Oruvangara Mammmu v. K. Deepa

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933 AS.No. 675 of 1998 (C) -------------------------OS.454/1994 of I ADDL.SUB COURT, KOZHIKODE .......... APPELLANT/PLAINTIFF: ORUVANGARA MAMMU, S/O AHAMMED KOYA, VELLIPARAMBA, KUTTIKATTUR, KOZHIKODE. BY ADVS.SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANA KANNAN RESPONDENT/RESPONDENT: K.DEEPA, D/O LATE VALIAPARAMBIL RAMACHANDRAN, P.O. KALLIACHI, VARAKARA TALUK, KOYILANDY TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema & A.M.Shaffique, JJ. -------------------------------- A.S.No.675 of 1998 -------------------------------Dated this the 7[th] day of February, 2012 ## **JUDGMENT** ## Hema J. A suit was filed by appellant before Sub Court for specific performance of a contract relating to plaint schedule property. As an alternative relief, he prayed for directing respondent/ defendant to pay ` 25,000/- with 18% interest per annum, which was paid as advance. After trial, court below granted a decree to realise the amount with interest, but refused to grant a decree for specific performance in view of alternative plea. Aggrieved by refusal to grant decree for specific performance, this appeal is filed by appellant/plaintiff. 2. The suit was filed, inter alia, contending that appellant entered into an agreement for sale of plaint schedule property with respondent/defendant and price was fixed as ` 6,600/- per cent and he also paid ` 25,000/- as advance towards sale AS 675/98 2 consideration. Four months' time was fixed for execution of sale deed and agreement was executed on 18.09.1993. As per the stipulation in the contract, defendant was bound to handover the encumbrance certificate, documents of title and tax receipts. He was also bound to measure the property and convince appellant/ plaintiff about the actual extent of property. Respondent/ defendant evaded execution of the document on some pretext or other. 3. A lawyer notice was issued on 27.04.1994 requesting respondent to execute the document, after having over the documents and also measuring out the property. A reply notice was sent showing false details and hence a notice was again sent on 17.05.1994 stating that appellant is ready and willing to perform his part of contract and requesting respondent to comply with the conditions in agreement and execute the document. In spite of notice, document was not executed due to failure on the part of appellant and hence the suit was filed. 4. Respondent/defendant filed a written statement admitting execution of Ext.A1 agreement and he also admitted AS 675/98 3 receipt of ` 25,000/- from appellant. Respondent also convinced appellant about the title, possession and encumbrance. Property was also measured and actual extent was fixed at 43.84 cents. Thereafter, appellant prepared a sale deed on a stamp paper purchased on 27.01.1994 and as requested by him, respondent appeared before Sub Registrar Office for execution and registration of the document in favour of appellant's nominee Sri.Pari. Respondent went to Sub Registrar Office on 28.01.1994, but he found that sale deed was prepared by appellant showing the sale consideration, which is lesser than the agreed amount. Only ` 65,000/- was shown as total consideration. 5. The correct extent of property was also not shown in document. Instead of 43.84 cents, extent shown was only 42.35 cents. The appellant was not prepared to show the correct agreed consideration and correct extent of property in the document and therefore, sale deed could not be executed. The appellant committed gross default in performing his obligation under agreement. The document could not be executed or registered because of appellant's deliberate refusal to show the correct AS 675/98 4 details in the document relating to sale consideration and extent of property. The appellant is not entitled to the relief since transaction could not be finalised due to latches and default on the part of appellant. The appellant also wilfully and deliberately suppressed the facts relating to preparation of sale deed, etc. The respondent is entitled to appropriate ` 25,000/- towards loss sustained. 6. After framing the issues, evidence was adduced. PW1 was examined and Exts.A1 to A4 were marked on the side of appellant. DW1 was examined on the side of defendant. Ext.X1 was also marked. After analysing evidence, the court below found that appellant is not entitled to a decree for specific performance as prayed for, but the alternative prayer for return of ` 25,000/with 18% interest was allowed. The court below also relied upon a decision reported in **Kansi Ram v. Om Prakash Jawal** (1996 (4) SCALE 194) to refuse the prayer for specific performance, since alternative decree was granted as prayed for. The appellant is aggrieved by refusal to grant a decree for specific performance and hence this appeal. AS 675/98 5 ## 7. Heard both sides. Perused records. The points for determination arising in this appeal are: 1. Whether respondent failed to handover the documents of title, encumbrance certificate and tax receipts, as alleged? 2. Whether respondent failed to measure out the property and fix the correct extent of plaint schedule property as stipulated in Ext.X1 agreement? 3. Whether appellant committed any breach of contract, as alleged by respondent in written agreement? 