Muhammedkutty v. Dhanya (RFA Nos. 62 and 138 of 2014)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943** **RFA NO. 62 OF 2014** **AGAINST THE DECREE AND JUDGMENT IN OS 507/2012 DATED** **11.09.2013 OF SUB COURT, KARUNAGAPPALLY** ## **APPELLANT/PLAINTIFF:** **1 MUHAMMEDKUTTY AGED 74 YEARS S/O.IBRAHIMKUTTY, NAVAS MANZIL, VENGA MURI,MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK. (DIED LRS IMPLEADED)** ## **ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED** **2 MUTHU BEEVI AGED 70 YEARS W/O.LATE MUHAMMEDKUTTY, NAVAS MANZIL (KUTTIYIL VADAKATHIL) VENGA P.O., SATHAMCOTTA, KOLLAM690521** **3 SHANAVAS.M., AGED 51 YEARS S/O.LATE MUHAMMEDKUTTY, AL.NOOR (KUTTIYIL VADAKATHIL) EDAVANASSERY, MYNAGAPPALLY P.O. KOLLAM 690 521** **4 NOUPHAL .M., AGED 50 YEARS S/O.LATE MUHAMMEDKUTTY, NAVAS MANZIL (KUTTIYIL VADAKATHIL) VENGA P.O., SATHAMCOTTA, KOLLAM690521** **5 NOUSHAD.M., AGED 46 YEARS S/O.LATE MUHAMMEDKUTTY, NAVAS MANZIL (KUTTIYIL VADAKATHIL) VENGA P.O., SATHAMCOTTA, KOLLAM690521** **LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS A2 TO A5 VIDE ORDER DATED 12.03.19 IN IA 3/19** R.F.A Nos.62 and 138 of 2014 -: 2 :- **BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.T.SIVADASAN SRI.VINOD RAVINDRANATH SMT.MEENA.A. SMT.P.A.SHEEJA** ## **RESPONDENTS/DEFENDANTS:** **1 DHANYA AGED 31 YEARS D/O.SUDHARMMA, RESMIYIL VEEDU, MAROOR P.O.,MAROOR MURI, ENADI MANGALAM VILLAGE,PATHANAMTHITTA DISTRICT - 691 524. 2 SUDHARMMA AGED 57 YEARS W/O.GOPINATHAN, RESMIYIL VEEDU, MAROOR P.O.,MAROOR MURI, ENADI MANGALAM VILLAGE,PATHANAMTHITTA DISTRICT - 691 524.** **ADDL R3 DR.SABU MUHAMMED, S/O.LATE MUHAMMED KUTTY, AGED 41, KUTTIYIL VADAKATHIL (MAHASIL), VENGA P.O, MYNAGAPPALLY, KOLLAM - 690521** **ADDL R4 SHIBU MUHAMMED, S/O.LATE MUHAMMEDKUTTY, AGED 39, NAVAS MANZIL (KUTTIYIL VADAKATHIL) VENGA P O, SATHAMCOTTA, KOLLAM - 690521** **ADDL RESPONDENTS 3 & 4 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT AS PER ORDER DATED 12.03.2019 IN IA 3/19** **ADV B.RAGUNATHAN R1, R2** **ADV G.GOPALAKRISHNA PILLAI R1, R2 ADV M.SALIM R1, R2 ADV R.SRINATH R1, R2 ADV V.M.JACOB R1, R2 ADV M.M. LALBIND R1, R2** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, ALONG WITH RFA.138/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A Nos.62 and 138 of 2014 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943** **RFA NO. 138 OF 2014** **AGAINST THE JUDGMENT AND DECREE IN OS 507/2012 DATED** **11.09.2013 OF SUB COURT, KARUNAGAPPALLY** ## **APPELLANTS/DEFENDANTS:** **1 DHANYA AGED 32 YEARS D/O.R.SUDHARMA,RESMIYIL VEEDU,MAROOR.P.O,MAROOR MURI,ENADI MANGALAM VILLAGE,PATHANAMTHITTA DISTRICT.** **2 R.SUDHARMA AGED 60 W/O.GOPINATHAN,-DOBY ADVS. SRI.B.RAGHUNATHAN SRI.G.GOPALAKRISHNA PILLAI SRI.V.M.JACOB SRI.M.SALIM SRI.R.SRINATH** ## **RESPONDENT/PLAINTIFF:** **1 MUHAMMAD KUTTY AGED 75 YEARS S/O.IBRAHIMKUTTY, NAVAS MANZIL, VENGA MURI,MYNAGAPPALLY VILLAGE,KUNNATHOOR TALUK,KOLLAM DISTRICT-690540.** **(DIED LRS IMPLEADED)** **ADDITIONAL R2 TO R7 ARE IMPLEADED** R.F.A Nos.62 and 138 of 2014 -: 4 :- **ADDL.R2 SMT.MUTHU BEEVI, W/O.LATE MUHAMMEDKUTTY, NAVAS MANZIL, (KUTTIYIL VADAKATHIL), VENGA P.O., SASTHAMCOTTA, KOLLAM690 521.** **ADDL.R3 SHRI.SHANAVAS.M., S/O.LATE MUHAMMEDKUTTY, AL.NOOR, (KUTTIYIL VADAKATHIL), EDAVANASSERY, MYNAGAPPALLY P.O., KOLLAM- 690 521. ADDL.R4 SHRI.NOUPHAL M., S/O.LATE MUHAMMEDKUTTY, NAVAS MANZIL, (KUTTIYIL VADAKATHIL), VENGA P.O., SASTHAMCOTTA, KOLLAM690 521. ADDL.R5 SHRI.NOUSHAD.M W/O.LATE MUHAMMEDKUTTY, NAVAS MANZIL, (KUTTIYIL VADAKATHIL), VENGA P.O., SASTHAMCOTTA, KOLLAM690 521. ADDL.R6 SHRI DR.SABU MUHAMMED, S/O.LATE MUHAMMEDKUTTY, KUTTIYIL VADAKATHIL(MAHASIL), VENGA P.O., MYNAGAPPALLY, KOLLAM-690 521. ADDL.R7 SHRI.SHIBU MUHAMMED, W/O.LATE MUHAMMEDKUTTY, NAVAS MANZIL, (KUTTIYIL VADAKATHIL), VENGA P.O., SASTHAMCOTTA, KOLLAM690 521.