs.80 lakhs, by way of compensation calculating the interest for Rs.20 lakhs paid as advance and Rs.65 lakhs deposited before Court below towards balance consideration. We are of the view that the plaintiff can be awarded a compensation of Rs.1 crore in lieu of decree of specific performance. In the result, the appeal is allowed. We pass the following decree. : i. The impugned judgment granting specific performance is set aside. ii. The plaintiff is entitled to recover Rs.1 crore (Rupees one crore only) as compensation besides Rs.20 lakhs paid in advance, totalling Rs.1.20 crores (Rupees one crore and twenty lakhs only). ## **R.F.A. (Indigent) No.13/2022** ## **-:11:-** iii. The above amount shall be paid within three months from today. On failure, it will carry 6% interest per annum till realisation. iv. The plaintiff is permitted to withdraw the balance consideration of Rs.65 lakhs deposited before the Court below. v. The appellant was permitted to sue as indigent, the Court fee payable to the State will be a charge over the plaint schedule property. The parties are directed to suffer their costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SHOBA ANNAMMA EAPEN, JUDGE** ms/ln