Marykutty v. Babu Thomas

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940** **RFA.No. 253 of 2012 H** **AGAINST THE JUDGMENT AND DECREE DATED 31.10.2011 IN OS 150/2010 of THE SUB COURT, PALA** ## **APPELLANT/ DEFENDANT :** **MARYKUTTY, 61 YEARS, W/O.JOSEPH, CHITTETTU HOUSE, NOW RESIDING AT PANACHIKATTU HOUSE, 23[RD] WARD, PALA MUNICIPALITY, PALA P.O., PIN - 686 575, LALARA KARA, LALARA VILLAGE, MEENACHIL TALUK.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SMT.NISHA JOHN SRI.PAUL JACOB (P) SRI.S.SREEDEV** ## **RESPONDENT/ PLAINTIFF :** **1 BABU THOMAS, S/O.THOMAS, OZHAKKAL HOUSE, POONJAR SOUTH P.O., PIN - 686 582, POONJAR NADUBHAGOM KARA, POONJAR NADUBHAGOM VILLAGE, MEENACHIL TALUK. [DIED]** **ADDL.R2 SMT.ANCY, AGED 48 YEARS, W/O THOMAS, OZHAKKAL HOUSE, POONJAR SOUTH P.O., PIN - 686 582, POONJAR NADUBHAGOM KARA, POONJAR NADUBHAGOM VILLAGE, MEENACHIL TALUK.** **RFA.No. 253 of 2012** 2 **ADDL.R3 SMT.CHIPPY, AGED 22 YEARS, D/O THOMAS, OZHAKKAL HOUSE, POONJAR SOUTH P.O., PIN - 686 582, POONJAR NADUBHAGOM KARA, POONJAR NADUBHAGOM VILLAGE, MEENACHIL TALUK.** **ADDL.R4 SMT.SONA, AGED 18 YEARS, D/O THOMAS, OZHAKKAL HOUSE, POONJAR SOUTH P.O., PIN - 686 582, POONJAR NADUBHAGOM KARA, POONJAR NADUBHAGOM VILLAGE, MEENACHIL TALUK.** **ADDL.R5 SRI.RAHUL, AGED 20 YEARS, S/O THOMAS, OZHAKKAL HOUSE, POONJAR SOUTH P.O., PIN - 686 582, POONJAR NADUBHAGOM KARA, POONJAR NADUBHAGOM VILLAGE, MEENACHIL TALUK.** **[LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED IN THE PARTY ARRAY AS ADDL.R2 TO R5 VIDE ORDER DATED 28.07.2017 IN I.A.NO. 1036/2017]** **BY ADVS. SRI.ANIL D.KARTHA SRI.CYRIAC KURIAN SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.SREEKUMAR (SR.) SRI.THOMAS P.KURUVILLA** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No. 253 of 2012** 3 ## **JUDGMENT** **K.Harilal, J.** **The appellant is the defendant in O.S.No.150/2010 on the files of the Sub Court, Pala. The aforesaid suit was filed by the original plaintiff, the father of the respondent herein, seeking a decree to direct the appellant herein to execute the sale deed, in respect of the plaint schedule property, in favour of the original plaintiff, on receipt of the balance consideration within a specified time or in the alternative to issue a direction to the defendant to pay back Rs.5 lakhs with interest, which was received in advance to the plaintiff within a specified time. (The parties are referred to as in the original suit).** **2. According to the averments in the** **RFA.No. 253 of 2012** 4 **plaint, the plaintiff and the defendant entered into an agreement for sale on 12.09.2009 to purchase the plaint schedule property for a consideration of Rs.81,000/per cent. The defendant agreed to execute the sale deed on or before 10.10.2010 after measuring and convincing the extent of property, without any encumbrance. The defendant accepted Rs.5 lakhs towards the sale consideration. In the agreement, there is a clause to the effect that if the plaintiff** **pays Rs.35 lakhs on or before 10.10.2009, the defendant will execute the sale deed with respect to 30 cents of property from the plaint schedule property. Even if the said property was not purchased as stipulated in the clause within the above stipulated period, the plaintiff got every right to purchase the entire property after** **RFA.No. 253 of 2012** 5 **paying the balance sale consideration on or before 10.10.2010. The plaintiff all along the said period was ready and willing to pay the balance consideration and still now the plaintiff is ready and willing to pay the balance consideration if the defendant convince the extent of property by measuring the same and ready to execute the sale deed. 3. Further, the plaintiff was willing to pay Rs.35 lakhs as per the inner clause in the aforesaid agreement before the specified date 10.10.2009. But, 10.10.2009 was a 2[nd ] Saturday. Therefore, both parties agreed to execute the sale deed on 12.10.2009 with respect to 30 cents of property. In order to perform the said condition, the plaintiff reached the document writer's office so as to get the sale deed executed by the defendant. But the defendant did not turn out. The plaintiff also** **RFA.No. 253 of 2012** 6 **visited the Sub Registrar Office for paying the amount so as to get the sale deed executed with respect to 30 cents of property. But the defendant was not found there also. The defendant, who wilfully defaulted the agreement on 12.10.2009 issued a notice stating false and untenable contentions. Soon after the receipt of notice, the plaintiff issued reply on 24.10.2009 informing that he is ready and willing to pay the consideration of the entire property, if the defendant is ready and willing to execute the sale deed. Even though the said notice was accepted, there was no response from the part of the defendant. While so, the plaintiff got information from others that the defendant was going to dispose of the property to others and also committing wastes to the property. So he filed OS.No.225/2009 before the Munsiff** **RFA.No. 253 of 2012** 7 **Court, Pala and obtained an injunction restraining the defendant from alienating the property to others. The defendant thereafter issued notice stating that she withdrew from the agreement for sale. She also informed that she is not ready and willing to execute the sale deed after receiving the balance sale consideration. The plaint schedule property is situated near his business place and hence he is darely in need of the property. If the specific performance is denied, he will be put to great hardship and irreparable injury which cannot be compensated by way of money. With the aforesaid averments, the plaintiff has sought for a decree as prayed for.