** **LRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL R2 TO ADDITIONAL R7 VIDE ORDER DATED 9/7/19 IN IA 3/19. BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.K.C.KIRAN SMT.MEENA.A. SMT.P.A.SHEEJA** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, ALONG WITH RFA.62/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A Nos.62 and 138 of 2014 -: 5 :- **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.F.A Nos.62 and 138 of 2014 ----------------------------------------------Dated this the 15[th] day of February, 2022** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** These appeals arise from O.S.No.507 of 2012 on the files of the Sub Court, Karunagappally. The said suit was one for specific performance of an agreement for sale. R.F.A.No.62 of 2014 is by the plaintiff and R.F.A.No.138 of 2014 is by the defendants in the suit. 2. The first defendant owns an item of property in Sy. No.556/09 of Sooranad South Village and she is running an aided school therein. The second defendant is the mother and power of attorney holder of the first defendant. On 17.01.2009, the first defendant agreed to sell 91 cents out of the said property with the right to run the school to the plaintiff for a consideration of Rs.55 lakhs and received a sum of Rs.10 lakhs from him on that day by way of advance sale consideration. As per the terms of the agreement, the plaintiff ought to have purchased the land after paying the balance sale consideration R.F.A Nos.62 and 138 of 2014 -: 6 :- on or before 30.04.2009. It is provided in the agreement that the first defendant will measure the property and prepare a sketch carving out the 91 cents of property and the school building to be transferred to the plaintiff for appending the same to the document to be executed in terms of the agreement. The suit was instituted alleging that though the plaintiff was ready and willing to pay the balance sale consideration and obtain sale deed in respect of the property covered by the agreement, the defendants refused to execute the document in respect of the property for one or other reason. The prayer in the suit, therefore, was for specific performance of the agreement for sale in respect of the plaint schedule property covered by the agreement. There was an alternative prayer in the suit for return of the advance sale consideration. 3. The second defendant filed a written statement on her behalf and also on behalf of the first defendant contending mainly that although the property was measured and a plan of the plaint schedule property was prepared with notice to the plaintiff on 25.02.2009, the plaintiff did not come forward with the balance sale consideration within the time R.F.A Nos.62 and 138 of 2014 -: 7 :- stipulated or thereafter, and it is due to the said reason that the plaint schedule property could not be transferred to the plaintiff in terms of the agreement. The defendants therefore prayed for dismissal of the suit. As regards the alternative prayer, the stand taken by the defendants in the written statement was that insofar as the plaintiff did not pay the balance sale consideration within the time stipulated in the agreement, the advance sale consideration is liable to be forfeited and the plaintiff is therefore, not entitled to the alternative prayer as well. 4. The plaintiff gave evidence as PW1. Two other witnesses were also examined on the side of the plaintiff as PW2 and PW3. Exts.A1 to A14 were the documents proved on the side of the plaintiff. On the side of the defendants, the second defendant gave evidence as DW1. DW2 is a witness examined on the side of the defendants. Exts.B1 to B4 were the documents proved on the side of the defendants. 