Mukkani Fathima and Parakkal Abdul Kader v. Kundu Valappil Fathima

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY ,THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA, 1940** ## **RFA.No. 115 of 2010** **AGAINST THE JUDGMENT IN OS 318/2008 of ADL.SUB COURT, THALASSERY DATED 21-10-2009** ## **APPELLANTS/DEFENDANTS 1 & 2:** **1 MUKKANI FATHIMA, D/O. MAMMU AGED 40 YEARS HOUSEWIFE** **2 PARAKKAL ABDUL KADER S/O.MUHAMMED, AGED 51 YEARS,KANDATHIL HOUSE, KOLOLAM, EDAYANNUR P.O,VIA.MATTANNUR, KANNUR DIST.** **THE ADDRESS OF THE FIRST APPELLANT IS CORRECTED AS MRS. MUKKANI FATHIMA D/O.MAMMU,HOUSE WIFE,KANDATHIL HOUSE,KOLOLAM,EDAYANNUR P.O.,MATTANNUR,KANNUR DISTRICT. AS PER ORDER DATED 28.1.2011 VIDE MEMO DT. 19.1.2011** **BY ADVS. SRI.V.RAMKUMAR NAMBIAR SRI.C.X.ANTONY BENEDICT RESPONDENT/PLAINTIFF KUNDU VALAPPIL FATHIMA D/O.MOIDU,HOUSE WIFE,'SUHARAS' KUNHIPALLI,PUZHATHI AMSOM, DESOM,THROUGH P.A HOLDRER P.M.MOIDU,S/O.CHEKU,AGED 71 YEARS,BUSINESS,'MUKKANI HOUSE'KANHIRODE,KANNUR.** **BY ADV. SRI.C.K.SREEJITH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2018, THE COURT ON 14.12.2018 DELIVERED THE FOLLOWING:** RFA 115/2010 2 ## **JUDGMENT** This appeal arises out of a judgment dated 21-10-2009 in O.S.No. 318/2008 on the file of the Subordinate Judge, Thalassery whereby a decree of specific performance of agreement for sale of the plaint A and B schedule properties was granted in favour of the plaintiff/respondent. 2. The facts of the case in a nutshell are as follows: The plaint A schedule property belongs to 1[st] defendant/1[st] appellant by virtue of document No.2392/2004 of SRO, Ancharakandy. The plaint B schedule property belongs to the 2[nd] defendant/2[nd] appellant who is the husband of the 1[st] appellant by virtue of document No.1314/2005 of SRO, Ancharakandy. The properties are lying contiguously as one plot. The appellants and the respondent/plaintiff entered into an agreement for sale of the properties on 11.6.2007 for a sale consideration of Rs.8000/- per cent. An advance amount of Rs.75,000/- was paid on the very same day. The time fixed for execution of the sale deed was six months. A power of attorney was also executed by RFA 115/2010 3 the 2[nd] appellant/2[nd] defendant in favour of the 1[st] appellant for execution of the sale deed. Apart from the advance amount the respondent paid an amount of Rs.8000 on 15.9.2007 and Rs.10000/- on 18.12.2007 and thus in total an amount of Rs.93,000/- was paid towards the sale consideration. The time for execution of the sale deed was extended and it expired on 11.1.2008. But, the sale deed was not executed even after the extension of time. Hence, the suit was filed for specific performance. The respondent further alleged that he was always ready and willing to perform his part of the contract. The defendants/appellants contested the suit admitting the execution of the agreement but denying the receipt of Rs.8,000/- on 15.09.2007 and Rs.10,000/- on 18.12.2007 and also that the respondent was not ready and willing to perform his part of contract. 3. Before the court below, the power of attorney holder of the respondent was examined as PW1 and the 1[st] appellant as DW1. Exts.A1 to A3 were marked on the side of the respondent. The court below after evaluation of the entire evidence decreed the suit directing the appellants to execute the sale deed after RFA 115/2010 4 measurement of the properties and register the same in favour of the respondent. Aggrieved by the said judgment and decree the appellants have filed this appeal. 4. Heard Sri.V.Ramkumar Nambiar, the learned counsel appearing for the appellants and Sri. C.K. Sreejith, the learned counsel for the respondent/plaintiff. 5. It is argued by the learned counsel for the respondent that his readiness and willingness to get the sale deed in his favour had been accepted by the court below and hence, a decree for specific performance was granted as prayed for. 6. In order to appreciate the issue involved in the appeal, few more facts need to be mentioned herein as below: The plaint schedule property is having a total extent of 35 cents (A Schedule 14 cents and B Schedule 21 cents). The execution of the agreement between the appellants and the respondent dated 11.6.2007 is not in dispute. The receipt of an advance amount of Rs.75,000/- at the time of execution the sale agreement is also not in dispute. The respondent's case was that apart from the advance amount, on 15.9.2007 an amount of Rs.8000/- was paid and on 18.12.2007 another amount of Rs.10,000/- was paid. So RFA 115/2010 5 in total Rs.93,000/- had been paid by the respondent to the appellants. The appellants though admitted the advance payment of Rs.75,000/- had contended that apart from that only an amount of Rs.5000/ was paid and so in total Rs.80,000/- was received, but the execution of sale deed was not materialised due to the laches on the side of the respondent. 