** **4. The defendant filed a written statement denying the allegation that she was not ready and willing to perform his part of the contract. But she admitted that she** **RFA.No. 253 of 2012** 8 **entered into an agreement for sale of the plaint schedule property with the plaintiff on 12.09.2009 as she was in urgent need of money. The family property given to her elder son was not fit for constructing a building and hence they want to purchase 10 cents of property adjacent to the property of her relatives and they offered 10 cents of property. So she was in need of money to purchase that 10 cents of property. That apart, during the said period, her younger son Anil was constructing a building and he availed huge loan from the Bank for constructing the building. But the said loan amount was not sufficient to complete the construction. Due to that reason also, she was in need of money and she entered into agreement with the plaintiff in the above background. But as the plaintiff failed to** **RFA.No. 253 of 2012** 9 **perform his part of the obligation, their intention to purchase 10 cents of property for her elder son Sunil was not wilful because the said property was sold by the sellers to other person. Her younger son Anil also availed another loan for completing the construction of his house. As per the inner clause in the agreement dated 12.09.2009, the plaintiff was bound to purchase 30 cents of property by paying Rs.35 lakhs on or before 10.10.2009. But, he failed to perform that obligation. As he was not ready and willing to execute the said agreement, he has no right to claim execution of the sale deed as provided under the agreement dated 12.09.2009. The defendant was all along willing to perform her part. The performance of the inner clause was postponed from 10.10.2009 to 12.10.2010, as the plaintiff informed her that it is not possible** **RFA.No. 253 of 2012** 10 **to arrange the amount before 10.10.2010. The defendant repudiated from the agreement when the plaintiff failed to pay Rs.35 lakhs and to get executed the sale deed with respect to 30 cents of property. In order to execute the sale deed, no step was taken by the plaintiff to measure the property. It was the duty of the plaintiff to measure and convince himself regarding the extent of property and the defendant was not liable for the same.** **Therefore, the plaintiff is not entitled to get a decree for the specific performance.** **5. The defendant is residing in a building situated near the plaint schedule property. But, major portion of that building was measured for acquisition in connection with the widening of Pala-Ramapuram road. If the property was acquired for widening the road,[3] /4th of the building portion is to be** **RFA.No. 253 of 2012** 11 **demolished and hence a new building is to be constructed for their residence. But she has no property other than the plaint schedule property to construct a new building. On that ground also, she was not ready and willing to sell the property to the plaintiff. With the aforesaid contentions, the defendant prayed for dismissal of the suit.** **6. On the rival contentions, both parties adduced evidence which consists of the oral testimony of PW1 to PW4 and Exts. A1 to A18 from the part of the plaintiff, the oral testimony of DW1 and Exts.B1 and B2 from the part of the defendant and C1 and C1(a) as court exhibits. After evaluating the aforesaid evidence on record, the court below decreed the suit on a finding that the plaintiff was ready and willing to perform his part of the contract; but the defendant repudiated the** **RFA.No. 253 of 2012** 12 **agreement for sale without sufficient reason and the evidence shows that the plaintiff is in dire need of the plaint schedule property for his business purpose and if the property is not given to him based on Ext.Al agreement, the loss to be sustained to him cannot be compensated by way of money. The legality and correctness of the aforesaid finding whereby the court below decreed the suit as prayed for are assailed in this appeal on various grounds.** **7. Heard the learned counsel for the appellant and the learned counsel for the respondent.