5. Among the documents proved on the side of the plaintiff, Ext.A1 is the agreement for sale, Ext.A4 is the lawyer notice caused to be issued by the plaintiff to the second defendant calling upon her to accept the balance sale R.F.A Nos.62 and 138 of 2014 -: 8 :- consideration and transfer the plaint schedule property to the plaintiff and Ext.A5 is the reply notice caused to be sent by the second defendant to Ext.A4 lawyer notice. Among the documents proved on the side of the defendants, Ext.B2(a) is the sketch of the plaint schedule property allegedly prepared by DW2 at the instance of the second defendant in furtherance to the agreement for sale. 6. Although the court below found that the defendants have not prepared the sketch of the plaint schedule property as provided for in the agreement with notice to the plaintiff, the suit was dismissed holding that the plaintiff was not ready and willing to pay the balance sale consideration within the time stipulated in the agreement inasmuch as he has not established that he had the funds sufficient for payment within the time stipulated. In the light of the finding rendered by the court below that the defendants have not prepared the sketch of the plaint schedule property as provided for in the agreement with notice to the plaintiff, the court below has rejected the contention of the defendants that the advance sale consideration is liable to the forfeited also. In the circumstances, the court below passed a decree directing the R.F.A Nos.62 and 138 of 2014 -: 9 :- defendants to return the advance sale consideration with interest and costs. The plaintiff is aggrieved by the decision of the court below inasmuch as he is denied the decree for specific performance, and the defendants are aggrieved by the decision of the court below inasmuch as it enables the plaintiff to realise the advance sale consideration with interest and costs from the defendants. Hence, these appeals. 7. Heard the learned counsel for the plaintiff as also the learned counsel for the defendants. 8. The learned counsel for the plaintiff contended that in a case of this nature, where there is a reciprocal promise to be performed by the defendants for the plaintiff to be ready and willing to perform the remaining part of his obligations under the agreement, the court below ought not have denied the decree for specific performance sought by the plaintiff insofar as it is found that the defendants have not performed the reciprocal promise in the agreement to measure and carve out the plaint schedule property by preparing a plan with notice to the plaintiff. It was also argued by the learned counsel that it is not necessary for the plaintiff in a suit for specific performance to adduce evidence to show that he had the R.F.A Nos.62 and 138 of 2014 -: 10 :- balance sale consideration with him and what the court needs to see is only as to whether the plaintiff is a person who has the ability to raise and pay the balance sale consideration. The learned counsel has relied on the decision of this Court in **Faizal Eroth v. Venkalath Raveendran** , 2013 (3) KHC 407, in support of the said proposition. In order to show that the plaintiff is a person who has the ability to raise and pay the balance sale consideration, the learned counsel has brought to our notice the evidence on record indicating that the children of the plaintiff are all well placed and that the plaintiff and his children have purchased a few items of immovable properties in the recent past and argued that the court below, in the circumstances, ought not have denied the plaintiff the decree for specific performance sought by him on the ground that he has not established that he had the balance sale consideration with him. The learned counsel has also brought to our notice the recent amendments to the Specific Relief Act, 1963 and submitted, relying on the judgment of the Apex Court in **Sughar Singh v. Hari Singh (Dead) through Lrs.