7. In a suit for specific performance in order to get a decree it is well settled that the plaintiff has to prove his readiness and willingness to perform his part of contract and the readiness and willingness have to be shown throughout. Here, it is specifically contended by the respondent that the time for execution of the sale deed was not essence of the contract as the time was extended for a further period. As per Ext.A1 agreement the sale deed had to be executed within a period of six months from 11.6.2007. So the period ended by 11.12.2007 and it was extended upto 11.1.2008. The appellants contended that it was extended till 11.1.2008, as the respondent was not having sufficient funds to pay off the balance sale consideration and that was evident by the payment of 5000/- after execution of the agreement. It is also pointed out by the appellants that the RFA 115/2010 6 endorsement on the reverse side of the agreement regarding payment of Rs.8000/- on 15.1.2005 and Rs.10000/- on 18.10.2007 had been signed by none of the parties, and that itself would show that the payment was only Rs.5000/- and not Rs.18,000/-. 8. Therefore, the appellants' case was that apart from Rs.75,000/-, Rs.5000/-alone was received from the respondent on 20.6.2007. But the alleged date of receipt of Rs.5000/- on 20.6.2007 was not specifically mentioned in the written statement filed by the appellants though it was contended that the total amount received was Rs 80,000/-. DW1 on oath stated in the witness box about the date without a specific plea regarding the date in the written statement. It is pertinent to note that though the signature of the appellants was not affixed in the endorsement regarding the receipt of Rs.8000/- on 15.9.2007 and Rs.10000/- on 18.2.2007 it could be presumed that there was such a transaction between the parties for the main reason that the receipt of Rs.5000/- after the advance payment was admitted by the appellants and no convincing evidence was adduced by the appellants to the effect that the RFA 115/2010 7 payment was only Rs.5000/-. Therefore, the case of the respondent that in total, an amount of Rs.18,000/- was paid apart from the advance amount of Rs.75,000/- appears to be more probable and correct. Hence I conclude that the total amount paid by the respondent to the appellants was Rs.93000/-. 9. As referred above, the time fixed for execution of the sale deed was extended for a further period of one month and hence, the extended period for execution expired on 11.1.2008. In order to contend that the respondent was always ready and willing to get the document executed in his favour he would submit that there was definite recital in the agreement to measure out the property to fix the consideration for the total extent at the rate of Rs.8000/- per cent, the appellants have no case that they have measured out the property to convince them with respect to the extent of property which is admittedly in their possession, to get the sale deed executed. So also, it is clear that the appellants have not entrusted the copy of their title deeds for perusal to the respondent to draft the assignment deed. As mentioned earlier the time for execution of the document was RFA 115/2010 8 extended from 11.1.2007 to 11.1.2008. The respondent had a case that an amount Rs.10,000/- was paid to the appellants on 18.12.2007 though receipt of the same was not admitted by them. 10. The intending purchaser in a suit for specific performance has to prove readiness and willingness to perform his part right from the date of execution till date of decree and that has to be gathered from the prior and subsequent to the filing of the suit and the other attending circumstances. Before amendment Section 16(c) of the Specific Relief Act ('the Act' for short) envisages that a specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or always has been ready and willing to perform the essential terms of the contract which are to be performed by him other than the terms of performance of which has been prevented or waived by the defendant. “Section 16 deals with Personal bars to relief.Specific performance of a contract cannot be enforced in favour of a person- (a) *** (b) *** RFA 115/2010 9 (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation: For the purpose of clause(c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. (ii)the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 11. A Division Bench of this Court in _**Vinodan vs. Sunilkumar and others (ILR 2015 2 KER 605)**_ observed that the distinction between 'readiness' and 'willingness' is that, the former has a reference to financial capacity and the latter on the conduct of the plaintiff wanting specific performance. If the plaintiff did not make any specific averment to that effect in the plaint, it would amount to non- compliance of the mandatory requirement of clause (c) of Section 16 of the Act. In the absence of such averments the suit is not maintainable 12. Therefore, it is not necessary to tender money or RFA 115/2010 10 deposit the balance amount to be paid but there should be evidence to show that the purchaser is capable of paying the balance amount of sale consideration to perform his part of the contract. Here as referred above, the actual time for execution of agreement was 11.12.2007. But an amount of Rs.10,000/- was paid on 18.12.2007. That itself shows that the respondent was not having sufficient funds with him to pay the balance sale consideration on or before 11.12.2007. So the question to be looked into is whether he could establish whether he had the money with him at the relevant point of time to perform his part of contract. In fact there was no specific averment to that effect and no evidence was let in to substantiate the fact that he was having funds with him or had the capacity to raise funds to pay the balance sale consideration. 