** **8. The learned counsel for the appellant advanced arguments, challenging the maintainability of the original suit, on the ground that the original suit was one filed prematurely before the expiry of the term of** **RFA.No. 253 of 2012** 13 **agreement for sale. According to the learned counsel, the court below ought to have dismissed the suit** _**in limine**_ **, as it was filed prematurely before the accrual of cause of action against the defendant. The learned counsel invited our attention to the inner clause in Ext.A1 agreement for sale and submits that as per the inner clause, the plaintiff was bound to pay Rs.35 lakhs to the defendant and got executed the sale deed with respect to 30 cents of property before 10.10.2009. According to the learned counsel, the said inner clause was a condition precedent required for the performance of the execution of the sale deed as contemplated under the agreement for sale dated 12.09.2009. When the plaintiff failed to perform his part in the aforesaid inner clause before 10.10.2009, he is not entitled to get the sale** **RFA.No. 253 of 2012** 14 **deed executed with respect to the entire property before 10.10.2010. The plaintiff was not ready and willing to get the sale deed executed with respect to 30 cents of property by paying Rs.35 lakhs before 10.10.2009. On the failure to perform the inner clause, the defendant is justified in repudiating the contract for sale. Further, it is contended that the evidence on record could prove that the defendant was ready and willing to perform her part in the inner clause for the sale of 30 cents of property. But, the court below has failed to appreciate the said evidence in its correct perspective. No evidence was produced to prove that the plaintiff had sufficient money in his hand or in his Bank account, to pay the consideration of the sale to the defendant, during the period of agreement. According to the learned counsel** **RFA.No. 253 of 2012** 15 **for the plaintiff, strict proof of money in cash or bank account is essentially required to prove the readiness and willingness of the buyer and in the instant case, no such evidence was available on record, the learned counsel contends.** **9. Per contra, the learned counsel for the plaintiff advanced arguments to justify the rejection of the contention that the suit was not maintainable. According to the learned counsel for the plaintiff, the defendant has repudiated the contract before the expiry of the term of contract and informed the plaintiff by sending a lawyer's notice and in that circumstances, there was no need to wait till the expiry of the term of contract, as the cause of action has already arisen, before the expiry of the term of contract. Therefore, it cannot be said that** **RFA.No. 253 of 2012** 16 **the suit was filed prematurely. According to the learned counsel for the defendant, the inner clause requiring the execution of sale deed with respect to 30 cents of property on** **payment of Rs.35 lakhs was not a condition precedent, as the said clause has no connection with the main clause, in the agreement. The said clause was optional to the plaintiff and if he did not pay the said amount of Rs.35 lakhs, he will not get the sale deed executed with respect to 30 cents of property and the same alone is the consequence of his non-performance, in the inner clause. Even if the plaintiff fails to perform his part of the inner contract by paying Rs.35 lakhs to the defendant, he is entitled to get the sale deed, with respect to the entire property, executed before 10.10.2010 on payment of the entire** **RFA.No. 253 of 2012** 17 **consideration of the sale. The learned counsel further contends that the plaintiff was ready and willing to perform his part of the inner clause requiring payment of Rs.35 lakhs and money was available in his Bank account on 12.09.2009. More specifically, it is contended that strict proof of liquid cash in hand or in Bank account is not an essential requirement to prove the readiness and willingness of the buyer and readiness and willingness of the buyer has to be inferred from the entire conduct of the buyer.** **10. In view of the arguments at the Bar, the points to be considered are:-** (1) Whether the suit, for specific performance of a contract for sale, filed before the expiry of the term of contract, when the contract for sale was repudiated by the seller, is maintainable? (2) Whether the performance of inner clause in Ext.A1 agreement requiring the execution of sale **RFA.No. 253 of 2012** 18 deed with respect to 30 cents out of the plaint schedule property, on payment of Rs.35 lakhs by the plaintiff, is a condition precedent for claiming execution of the sale deed with respect to the entire plaint schedule property, as contemplated under Ext.A1? (3). What is the effect and impact of the inner clause in Ext.Al on the execution of sale deed with respect to the entire plaint schedule property under Ext.A1? (4). Whether the defendant is justified in repudiating the contract for sale under Ext.Al? (5). Whether the plaintiff has failed to perform his part in the inner clause requiring payment of Rs.35 lakhs to the defendant for the execution of the sale deed with respect