Parakkattukulangara Coir Industries Co-operative Society Ltd. v Lakshmi, Raveendran, Raman, Raju, Sujatha, Lalu, Vinod, Anitha, Omana and M.V. George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 17TH DAY OF MARCH 2014/26TH PHALGUNA, 1935** ## **CRP.No. 586 of 2010 ( )** **-----------------------AGAINST THE ORDER/JUDGMENT IN OS 664/1994 of ADDL.SUB COURT,KOTTAYAM DATED 20.07.2010.** ## **REVISION PETITIONER(S)/PETITIONER/PLAINTIFF:** **-----------------------------------------------------------------------** **PARAKKATTUKULANGARA COIR INDUSTRIES CO-OPERATIVE SOCIETY LTD.NO.675, REPRESENTED BY T.R.ROY, (PRESENTLY E.N.SALIMON), PRESIDENT PARAKKATTUKULANGARA COIR INDUSTRIES CO-OP. SOCIETY LTD.NO.675, T.V.PURAM, VAIKOM.** **BY ADVS.SRI.T.A.SHAJI SMT.MALU JOHN** ## **RESPONDENT(S)/CR.PETITIONERS/DEFENDANTS:** **-------------------------------------------------------------------------** ## **1. LAKSHMI, W/O. MADHAVAN,** - **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA, MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** ## **2. RAVEENDRAN,** - **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA, MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** ## **3. RAMANAN,** - **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA, MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** ## **4. RAJU,** - **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** ## **5. SUJATHA,** - **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** ## **6. LALU,** - **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** **7. VINOD, RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** ## **CRP.No. 586 of 2010 ( )** ## **8. ANITHA,** **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** ## **9. OMANA,** **RESIDING AT THALAMODITHARA HOUSE, CHEMMANATTUKARA MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** **10. M.V.GEORGE, S/O. VARKEY, RESIDING AT MAYAMPARAMBIL HOUSE, PALLIPRATHUSSERY MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK- 686 142 .** **R1,7 BY ADVS. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **LSN** ## **K.HARILAL,J** ## **---------------------------------------** ## **C.R.P. No.586 OF 2010** ## **---------------------------------------** Dated this the 17[th] day of March, 2014. ## **O R D E R** The Revision Petitioner herein is the plaintiff in OS No. 664/94 on the files of the Additional Sub Court, Kottayam as well as the petitioner in IA No. 2056/05 and IA No. 2057/05 filed therein. The above suit was one for specific performance of an agreement for sale and the suit was decreed as prayed for, directing the defendant to execute sale deed on the deposit of balance consideration of Rs.8000. But the plaintiff could not deposit balance consideration so far. This revision petition is directed against the common order passed on the above interlocutory applications. IA No. 2056/05 was filed under Section 28(3) of Specific Reliefs Act and IA No. 2057/05 was filed for extension of time, if the court finds that there is a delay in depositing the balance sale consideration. In IA No. 2056/2005, it is stated that, the Society was suffering from financial crisis. So the Society could not deposit the amount so far. In the meantime, the defendants never demanded the said balance consideration of Rs.8,000/- and having not expressed their willingness to execute the sale deed as per the Cr.R.P. No.586 OF 2010 2 decree. The total amount of consideration was Rs.74,000/and out of that Rs.65,000/- was paid at the time of execution of the agreement for sale itself and only an amount of Rs.8,000/- was remaining to be paid towards the balance sale consideration. The Society has been in exclusive possession and enjoyment of the properties. As per the operative portion of the decree, a specific period was not stipulated to get the sale deed executed. But, with abundant caution the plaintiff has filed another petition for extension of time, if the court finds that there is a delay in getting the sale deed executed. 2. The respondents 1 and 4 to 9 filed objection to both petitions and others were set ex-party. They contended that the plaintiff was not entitled to get the sale deed executed, as sanction was not obtained from the Joint Registrar of Cooperative Societies to execute the sale deed and there was no laches on the part of the defendants, in case, the Society was ready to pay the balance sale consideration within a reasonable time. 3. After considering the rival contentions, the court below dismissed both petitions by the impugned order on the finding that there was no explanation for the delay of merely Cr.R.P. No.586 OF 2010 3 seven years and therefore the plaintiff is not entitled to get the sale deed executed, after paying the balance sale consideration of Rs.8,000/-. The legality and propriety of the said common order is under challenge in this revision petition. 4. The counsel for the revision petitioner advanced arguments challenging the findings in the impugned common order. According to the learned counsel for the petitioner, no time limit was prescribed for getting the decree executed. Out of the total consideration of Rs.74,000/-, Rs.66,000/- was paid at the time of execution of the agreement for sale and the remaining amount due to the defendant was only Rs.8,000/-. From the date of execution of the agreement for sale, the plaintiff was in possession and enjoyment of the property. There was no negligence or laches from the plaintiff in causing the delay and it was so happened due to financial crisis of the Society. The learned counsel for the petitioner in support of his arguments was cited in **Ouseph v. Devassy, 2001 Kerala 104 (2001(1) KLJ 59)** wherein, this Court condoned delay of ten years in similar set of facts. 