13. Of course, the recital in Ext.A1 would reveal that the sale consideration has to be paid to the extent of land found on measurement. The value fixed was Rs.8000/ per cent. As per the agreement the total extent is shown as 35 cents. On measurement there is possibility to have variation to the extent. But even for 35 cents at the rate of Rs.8000/- per cent the total RFA 115/2010 11 consideration to be paid was Rs.2,80,000/-. The respondent's case that in total Rs.18,000/- had been paid by him apart from the advance amount of Rs.75,000/-and therefore, the balance to be paid is Rs.1,87,000/-. No reliable evidence was adduced by him to prove that he had sufficient funds or he was capable of paying the balance amount at the relevant time. So the contention that he was ready and willing to perform his part of contract and it was not materialized due to the default of the appellants cannot be accepted as such. It is well settled that an agreement in a suit for specific performance must be read in its entirety so as to ascertain the nature of transaction. The intention of the parties have also to be gathered from the conduct of the parties and other attending circumstances. If the respondent was having sufficient funds with him, there was absolutely no necessity to pay an amount of Rs.10,000/- alone on 18.12.2007. So considering the entire facts and circumstance involved in this case, it is not possible to agree with the finding of the learned Sub Judge that the respondent was ready and willing to perform his part of contract and get the document executed in his favour and only because of the default on the side of the RFA 115/2010 12 appellants the document was not executed. 14. In a suit for specific performance of contract as per Section 20 of the Act the relief to be granted is an equitable remedy and it is purely discretionary. It is well settled that the discretion of the court cannot be exercised in an arbitrary manner but should be sound and reasonable, guided by judicial principles of law. Even if the court is found that the purchaser is ready and willing to perform his part of contract or he is capable of paying the balance sale consideration, the court is not bound to grant specific performance in favour of the party seeking enforcement of the contract. The entire facts and circumstances involved in the case have to be meticulously considered before granting a decree for specific performance. The appellants have a case that they have purchased the property by availing huge loans from the bank and since the respondent failed to pay the balance sale consideration they were forced to pay huge amount as interest to the bank. It is also contended that they are ready and willing to pay back the advance amount adjusting the loss if any sustained to him. It has come out in evidence the respondent has approached the Munsiff Court, Kannur with a suit for RFA 115/2010 13 injunction and obtained an order of interim injunction against alienation and after appearance of the appellants the suit was withdrawn and then filed the suit for specific performance. Here considering the entire aspects involved in my view, the respondent is not entitled to get a decree for specific performance of contract and the said judgment and decree are liable to be set aside; but the amount of 93,000/- has to be necessarily paid back to the respondent with reasonable interest . 15. For the reasons aforementioned, I find that the respondent is entitled to get back the total amount of Rs.93,000 paid by him with interest at the rate of 12% from the date of agreement of sale (11.6.2007) till the date of decree (21.10.2009) and thereafter at the rate of 6% per annum till the date of releasing the payment to the respondent /plaintiff. The appellants are also liable to pay Rs.10,000/- as compensation for the loss caused to the respondent with interest at the rate of 6% per annum from today till the date of payment. The impugned judgment and decree passed by the trial court is hereby set aside. RFA 115/2010 14 16. The amount of Rs.93000/- along with the interest at the above rate shall be paid by the appellants/defendants by way of demand draft in favour of the respondent within a period of three months from the date of receipt of a copy of this judgment. So also the amount of Rs.10,000/- shall be paid at the earliest with interest as fixed above. The appeal is accordingly allowed. No costs smm **SHIRCY.V** RFA 115/2010 15