to 10 cents? (6). Whether the plaintiff has succeeded in proving that he has always been ready and willing to perform his part in Ext.Al agreement for sale? (7). Whether the proof of liquid cash in hand or in the Bank account of the buyer is essentially required to prove the readiness and **RFA.No. 253 of 2012** 19 willingness of the buyer to perform his part in the agreement for sale? (8). Whether the plaintiff is entitled to get sale deed executed in his favour as stipulated in Ext.Al. ## **Point No.1** **11. The learned counsel for the defendant vehemently contended that the suit was filed prematurely before the expiry of the term of contract and thereby the suit was not maintainable on that reason. So, the court below ought to have dismissed the original suit** _**in limine**_ **. It is true that the suit was filed before the expiry of the term of agreement. But, according to the plaintiff, before the expiry of the term of the contract for sale, the defendant herself repudiated the contract and informed him by sending Ext.A3 lawyer's notice and in that context, he was** **RFA.No. 253 of 2012** 20 **constrained to file the original suit, seeking specific performance of the contract before the expiry of term of contract. In** _**Vithalbhai (P) Ltd. v. Union of India**_ **[(2005)4 SCC 315], the Supreme Court held as follows: “ A suit of civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim, the relief founded on such cause of action is not to be necessarily dismissed for such reason”. Thereafter, the Supreme Court** ## **held as follows:** _“However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons_ **RFA.No. 253 of 2012** 21 _other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath[13] .) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained.”_ **12. Further, relying on the aforesaid decision, the Supreme Court in** _**Virgo Industries (Eng.) P.Ltd.(M/s.) v. M/s.**_ _**Venturetech Solutions P.Ltd.**_ **[2012 KHC 4492]** **held as follows: A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as 'the question of a suit being premature does not go to the root of the jurisdiction of the Court' as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of Inida, 2005(4) SCC 315'.** **13. In the light of the legal proposition postulated above, we find that** **RFA.No. 253 of 2012** 22 **there is no statutory bar under the Specific Relief Act,1963, requiring a plaintiff claiming the the relief of specific performance to wait till the expiry of the term of agreement for filing a suit for specific performance. The premature institution of a suit for specific performance does not render the presentation void, if the cause of action has already arisen and it will not got to the route of the jurisdiction. Moreover, when the defendant seller himself expressly repudiated the contract and informed the buyer by sending a Lawyer's notice, there is no need to wait till the expiry of the term of the agreement for sale, as the cause of action has already arisen before the expiry of the term of contract. It is needless to say, the repudiation of contact before the term of agreement would certainly give rise to the** **RFA.No. 253 of 2012** 23 **accrual of cause of action, before the expiry of the term of contract.** **14. In the above view, we hold that where the seller repudiated the contract for sale of an immovable property, the buyer can file a suit for specific performance, before the expiry of the term of contract for sale, as the cause of action has already arisen and such a suit cannot be dismissed as not maintainable. So, the court below is justified in finding that the suit is** **maintainable.** **Points 2 to 4** **15. The execution of Ext.Al agreement stands admitted by both parties, the seller and buyer. That apart, repudiation of the said contract by the seller/ defendant also stands admitted. According to the defendant, her repudiation from the contract is justified for the reason that the plaintiff failed to** **RFA.No. 253 of 2012** 24 **perform his part in the inner clause by paying Rs.35 lakhs to her and to get executed the sale deed with respect to 10 cents of property. In short, according to the defendant, the performance of the inner clause is a condition precedent for the performance of the entire agreement for sale under Ext.A1.