5. Per contra, the learned counsel for the respondent submits that the plaintiff Society has not obtained the sanction Cr.R.P. No.586 OF 2010 4 of the Registrar of Co-operative Society for purchasing the property. The plaintiff Society was not properly represented as Secretary alone is competent to represent the Society as per the bye-law of the Society. There is an inordinate delay of seven years in getting the decree executed through process of the court. Accordingly to the learned counsel, the plaintiff Society is a defunct Society, having no activities at all. 6. In view of the rival submissions advanced at the Bar question to be considered is whether the court below has failed to exercise jurisdiction vested in it or has acted in the exercise of jurisdiction illegally or with material irregularly. Going by the decree, it could be seen that the decree was passed on 09.11.0998 and the present application under Section 28(3) of the Specific Relief Act had been filed on 30.08.2005. According to the plaintiff Society, earlier, the Society was in acute financial crisis, due to which, they could not raise the balance sale consideration. Now, the balance sale consideration has been arranged and the plaintiff is ready and willing to pay the balance amount. It is seen that substantial part of the sale consideration had already been paid by the vendee as early as on the date of agreement. Out Cr.R.P. No.586 OF 2010 5 of Rs. 74,000/- a lesser amount of Rs.8,000/-was remained to be paid and that amount was also deposited before the Court along with the application on 30.08.2005. But, there is a delay of seven years. The fact that the plaintiff had already paid a substantial amount of consideration at the time of execution of the agreement for sale assumes much significance. 7. Going by the decree, it could be seen that no time was specifically stipulated for getting the decree executed. The direction was to the defendant to receive the balance sale consideration and to execute the sale deed within three months. It cannot be interpreted to mean that a specific time was prescribed for getting the sale deed executed. It is also pertinent to note that the despite the long lapse of seven years, the defendant has not filed a petition to get the agreement executed. Another fact to be taken note of is that the plaintiff Society is in possession and enjoyment of the property from the date of agreement for sale. I am of the opinion that, all the points stated above are in favour of the plaintiff. The only question is to be considered is whether the lapse of seven years is fatal? The learned counsel for the Revision Petitioner cited **Ouseph v. Devassy, 2001 Kerala** Cr.R.P. No.586 OF 2010 6 **104 (2001(1) KLJ 59)** and drew my attention to paragraph 5 onwards. In that decision, this Court has relied on AIR 1972 SC 1826, and held that: “for the purpose of Sec.28 the contract between the parties does not get extinguished by the passing of the decree; it subsists even thereafter and if a contract does not specify the time for performance, the law will imply that the parties intended that the obligation under the contract should be performed within a reasonable time. Even extending the said finding with regard to the deposit for the period after the decree, where decree is silent with regard to the relevant date, the reasonableness of the delay has to be considered based on the surrounding circumstances.” I have already pointed out that the surrounding circumstances are in favour of the plaintiff. 8. The learned counsel for the respondent submits that the prior sanction of the Registrar has not been obtained so far for purchasing the property. I am of the opinion that even if it is true the said submission is of no consequences at all as far as the vender who is liable to execute the sale deed is concerned. It is also submitted that the Society was not properly represented, as the Secretary alone was competent to represent the Society. In the instant case, the Society is represented by the President. I am of the opinion that at this Cr.R.P. No.586 OF 2010 7 stage the Court cannot go behind the decree or beyond the decree. It is a matter which could have been raised and disputed at the time of trial. As regard the submission that the Society is a defunct Society, I am unable to accept the said submission, in view of the counter statement, which does not contain such a contention. On a total consideration of the entire circumstances, in view of the decision of the Apex Court referred above, I am of the opinion that the trial court failed to exercise jurisdiction vested in it and the finding that the plaintiff is not entitled to get the sale deed executed, on the deposit of balance consideration, is illegal and unsustainable under law. Consequently, I set aside the impugned common order under challenge and both applications will stand allowed. The court below is directed to proceeded further, accordingly. In the result, this revision petition is allowed. ## Sd/- **K.HARILAL, JUDGE** lsn