** , 2021 (4) KLJ 664, that even though the amendments cannot be said to be retrospective, the amended provisions in the Specific Relief R.F.A Nos.62 and 138 of 2014 -: 11 :- Act shall be a guide to the court while exercising the discretionary jurisdiction to order specific performance. In short, the submission of the learned counsel is that the court below ought to have ordered specific performance of the agreement for sale. 9. Per contra, the learned counsel for the defendants submitted that there is absolutely no justification to interfere with the decision of the court below to decline the decree for specific performance sought by the plaintiff. It was argued by the learned counsel that the demand for compliance of the terms of the agreement came from the plaintiff in the form of lawyer notice only after about 17 months after the expiry of the time limit prescribed for payment of the balance sale consideration and the said circumstance alone is sufficient to justify the decision of the court below that the plaintiff was not ready and willing to perform his part of the obligations under the agreement. It was also pointed out by the learned counsel that in Ext.A4 lawyer notice caused to be issued by the plaintiff to the second defendant, there was no whisper about the alleged failure on the part of the defendants to perform the reciprocal promise highlighted by the plaintiff in the plaint R.F.A Nos.62 and 138 of 2014 -: 12 :- namely, the preparation of a sketch carving out the plaint schedule property from the larger extent of property held by the first defendant. It was argued by the learned counsel that in the said circumstances, it could be certainly inferred that the stand of the plaintiff in the plaint that he did not pay the balance sale consideration for want of a sketch of the plaint schedule property is incorrect. As regards the appeal preferred by the defendants, the learned counsel submitted that the court below was not justified in granting a decree directing the defendants to return the advance sale consideration. The learned counsel has relied on the decision of the Apex Court in **Satish Batra v. Sudhir Rawal** , (2013) 1 SCC 345 as also the decision of this Court in **Susheela (Died) and Others v. T.M.Muhammedkunhi** , 2012 (1) KHC 508, in support of the said contention. Alternatively, it was argued by the learned counsel that at any rate, insofar as it was found that the plaintiff was not ready and willing to perform his part of the obligation under the agreement, the court below ought not have directed the defendants to pay the costs of the suit to the plaintiff. It was also argued by the learned counsel that there was also no justification for the court to order interest at the R.F.A Nos.62 and 138 of 2014 -: 13 :- rate of 10% per annum on the advance sale consideration directed to be returned to the plaintiff. To a query from the court as to whether the defendants have offered to return the advance sale consideration to the plaintiff at any point of time, the answer given by the learned counsel was that the advance sale consideration was not offered back since the plaintiff has attached the plaint schedule property in the meanwhile. 10. We have perused the records and given a thoughtful consideration to the submissions made by the learned counsel for the parties on either side. 11. In the light of contentions raised by the learned counsel for the parties, the points arising for consideration are (1) whether the court below was justified in declining the plaintiff the decree sought by him for specific performance of the agreement for sale on the ground that he has not established readiness and willingness to perform his part of the obligations under the agreement and (2) whether the court below was justified in granting a decree for return of the advance sale consideration to the plaintiff within interest and costs. 12. Point No.1: In the light of Section 16(c) of the R.F.A Nos.62 and 138 of 2014 -: 14 :- Specific Relief Act, it is mandatory for a person seeking a decree for specific performance to prove that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms, the performance of which has been prevented or waived by the defendant. It is trite that the term "readiness" in the statutory provision, in the context of an agreement for sale of immovable property includes, among others, the financial capacity of the plaintiff to pay the purchase price, and the term "willingness" therein in the said context refers to the preparedness of the plaintiff to perform his part of the obligations under the contract. The factum of readiness and willingness on the part of the plaintiff is one to be judged with reference to the conduct of the parties and the attending circumstances. 