** **16. In the above view, the point Nos. 1 to 4 assume significance and relevance. Since all these points are inter connected, these points are considered together. The question in controversy centers around the inner clause which reads as given below:-** “10.10.2009 ¥µÎÞÏß øIÞ¢ ·ÁáÕÞÏß 35,00,000/_ øâÉ øIÞ¢ µfß ÄàùáÕßÜÏßÜáZæM¿áJß ²KÞ¢ µfßAí ÈWµáK ÎáùÏíAí ²KÞ¢ µfß 30 æØaí ÕØñá çÎW ÕßÕøߺî ÕßÇ¢ ÄàùÞÇÞø¢ æºÏñá ÈWµÞæÎKí ØNÄߺîßøßAáKá. µÞÜÞÕÇßAí ¥µÎÞÏß çÎW ÕßÕøߺîßøßAáK dɵÞø¢ ¿ß ÕØñá ÄàæùÝáÄß ÕÞBÞÄßøáKÞW ¨ **RFA.No. 253 of 2012** 25 µøÞV ©¿O¿ß ØbÏ¢ ¥ØÞÇáÕÞÏß ÄàøáKÄᢠ¥ÁbÞXØÞÏß ÈWµßÏ øIÞ¢ µfßAí ” Ø¢¶c È׿æM¿áKÄáÎÞµáKá. **17. We have meticulously gone through the aforesaid clause. According to the aforesaid clause, if he 2[nd ] party/ the plaintiff pays Rs.35 lakhs, as the 2[nd ] instalment, towards consideration, the first party/defendant agreed that she will execute the sale deed with respect to 30 cents of** **property in favour of the 2[nd] party/ plaintiff. We further finds that the next two sentences after the said statement is very important and decisive in interpreting what was intended by the said clause. After the aforesaid statement, the agreement further says that if the 2[nd] party/ plaintiff fails to get the sale deed executed within the period of agreement, the agreement itself will stand automatically repealed and the 2[nd] party will lose the** **RFA.No. 253 of 2012** 26 **advance amount paid by him to the first party.** **18. On a close reading of the said clause, it could be seen that the inner clause is not made connected with the performance of the main contract, as a condition precedent, for the performance of the main contract with respect to the entire plaint schedule property. In other words, the execution of sale deed is not made contingent upon the performance of the inner clause. The aforesaid view is well discernible from the later sentence that 'if the 2[nd] party fails to get the sale deed executed “within the agreement period”, the agreement for sale itself will get automatically repealed'. Thus obviously, the plaintiff was allowed to perform his part of the contract till the expiry of the period of agreement. Indisputably,the period of agreement expires only on 10.10.2010. Thus,** **RFA.No. 253 of 2012** 27 **it can never be interpreted that the inner clause is a condition precedent or the execution of the sale deed with respect to the entire property is contingent upon the performance of the agreement for the execution of sale deed with respect to 30 cents of property.** **19. In the above analysis, we find that the inner clause to which the breach of contract is alleged, is not a condition precedent, for the performance of Ext.Al agreement. Therefore, it follows that even if the plaintiff has failed to pay Rs.35 lakhs to the defendant before 10.10.2009, the defendant could not have repudiated the contract on that ground as the same was not made a condition precedent for the execution of the sale deed with respect to the entire property. In short, the contract for sale was not a contingent** **RFA.No. 253 of 2012** 28 **contract.** **20. Further, we hold that since the inner clause was not a condition precedent or contingent clause, the failure of performance of that inner clause is of no consequence at all while considering the sustainability of repudiation made during the term of contract. The points No.2 to 4 are found against the defendant.** **Point No:5** **21. Then, the question to be considered is whether the plaintiff has failed to perform his part in the inner clause, as alleged by the defendant. In order to prove the readiness and willingness from his part, he was examined as PW1 and 3 other witnesses were examined as PW2 to PW4 and copy of Ext.A6 sale deed was also produced. On the other hand, the defendant was examined as DW1 and** **RFA.No. 253 of 2012** 29 **Ext.B2 was produced in evidence. Exts.A6 and B2 would prove that both parties were present in their respective document writers' office at different times on 12.10.2009. Ext.A6 would show that at 11.15 a.m., the plaintiff was present before the Sub Registrar Office and he witnessed the execution of the said sale deed. Similarly, Ext.B2 could prove that the defendant reached the SRO at 10.30 a.m.and signed as a witnesse in that document at 10.30 a.m. It stands undisputed that both of them did not meet at the SRO, though the defendant was present at 10.30 a.m. and the plaintiff was present at 11.15 a.m.on the same day. According to the oral evidence of the plaintiff as PW1, on 10.10.2009, he has deposited Rs.35 lakhs in his OD account maintained in Keezhathadiyoor Service Co-operative Bank and the same is** **RFA.No. 253 of 2012** 30 **evident from Ext.A15.** **22. Further, he deposed that when the defendant was not found in the SRO at 11.15 a.m., PW3, the broker, who involved in the sale transaction went to the house of the defendant. But, she was not found in the house. When PW3 reported the same, after few hours, he along with PW3 again went to the house of the defendant and at that time also she was not found in the house. The house of the defendant is very near to the SRO also. When the defendant was examined as DW1, she deposed that she was present in the SRO at 10.30 a.m. and she witnessed the execution of Ext.B2 sale deed and thereafter, she left the SRO. In order to corroborate the evidence of PW1, PW3 was also examined. Admittedly, he is the broker under whom the sale transaction was effected. It is pertinent to note that the** **RFA.No. 253 of 2012** 31 **defendant has not disputed his status as a broker in the Ext.A1 agreement for sale. PW3 has deposed in conformity with the evidence given by PW1, though PW1 and PW3 were cross examined, nothing has been brought to discredit or disbelieve their evidence.