4. Whether appellant is entitled for a decree for specific performance as prayed for? 5. Whether refusal to grant decree for specific performance is sustainable? ## Point nos.1 to 5: 8. According to learned counsel for appellant, appellant proved that respondent committed breach of contract-Ext.A1 by refusing to measure out the property and convince appellant about the actual extent of land and he also failed to handover various documents, such as, documents of title, tax receipts and encumbrance certificate, as stipulated in Ext.A1 agreement. But, AS 675/98 6 court below refused to grant the decree, even though it was found that appellant is entitled to a decree only on the ground that he has claimed an alternative relief for payment of ` 25,000/- with 18% interest. Such refusal is not sustainable either on facts or on law, it is submitted. 9. Learned counsel for respondent argued that appellant filed the suit making false plea and he also made suppressions regarding vital aspects concerning transaction, which is revealed from Ext.X1 file produced from Taluk Office. There is evidence to show that sale deed was prepared and since sale did not take place, value of stamp paper was refunded. It is only after being satisfied about the actual extent of property and document relating to the property that sale deed was prepared on a stamp paper purchased on 27.01.1994. 10. It is also submitted that as per the stipulation in Exhibit A1, sale can be effected in favour of appellant's nominee and Sri.Pari had appeared before Registrar Office as the nominee. The respondent had also gone there for execution of sale deed. But registration did not take place because extent of property and full AS 675/98 7 consideration were not shown in the sale deed, it is argued. 11. On hearing both sides and going through evidence and records, it can be seen that relief sought for is to grant a decree for specific performance by directing respondent to produce documents relating to tile of plaint schedule property, encumbrance certificate and tax receipts and also to measure out the property and also to satisfy appellant about the actual extent of property. The contention raised by respondent is that measurement was taken and the actual extent was found to be 43.84 cents, even though the extent shown in Ext.A1 is 44 cents. 12. It is also contented that all the relevant documents were handed over and that is why a sale deed was prepared on a stamp paper. Ext.X1 is produced to prove this fact. Evidence of PW1, DW1 and also Ext.A1 will show that a sale deed was prepared and on the request of one Sri.Pari, refund of the stamp paper was also given to him. The respondent has a case that sale deed was prepared on a stamp paper purchased on 27.01.1994 and respondent had gone to Registrar Office for execution and registration of document on 28.01.1994. AS 675/98 8 13. In Ext.X1, it is mentioned that stamp paper is dated 27.01.1994. It is also brought out in evidence that in the application filed by Sri.Pari for refund, a lawyer attested his signature. The appellant's lawyer and the lawyer who signed in the application are one and the same. This will indicate that it was with the knowledge of appellant that transaction has taken place, it is contended. 14. The respondent issued a reply notice stating all these facts and the reply is marked as Ext.A3. It is specifically stated in the notice that respondent had complied with all requirements and presented herself before Sub Registrar to execute the sale deed in favour of appellant's nominee Sri.Pari, but it was noted that the extent shown in the document was less than the property offered for sale and also that the amount shown as consideration was not correct amount. Sale did not take place because of breach of contract on the side of appellant in complying with the stipulation in Ext.A1 and this fact is stated in Ext.A3. 15. However, in spite of the specific contention taken up regarding the transaction which took place on 28.01.1994 at the AS 675/98 9 Registrar Office, the appellant, in paragraph 4 of the plaint, flatly denied the averments relating to such transaction. It is averred in plaint that allegation that a nominee was entrusted, etc. is absolutely false. But, on going through evidence of PW1 and admissions made by him coupled with Ext.X1, it can be clearly seen that a transaction took place on 27.01.1994 and a document was also prepared on the said date on a stamp paper purchased on that day and refund was also obtained by appellant's nominee Sri.Pari who applied for refund through appellant's counsel. 16. It is admitted by PW1 in cross-examination that a sale deed was prepared in the name of Sri.Pari and that Registrar returned the document when parties went for registration. Of course, later, he denied this fact in cross-examination. However, from evidence adduced in this case, it is clear that a document was prepared in the name of appellant's nominee and parties appeared before Registrar Office for execution of document, but sale did not take place. 