13. As far as the present case is concerned, the fact that the plaintiff did not pay the balance sale consideration within the time stipulated in the agreement is not in dispute. According to the plaintiff, he did not pay the balance sale consideration within the time stipulated since the defendants did not prepare the sketch of the plaint schedule property after ## R.F.A Nos.62 and 138 of 2014 -: 15 :- measuring the same in terms of the agreement, whereas, according to the defendants, they have prepared Ext.B2(a) sketch after measuring the plaint schedule property in terms of the agreement and intimated the same to the plaintiff and it is because the plaintiff did not have the amount required to pay the balance sale consideration with him that he did not obtain sale in respect of the property. As rightly pointed out by the learned counsel for the plaintiff, it is not necessary for the plaintiff in a suit for specific performance of an agreement for sale to keep with him the full amount of the balance sale consideration before the last date fixed for payment of the balance sale consideration to show his readiness and what is to be seen is the ability of the plaintiff to raise and pay the balance sale consideration within the time stipulated. It has come out in evidence that the children of the plaintiff are well placed and that during the relevant period, the plaintiff and his children were dealing with amounts similar to the amounts agreed to be paid by them for purchasing the plaintiff schedule property. In the light of the said materials, we are of the view that it cannot be said that the plaintiff was not ready to perform the obligations under the agreement for sale. But, at the same R.F.A Nos.62 and 138 of 2014 -: 16 :- time, from the materials on record, we are not convinced that the plaintiff was willing to pay the balance sale consideration and obtain sale deed in respect of the plaint schedule property within the time stipulated in the agreement. The first and foremost reason which prompted us to come to the said finding is that as pointed out by the learned counsel for the defendants, although the time prescribed in the agreement for payment of the balance sale consideration and for obtaining sale deed in respect of the plaint schedule property from the defendants expired on 30.04.2009, the plaintiff demanded compliance of the terms of the agreement for sale in terms of Ext.A4 lawyer notice only after about seventeen months. There is no satisfactory explanation from the plaintiff to justify the said delay, if he was ready and willing to pay the balance sale consideration and get the sale deed of the plaint schedule property within the time stipulated in the agreement. That apart, there is no mention in the lawyer notice that the plaintiff did not pay the balance sale consideration for want of sketch in terms of the agreement for sale. If as a matter of fact, the reason for not paying the balance sale consideration within the time stipulated was as pleaded by the plaintiff in the plaint, viz, R.F.A Nos.62 and 138 of 2014 -: 17 :- that the defendants did not take necessary steps to prepare the sketch in terms of the agreement, the same would have been certainly stated in the lawyer notice. It is thus clear that as found by the court below, even though the defendants have not complied with the term in the agreement for sale to prepare the sketch of the plaint schedule property with notice to the plaintiff, it is not on account of the said reason that the plaintiff did not pay the balance sale consideration to the defendants and obtain sale deed in respect of the plaint schedule property within the time stipulated. We take this view also for