** **23. We are of the opinion that if the defendant had any** _**bona fide**_ **intention to execute the sale deed, certainly she would have remained in the SRO till the arrival of the plaintiff at 11.15 a.m. It gives rise to an inference that immediately after putting her signature in Ext.P2, she left the SRO immediately so as to avoid the meeting with the plaintiff. It follows that she witnessed the execution of Ext.B2 in order to make it to appear that she was present in the SRO at 10.30 a.m. She had no** _**bona fide**_ **intention to execute the sale deed in** **RFA.No. 253 of 2012** 32 **performance of the inner clause in Ext.A1. 24. The above view is supported by the reasonings for the repudiation of the contract put forward by the defendant herself. According to her, she was in urgent need of money. But the plaintiff has failed to pay money to satisfy her need. We have already held that the inner clause requiring payment of Rs.35 lakhs was not a condition precedent or contingent clause and no obligation was cast on the plaintiff to pay Rs.35 lakhs before 10.10.2009, as the inner clause was optional only. Therefore, we are unable to find fault with the plaintiff in not paying Rs.35 lakhs before 10.10.2009. Had she been in urgent need of money, certainly she would have incorporated necessary clause in making the inner clause as a condition precedent, for the performance of the contract. According to** **RFA.No. 253 of 2012** 33 **her, she wants to purchase 10 cents of property of her relatives for her elder son Sunil for constructing a house. Since the required amount was not paid by the plaintiff within the time, she could not purchase that 10 cents of property for his son and the seller of that property sold away the property to some other person.** **25. Further, she contended that her 2[nd] second son Anil was constructing a house by availing loan from the Bank. But the amount granted by the Bank by way of loan was not sufficient to meet the requirement and hence, she was in need of money for the construction of the house of the 2[nd] son. Since the plaintiff has failed to pay the amount as stipulated in the inner clause, his 2[nd] son Anil has availed another loan for the construction of his house. So there was no** **RFA.No. 253 of 2012** 34 **need of money, when the plaintiff urged for the execution of the sale deed.** **26. Further, it is contended that her present residential house is under the threat of acquisition for the expansion of PalaRamapuram road and if the acquisition is effected, 3/4[th] of the residential building could be acquired and she has no property other than the petition scheduled property for constructing another house. So She was not in a position to sell the property, as per Ext.A1.** **27. In the above context, the issuance of Ext.A2 legal notice on 14.10.2009 to the plaintiff assumes relevance and significance. One day after 12.10.2009, the defendant issued Ext.P2 notice intimating the plaintiff that she repudiated the contract and the plaintiff was called upon to receive back the advance** **RFA.No. 253 of 2012** 35 **amount of Rs.5 lakhs. In the pleadings as well as in evidence as PW1, the case put up for the repudiation of Ext.A1 agreement is that she was in urgent need of money and the plaintiff has failed to provide money to meet her urgent need. But in Ext.Al agreement for sale, there is no clause other than the aforesaid inner clause requiring or insisting the plaintiff to pay any amount to the defendant towards the sale consideration before the expiry of the term of agreement. In view of the issuance of Ext.A2 legal notice, immediately after the day fixed for the performance of the inner clause, it cannot be held that the aforesaid reasons were the cause of repudiation from the contract. Further, it gives rise to an inference that since the urgent need of money was over, by subsequent event relating to the purchase of** **RFA.No. 253 of 2012** 36 **10 cents of property for the elder son Sunil and the construction of house for his younger son Anil, she herself repudiated the contract, and on 10.10.2009, she was not ready or willing to perform her part of the inner contract. On the other hand, the evidence of PW1 and 3 coupled with Exts.A6 and A15 Bank statement of account would prove that the plaintiff was ready and willing to perform his part of the contract.** **28. In the above view, it can be held that the defendant was not ready and willing to perform his part of contract, while the plaintiff was ready and willing to perform his part of the contract requiring execution of the sale deed with respect to 30 cents of property. So also, it has come out in evidence that plaintiff has always been ready and willing to perform his part of the contract** **RFA.No. 253 of 2012** 37 **for sale, before and after the passing of decree in favour of him. Point No.5 is found in favour of the plaintiff.