Mary Antony and Others v. Roy Joseph

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943 ``` ## **`RFA NO. 98 OF 2013`** ``` AGAINST THE JUDGMENT AND DECREE DATED 29.09.2012 IN OS 478/2009 OF SUB COURT, ALAPPUZHA ``` ## **`APPELLANTS/ DEFENDANTS:`** - **`1 MARY ANTONY AGED 66 YEARS W/O.ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA-8.`** - **`2 JANCY AGED 43 YEARS`** ``` D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA-8. ``` ``` 3APPLONIA AGED 37 YEARS D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA-8. ``` - **`4 ANNAMMA AGED 34 YEARS D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA-8.`** - **`5 MATILDA AGED 33 YEARS D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA-8.`** ``` 6ANTONY AGED 32 YEARS S/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA-8. ``` ``` BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.P.M.ISMAIL SRI.M.D.SASIKUMAR ``` ``` RFA NO. 98 OF 2013 ``` ``` 2 ``` ## **`RESPONDENT/PLAINTIFF:`** ``` ROY JOSEPH AGED 40 YEARS S/O.M.F.JOSEPH, KANJIRAMCHIRA, ARYADU SOUTH VILLAGE, ALAPPUZHA-7, NOW EMPLOYED AT KUWAIT, REP. BY HIS POWER OF ATTORNEY HOLDER & WIFE, JEE MARY ROY, AGED 30, KANJIRAMCHIRA, ARYADU SOUTH VILLAGE, ALAPPUZHA-7. ``` ``` BY ADVS. SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE ``` ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RFA NO. 98 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** ``` A suit for specific performance granted by the trial court is under challenge. It is pertaining to 11.250 cents of property with a residential building therein. The defendants have agreed to sell the same for a total consideration of Rs.12,50,000/- by executing Ext.A2 agreement dated 20.06.2009, by which, an advance amount of Rs.2,25,000/- was received by stipulating a period of six months. Just before the expiry of the period agreed into, Ext.A3 notice was issued on 08.12.2009 demanding performance of part of contract to the defendants, to which, Ext.A5 reply was issued disputing the alleged subsequent payment of Rs.50,000/- and also disputing the readiness and willingness alleged. The trial court on consideration of the evidence and after hearing both the parties, decreed the suit by granting ``` ``` RFA NO. 98 OF 2013 ``` ``` 4 ``` ``` specific performance, against which the defendants came up. ``` ``` 2. The property agreed to be sold admittedly is the only place of abode of the first defendant and her children. But she decided to sell the property for the purpose of meeting the marriage expenses of her two unmarried daughters, the defendants 4 and 5 and also for meeting the treatment expenses of the sixth defendant, a crippled son. ``` ``` 3. The suit was instituted through a power of attorney holder. Oral evidence was also tendered through the said power holder. The plaintiff did not mount on the box to give direct evidence. It was taken up as a ground to reject the readiness and willingness deposed through the power holder. It was submitted that the statutory requirement under Section 16(c) of the Specific Relief Act would constitute some ``` ``` RFA NO. 98 OF 2013 ``` ``` 5 ``` ``` mental element coupled with intention to perform the essential terms of contract to be performed by the plaintiff, for which, there should be direct evidence amenable to cross examination. Hence, it was argued that the non-examination of the plaintiff would be fatal as against the requirement to be established under Section 16(c) of the Specific Relief Act. But, in order to prove the readiness and willingness to perform the essential terms of contract by the plaintiff, it is not at all necessary to insist direct evidence when other evidences are sufficient enough to discharge the statutory requirement. A mere oral evidence tendered through the witnesses cannot be substituted in the place of direct evidence to be given by the plaintiff so as to discharge the statutory requirement under Section 16(c) of the Act, unless there is evidence to show any positive and affirmative action disclosing the mental ``` ``` RFA NO. 98 OF 2013 ``` ``` 6 ``` ``` element and intention regarding the readiness and willingness to perform his part of contract. In other words, the availability of amount either in cash or otherwise with the plaintiff sufficient to meet the requirement, though constitutes a relevant factor, may not by itself discharge the burden to prove readiness and willingness unless spoken to directly by him by mounting on the box and tested its credibility by cross examination. Paragraph 15 of the judgment of the Division Bench of this Court in Susheela (died) and Others v. T.M.Muhammedkunhi (2012 (1) KHC 508 (DB)) is extracted below for reference: ``` ``` “15. A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. Readiness means the capacity of the plaintiff to perform the contract and it includes his financial ability to raise the money to pay ``` ``` RFA NO. 98 OF 2013 ``` ``` 7 ``` _`the purchase price. Even if the plaintiff has the financial capacity to pay the purchase price and he thereby shows readiness to perform the contract, that need not necessarily mean that he is willing to perform his part of the contract. Unless he is also willing to perform his part of the contract, mere readiness to do so cannot be of no avail to him. He may, nevertheless be disqualified from seeking specific performance of the contract if he is really unwilling to buy the property although he may be ready to do so. (See`_ Raj Rani Bhasin (Smt.) v. S. Kartar Singh Mehta _`- AIR 1975 Delhi 137).