the reason that there were a few cases pending before this Court at the relevant time concerning the service of a few staff of the school which was functioning in the plaint schedule property, and the various questions put by the learned counsel for the plaintiff to the second defendant during her cross examination would show that the plaintiff was in doubt as to whether permission is required to be obtained from the Government for the purpose of effecting the transfer of plaint schedule property and also as to whether he could get the management of the school transferred in his name on purchase of the property, even if prior permission of the Government is not required for R.F.A Nos.62 and 138 of 2014 -: 18 :- effecting transfer of the property in the light of the pending litigations. The relevant portion of the cross examination of the second defendant reads thus: “ ന�ങൾക� എത�ര� ഹ�കക�ടത�യ�ൽ ക�സ� ഉണ�യ���നക��?(Q) ക�സ� ഉണ�യ���ന�, ക�സ� തള�ക��യ� (A) ന�ങൾ വ�ദ�യ�� പ ത�യ�മ�യ� എപത ക�സ��ൾ നടത�യ�ട�ണ� ?(Q) High Court -ൽ �ണ� ക�സ� ഉണ�യ���ന�, �ണ� ക�സ�� തള� ക �യ�. ���ർ ��ല�വധ�ക� ക(ഷവ�� High Court -ൽ ക�സ� ന�ല ന�ൽക��യ�യ���നക��?(Q) ആയ���ന�. (A) ഒ�� തസ-��യ�ല�ള ന�യമനത�ന� ഒന�ൽ �.ട�തൽ ആള��ള�രട �യ�ൽ ന�ന� ണ� വ�ങ�രക�ണ� ലര�യ�� ന�യമ�ച�തന�ന�യ���നക�� ക�സ�? (Q) ണ� വ�ങ�ച�ട��, ഒ�� തസ-��യ�കലക� ഒന�ൽ �.ട�തൽ ആള��രള ന�യമ�ച�ട��, paper -ൽ . �സ3� നൽ��യ�ണ� ന�യമന� നടത�യത� ന�ങള�രട school കലക� 3.ണ�യ� ��ജ5വ�രനയ�� ജയ��മ�റ�രനയ�� ഒ�� തസ-��യ�കലക� ന�യമ�ചത�ന�യ���നക�� ക�സ�?(Q) ഞ�ൻ ��ജ5വ�രന എന�രറ school ൽ ന�യമ�ച�ട��, ഞ�ൻ പതത�ൽ �സ3� ര9യ-� . W.P.C. No. ജയ��മ�റ�രനയ�ണ� ന�യമ�ചത� 25919 /2007 (I) ��ജ5വ� ന�ങൾക� എത�ര� ര��ട�ത case ന�രറ വ�ധ� �ർ�ണക�� ഈ R.F.A Nos.62 and 138 of 2014 -: 19 :- ��ണ�ചത� ?(Q) (Plaintiff Advocate shown a document in his custody) അരത (A) ഈ case രല വ�ദ�രയ ന�ങൾ High Court -രല case �ള�രട വ�വ�� റഞ� ���ർ പ ���� വസ-� വ�ലയ�ധ��� എഴ�ത�ര��ട�ക�നത�ന� ��ലത�മസര�ട�ത� വന�ട�ളത�ണക��?(Q) അ� (A) ഈ case വ�ലയ�ധ��� നടത�നത�ന� . യ�രത��� തടസവ�മ�� തടസമ�ര�ന� ഇക��ൾ റയ��യ�ണക��(Q) തടസമ�രണന� വ�ദ�രയ വ�(@സ���ച�ണക�� ���ർ ന5ട�രക�ണ� ക �യത� ?(Q) യ�രത��� തടസവ�മ��, വ�ദ�കയ�ട� അങരന റഞ�ട�മ�� (A) അങരന വ�ദ�കയ�ട� റഞ�ട�� എന� ഇക��ൾ �ളവ�യ� റയ��യ�ണക��?(Q) അ�, �ളവ�യ� റയ��യ� (A) Kerala Education Rules school അന�സ��ച� ഉ� അത�ന�രറ നടത��� അവ��(വ�� ഹ�മ�റ� ര9യ�കB�ൾ education Department -ൽ ന�ന� മ�ൻ�.ട� അന�മത� വ�ങണമക��?(Q) ഇക��ൾ അന�മത� വ�ങ�കകണ, വ�ലയ�ധ��� �ഴ�ഞത�ന� ക(ഷ� management മ�റ�യ�ൽ മത�. വ�ലയ�ധ��� വ�ങ�യത�ന� ക(ഷ� മ�റ�യ�ൽ മത� എന� case ന�രറ ആവ(3ത�ന� �ളവ� റയ��യ�ണക��?(Q) അ� (A) School ഉ� അത�ന�രറ നടത��� അവ��(വ�� ഹ�മ�റ� ര9യ�നത�ന� ���റ�ന� ക(ഷ� R.F.A Nos.62 and 138 of 2014 -: 20 :- ന�ങൾ, education Department -ൽ ന�ന� അന�മത� വ�ങ�യ���കന�?(Q) ���റ�ന� ക(ഷ� വ�ങ�കകണ ആധ��� നടനത�ന� ക(ഷ� നടന�ൽ മത� (A) അത� ���റ�ല�� ഞ�ൻ റഞ�ട�ണ�. ���റ�ൽ ന�ങൾ അങരന മനC .ർവ� എഴ�ത� ക9ർത�ട�ളത�ണക�� ?(Q) അ�, അത�ണ� ന�യമ� (A) ���റ�ന� ക(ഷ� വ�ദ� അകന@ഷ�ചക��ൾ School ഹ�മ�റ� ര9യ�നത�ന� മ�ൻ �യ� അന�മത� കവണരമന� അറ�യ��യ�� ആ വ�വ�� ന�ങരള അറ�യ�ക��യ�� ര9യ-�ട�ളത�ണക�� ?(Q) എരന ഒന�� അറ�യ�ച�ട�� (A)” In the circumstances, though on different grounds, we are in agreement with the finding rendered by the court below that the plaintiff was not ready and willing to pay the balance sale consideration and obtain the sale deed in respect of the plaint schedule property from the defendants before the time limit prescribed in the agreement. Point No.1 is answered accordingly. 14. Point No.2: Ext.A1 agreement for sale provides that if the plaintiff fails to pay the balance sale consideration within the time stipulated therein, the first defendant will have the right to utilise the plaint schedule property according to her R.F.A Nos.62 and 138 of 2014 -: 21 :- will and pleasure and in that event, the plaintiff will have neither power nor right to claim the advance sale consideration paid in terms of the agreement. The said clause in the agreement reads thus: “WHEREAS the purchaser agrees that if he fails to pay the balance of the consideration, (Rupees 45 lakhs only) as stipulated, within the period mentioned above the vendor will have the right and power to utilise the said properties according