** **Point No.6** **29. The question is, whether the evidence on record would show that the plaintiff/buyer was nursing a ready and willing mind to get the sale deed executed till the expiry of the term of agreement and it can be inferred from his conduct evidenced by the sequences of events from 12.09.2009 to 10.10.2010.** **30. It has come out in evidence from the examination of PWs.1 to 4 and Exts.A16 and A15 statement of account that the plaintiff is a business man, having a timber mill and doing timber business in a large scale. Exts.C1 and C2 report coupled with oral evidence of PW.1, PW.2 and PW.3 would show that, his timber mill is situated adjacent to the plaint schedule** **RFA.No. 253 of 2012** 38 **property. Here, it is the case of the plaintiff that he was in dire need of plaint schedule property lying adjacent to his timber mill for the expansion of his timber business, and he was in search of such a neibouring property lying adjacent to the mill for purchasing it for the expansion of the business. The said fact was evidenced by Ext.B16 coupled with the oral evidence of PW.4, with whom, Ext.B16 was executed. Ext.B16 would show that one year before the execution of Ext.A1, the plaintiff entered into an agreement with PW.4 for importing timber and stocking it in his timber mill. Thus, the plaintiff has succeeded in proving that he was in search of neibouring property for the development of his timber business. More importantly, in the aforesaid evidence would shatter the defence contention that the** **RFA.No. 253 of 2012** 39 **plaintiff is a Real Estate Businessman and he entered into Ext.A1 with an intention to sell the property to a third party during the agreement period and he is not a true purchaser. On the contrary, the aforesaid evidence unambiguously proved that the plaintiff was a genuine purchaser, who entered into Ext.A1 agreement with a** _**bona fide**_ **need, to purchase the property for the development of his business.** **31. Exts.C1 and C2 reports coupled with Exts.A16 and A15 Bank statements would show that the plaintiff is a businessman having sound financial transaction. It follows that he has sufficient capacity to raise required fund to purchase the property under Ext.A1. The above view is further fortified by his ability to raise abruptly Rs.35,00,000/- at one time, on 10.10.2009.** **RFA.No. 253 of 2012** 40 **32. The learned counsel for the defendant contended that the said Rs.35,00,000/- was adjusted towards the amount due to the bank immediately after the deposit and the balance was only Rs.10,00,000/-. But, we are unable to agree with the said submission, because in an overdraft facility, every payments must be credited towards the amount due to the bank with a facility to withdraw any amount within the limits of overdraft, as and when required. Thus, even though Rs.35,00,000/- was stood credited and the balance was shown as Rs.10,00,000/-, he could have withdrawn that Rs.35,00,000/- on 12.12.2009, for effecting payment to the defendant, for purchasing 30 cents of property.** **33. Further, on receipt of Ext.A2 legal notice sent by the defendant informing the repudiation of the contract, the plaintiff** **RFA.No. 253 of 2012** 41 **sent Ext.A3 notice requiring the defendant to execute sale deed, after receiving full consideration from him, and made a request to inform convenient date for execution of sale deed, after receiving the balance consideration. But, the defendant has not responded to the said request and she stood by the repudiation. Thus, Ext.A3 further shows, the plaintiff's readiness and willingness to perform from his part of the contract, as agreed under Ext.A1.** **34. The above observation is further fortified by the deposit of entire sale consideration, in compliance with the decree passed in his favour for execution of the sale deed, after the passing of the decree. Thus, the entire facts and circumstances, and sequences of events evidenced by the oral testimony of PWs.1 to 4 and Exts.A3, A15, A16,** **RFA.No. 253 of 2012** 42 **A13 draft sale deed and Ext.14 survey plan would prove that he had capacity to raise required funds to execute the sale deed, under Ext.A1 before and after the decree. In other words, he was always ready ad willing to execute the sale deed, after paying full balance consideration. But, by Ext.A1 the defendant informed him that she has repudiated the contract. Since the defendant unilaterally repudiated the contract, before the expiry of the agreement period, and did not respond to Ext.A3 letter sent to the defendant, the plaintiff is justified in not keeping the entire balance consideration in his account to show his readiness and willingness. Where the seller unilaterally repudiated the contact, the buyer is not expected to make available the required fund in his bank account.