17. If the above fact is accepted, it is only reasonable to infer that appellant would have been satisfied of the actual extent AS 675/98 10 of property and also title regarding property or else, nothing would have happened at the Registrar's office. It is also probable that all the documents would have been handed over and respondent would have also complied with his part of the contract and gone to Registrar's Office, ready for execution of document. On analysing the evidence on the scale of probability, it has to be inferred that respondent performed his part of contract to the satisfaction of appellant and that must be the reason why a sale deed was prepared in the name of appellant's nominee after spending money for purchase of stamp paper as early as on 27.01.1994. Therefore, it cannot be held that respondent has not performed his part of contract. 18. The Court below has not considered the relevant aspects in the impugned judgment. The court below merely referred to certain facts and some of the contentions raised in the judgment, but did not consider whether contentions raised by appellant or respondent can be accepted or not. Of course, a bare finding is entered into that appellant is entitled to a decree for specific performance, but no reasons are assigned fro arriving at such AS 675/98 11 conclusion, on the basis of evidence, pleadings and other circumstances which emerge from records. 19. It is also to be noted that respondent has a case that appellant/plaintiff has not performed his part of contract. There is a specific averment in written statement that there is breach of contract on the side of respondent in not offering money which he is bound to offer for the actual extent of property which was fixed, after measurement of property. It is also the case of respondent that sale consideration offered for the property is lesser than the money he is bound to pay as per Ext.A1. 20. On going through contentions raised on the pleadings in plaint and evidence, it is clear that appellant/plaintiff is disputing the actual extent of property and actual amount of sale consideration which respondent is entitled to get. Therefore, it is only reasonable to hold that appellant must not have been prepared to perform his part of contract by paying the sale consideration due pursuant to Ext.A1 agreement for the actual extent of property. Thus, it is only reasonable to hold that there is breach of the terms of Ext.A1 by appellant. AS 675/98 12 21. As per Section 16(b) of Specific Relief Act, specific performance of a contract cannot be enforced in favour of a person who violates any essential term of the contract that on his part remains to be performed. It is clear from evidence that there is violation of essential term of contract by appellant and therefore, by virtue of Section 16(b) of Specific Relief Act, Ext. A1 cannot be enforced in favour of appellant. This fact was also not considered by the court below. 22. Though a specific contention is taken that appellant violated essential terms of contract and that he is not entitled to get a decree for specific performance of contract, court below has not considered this question at least to decide whether there is any bar to grant a decree for specific performance. Without considering the vital contentions, court below held that appellant is not entitled for a decree for specific performance. In the light of breach of contract by appellant, he is not entitled to a decree for specific performance, in view of bar under Section 16(b) of Specific Relief Act. AS 675/98 13 23. On going through impugned judgment, it is clear that court below has not focused its attention to relevant aspects which are to be decided in a suit for specific performance of contract. In a suit for specific performance of contract, court has to first find out on the basis of the pleadings, evidence and in the light of the contentions raised by both parties whether there is any breach of contract, as alleged by plaintiff. If the court finds that there is no such breach, there will be no cause of action for appellant/plaintiff to claim the relief and the suit is to be dismissed. 24. Section 16 lays down that specific performance cannot be enforced under the circumstances stated in clauses (a) to (c) of Section 16. If, from the pleadings and evidence, the court is satisfied of the requirements of any of the conditions in clauses (a) to (c) in Section 16, specific performance cannot be enforced. Therefore, it is the bounden duty of the court to find out whether relief can be granted or not, in the light of Section 16 of Specific Relief Act. This was also not done. AS 675/98 14 25. In this case, appellant has not proved any breach on the side of respondent. There is also evidence to show that appellant committed breach of Ext.A1 agreement. Hence, he is not entitled to a decree for specific performance. Therefore, we find that appellant/plaintiff is not entitled to get the main relief, as prayed for in the suit. 26. However, the decree granted in favour of respondent for return of ` 25,000/- with 18% interest is not challenged. Learned counsel for respondent submitted that amount is already deposited also. Hence, this appeal has only to be dismissed. Points are answered accordingly. This appeal is dismissed. Parties shall bear their respective costs. (A.M.Shaffique, Judge) tkv AS 675/98 15 K.Hema & A.M.Shaffique,JJ. -----------------------------A.S.No.675 of 1998 ------------------------------ **JUDGMENT** 7[th] February, 2012