“`_ ``` 4. Even going by the oral evidence tendered by PW1, the power holder, she was having an amount of Rs.8,50,000/- in cash and availed a loan of Rs.5,50,000/- out of which a demand draft for Rs.5,00,000/- was drawn as on the date of expiry of period of contract, for which she relied on Ext.A7 certificate issued by the then ``` ``` RFA NO. 98 OF 2013 ``` ``` 8 ``` ``` Manager of South Indian Bank, Convent Road. PW2 is the Bank Manager of the said Bank at the time when he was examined and he pleaded ignorance with the details of Ext.A7. It seems to be so strange that the certificate issued by the then Manager did not contain even the number of the loan account. On the other hand, the Demand Draft was returned on the same day to the bank. It causes reasonable doubt as to the genuineness of Ext.A7 certificate especially when it did not contain the bank details or even the account number under which the loan facility was extended and it would lend support to the case advanced by the defendants regarding the alleged foul play in creating a record in collusion with the then Manager. Even going by Ext.A7, though the loan amount is stated to be Rs.5,50,000/-, the DD drawn which was submitted back on the same day comes to Rs.5,00,000/- without specifying the loan account or its details. ``` ``` RFA NO. 98 OF 2013 ``` ``` 9 ``` ``` Prima facie, it appears that the certificate is seen issued without disclosing the account number or loan account number maintained with the said bank in the name of the plaintiff or the power holder. Only general answers were given pertaining to issuance of Ext.A7 by PW2 without touching into its genuineness and no records were called for or summoned so as to prove its genuineness. Hence, Ext.A7 certificate will not render any assistance to the plaintiff. The fact that the alleged DD was drawn on the date of expiry of the alleged agreement i..e on 20/06/2009 and the same was returned on the same day would itself show something fishy behind it. Hence, there is failure on the part of the plaintiff to prove the readiness and willingness to perform the essential terms of contract. ``` ``` 5. The various aspects regarding the exercise of discretion under Section 20 of the ``` ``` RFA NO. 98 OF 2013 ``` ``` 10 ``` ``` Specific Relief Act has been dealt with by this Court inVasudevakurup v. Haridasan (2021 (6) KLT 782), after referring a three Judge Bench decision of the Apex Court inHer Highness Maharani Shantidevi P.Gaikwad v. Savjibhai Haribhai Patel and Others (AIR 2001 SC 1462) and also the decisions of the Apex Court in A.C.Arulappan v. Smt.Ahalya Naik (AIR 2001 SC 2783) Tejram v. Patirambhau (AIR 1997 SC 2702)and in Kanshi Ram v. Om Prakash Jawan and Others (AIR 1996 SC 2150),S.Rangaraju Naidu v. S.Thiruvarakkarasu (AIR 1995 SC 1769),Azhar Sultana v.B.Rajamani and Ors (AIR 2009 SC 2157),Gobind Ram v. Gian Chand (AIR 2000 SC 3106), Damacherla Anjaneyulu and Another v. Damacheria Venkata Seshaiah and Another (AIR 1987 SC 1641),besides the the decision of a Division Bench of this Court in Antony K.O and Another v. M.K.Krishnankutty Menoki and Others (2017 (1) KHC 479 = 2017 (1) KLJ 357). ``` ``` RFA NO. 98 OF 2013 ``` ``` 11 ``` ``` 6. The learned counsel for the respondent/ plaintiff at the fag end of the argument expressed his willingness to pay an additional amount of Rs.7.5 lakhs. It is submitted that the property is situated in the prime centre of the Alappuzha district. According to the defendants, it would worth more than Rs.30 lakhs. While taking into consideration the undue delay of more than 13 years and the circumstances under which Ext.A2 agreement for sale was executed and also taking into consideration the extent of advance amount paid which is less than 1/5[th] of the agreed sale consideration, it is fit and proper to apply the ratio laid down in the abovesaid decisions by striking a balance. Hence, it is hereby ordered that the plaintiff shall pay or deposit an additional amount of Rs.15,00,000/- (Rupees Fifteen Lakhs) without the liability of interest in addition to the sale consideration (including ``` ``` RFA NO. 98 OF 2013 ``` **==> picture [15 x 10] intentionally omitted <==** ``` the amount deposited), within a time schedule of five months from today for the grant of decree of specific performance, failing which, the decree of the trial court granting specific performance will stand set aside and the suit will stand decreed in part granting a decree of return of advance amount of Rs.2,25,000/- (Rupees Two lakhs Twenty Five Thousand) with interest @ 12% per annum from the date of suit till realization from the defendants and charged upon the plaint schedule property. ``` ``` The appeal is disposed of as above. ``` ``` Sd/- ``` ``` P.SOMARAJAN ``` ``` JUDGE ``` ``` SPV ```