** **RFA.No. 253 of 2012** 43 **35. Moreover, Ext.A19 to A12 would show that, on receipt of Ext.A2 letter sent by the defendant, before the expiry of the term of agreement, the plaintiff rushed to the court and filed O.S. No.225 of 2009, seeking an order of injunction restraining the defendant from alienating to the property to others and obtained a temporary order of injunction to that effect. Thus, it shows that he was honestly and sincerely in desirous of purchasing the plaint schedule property, and he has always been ready and willing for the same though the defendant repudiated the contract unilaterally, without sufficient cause.** **Point No.7** **36. Whether the proof of liquid cash in hand or kept in bank account of the buyer is essentially required to prove the readiness** **RFA.No. 253 of 2012** 44 **and willingness of the buyer to perform his part, in the agreement for sale. The readiness and willingness of a buyer and seller under an agreement for sale is a fact in issue, which could be inferred from the conduct of them, after the execution of the agreement for sale and before the expiry of the term of agreement. Generally, an agreement for sale would come into existence at the instance of the buyer, when he is not ready with full consideration in his hand or bank account for the execution of the sale deed and he wants time to raise required fund. It is true that in some cases, the seller also requires time for making the title deeds and other revenue records available for the execution of the sale deed. Thus, in almost all cases, the term of agreement is the time granted to the buyer to raise the required fund and make it** **RFA.No. 253 of 2012** 45 **ready with him in his hand or bank account. Therefore, buyer is not expected to be with entire money in hand or in bank account always during the period of agreement. If the buyer has entire amount in hand, the sale deed can be executed, without an agreement for sale. In some cases, the buyer may get money at the last moment, just before the expiry of term of agreement. A few people alone can keep money in hand or bank account always. Commonly, money would be raised as and when required, in different ways from different sources, which are known to each person alone. Therefore, we are of the opinion that proof of liquid cash in hand or in bank account of the buyer, is not an essential factor to be brought out in evidence, to prove the readiness and willingness of the buyer to perform his part. So also, it is not a conclusive proof of** **RFA.No. 253 of 2012** 46 **readiness and willingness of the buyer and it cannot be insisted to prove readiness and willingness of the buyer. In a case wherein the seller himself repudiated the contract, before the expiry of the period of agreement for sale, the buyer is not essentially required to prove the availability of liquid cash in hand or in bank account. No doubt, if such a proof is available on record, it is well and good; but it cannot be insisted invariably in all cases; disregarding the facts and circumstances in each cases. The above view is fortified by the decision of the Apex Court in** _**Sukhbir Singh v. Briji Pal Singh**_ **[1996 KHC 490],** _**Azhar Sultana v. B. Rajamani and Others**_ **[2009 KHC 4404] and** _**Smt. Indira Kaur and Others v. Shri. Sheo Lal Kapoor**_ **[1988 KHC 670].** **RFA.No. 253 of 2012** 47 ## **Point No.8** **37. In the above analysis, we also concur with the findings of the court below that the plaintiff has succeeded in proving that he has always been ready and willing to perform his part by paying the balance consideration; but the defendant was not ready and willing to perform his part in the agreement for sale of the plaint schedule property and she repudiated the contact for sale arbitrarily and abruptly, without sufficient reason. At any view point, the repudiation is not justifiable. We also concur with the findings of the court below that the plaintiff is entitled to get the sale deed executed in his favour, as stipulated in Ext.A1 So, we do not find any reason to interfere with the judgment and decree under challenge. Thus, this appeal fails.** **RFA.No. 253 of 2012** 48 **38. The plaintiff has already deposited the balance sale consideration in sub treasury Meenachil and the same now stands converted to fixed deposit in Nationalised Bank, as per the interim order of this Court dated 17.03.2017 in I.A. No.623 of 2017 filed by the plaintiff. The defendant shall execute the sale deed with respect to the plaint schedule property, without encumbrance, after satisfying the plaintiff as to the extent of property available for sale, by measuring the property and hand over possession to the plaintiff, within a period of five months from today. After the execution of the sale deed, the defendant can withdraw the balance sale consideration alone from the amount which stands in the fixed deposit. If the defendant fails to execute the sale deed as ordered above, within the specified time limit, on** **RFA.No. 253 of 2012** 49 **expiry of the same, the plaintiff can move the court to execute a sale deed in his favour, by the court, on behalf of the defendant. The plaintiff is allowed to recover cost.** **This appeal is dismissed accordingly.** Sd/- **K.HARILAL, JUDGE.** Sd/- **ANNIE JOHN, JUDGE.** RKM/DST