to her will and pleasure and in that event, the purchaser will have neither power nor right to claim the earnest money (advance) (Rupees 10 lakhs only) received by the vendor on this day. It is made clear that time is an essence of this contract.” As seen from the extracted clause, Rs.10 lakhs paid by the plaintiff to the defendants in terms of the agreement is styled as “earnest money” also and it appears that it is on account of the said reason that the learned counsel for the defendants contended that since the plaintiff has failed to pay the balance sale consideration within the time stipulated, the advance sale consideration is liable to be forfeited. 15. Earnest money is paid or given at the time when the contract is entered into as a pledge for its due performance. It serves two purposes of being part payment of purchase money and security for performance of the contract. That apart, earnest money shall also be a reasonable and R.F.A Nos.62 and 138 of 2014 -: 22 :- genuine pre-estimate of the damage that may be caused to a party in the event of breach of the agreement [see **Soji Peter v. K.B.Vijayan** , 2017 SCC OnLine Ker 10150]. The words used in the agreement alone would not be determinative of the character of the earnest money, but its character needs to be determined based on the intention of the parties and surrounding circumstances [see **Videocon Properties Ltd. v.** **Dr. Bhalchandra Laboratories** , (2004) 3 SCC 711]. In an agreement for purchase of immovable property, the forfeiture clause will not apply when the payment is made only towards part payment of consideration and not intended as earnest money [see **Satish Batra** ]. It is now settled that if the amount received as advance bear a sizeable proportion to the total sale consideration, it cannot, by any stretch of imagination, be stated as earnest money. The amount paid, in such circumstances, can be inferred not as earnest money paid by way of security for performance of contract, but as advance paid as part of the sale consideration to be adjusted at the time of execution of the sale deed. 16. Reverting to the facts of the case on hand, the advance sale consideration paid works out to be almost 20% of R.F.A Nos.62 and 138 of 2014 -: 23 :- the total sale consideration agreed to be paid in terms of the agreement for sale. There are no indications also in the agreement for sale for the court to infer that the said payment was intended only to be the security for performance of the contract. In the circumstances, we are of the view that the first defendant is not entitled to forfeit the amount paid in terms of Ext.A1 agreement for sale. The court below is, therefore, justified in granting a decree for return of the advance sale consideration. The court below has ordered interest to be paid on the advance sale consideration only if the defendants opt not to return the advance sale consideration within two months from the date of the decree. There is absolutely no illegality in directing payment of interest on the advance sale consideration, if the defendants choose to retain the same even after two months from the date of the decree. 17. As noted, it is a case where the court, on an appraisal of records found that the plaintiff was not ready and willing to perform his part of the obligations under the agreement and it is on account of the said reason that the agreement did not fructify. As rightly contended by the learned counsel for the defendants, the court below, in the R.F.A Nos.62 and 138 of 2014 -: 24 :- circumstances, was not justified in directing the defendants to pay costs of the suit for specific performance to the plaintiff. That part of the decree impugned in the appeal is therefore liable to be modified. In the result, R.F.A.No.62 of 2014 is dismissed and R.F.A.No.138 of 2014 is allowed in part vacating the decree for costs of the suit granted in favour of the plaintiff. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 08.02.2022