# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT**
**THE HONOURABLE MR. JUSTICE SATHISH NINAN**
**&**
**THE HONOURABLE MR. JUSTICE JOHNSON JOHN**
**MONDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946**
**RFA NO. 168 OF 2009**
**AGAINST THE JUDGMENT DATED 07.02.2009 IN OS NO.23 OF 2006 OF**
**SUB COURT, TIRUR**
**-----**
## **APPELLANT/PLAINTIFF:**
**PATHUMMAKUTTY, W/O MUHAMMEDKUTTY, D/O.CHITTAKATH PEEDIYAKKAL PAREETHU, TIRUR TALUK, TIRUR AMSOM, DESOM.**
**BY ADVS. SRI.C.M.MOHAMMED IQUABAL SRI.VINOD RAVINDRANATH**
## **RESPONDENT/DEFENDANT:**
## **KUNHAHAMMEDKUTTY**
**S/O.MECHERI ABOOBACKER, TIRUR TALUK, TIRUR AMSOM, DESOM, P.O.POOKKAYIL BAZAR.**
**BY ADV SRI.T.H.ABDUL AZEEZ**
**THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 06.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **SATHISH NINAN & JOHNSON JOHN, JJ.**
**= = = = = = = = = = = = = = = = = = R.F.A. No.168 of 2009 = = = = = = = = = = = = = = = = = = Dated this the 6[th ] day of August, 2024**
**J U D G M E N T**
## _**Sathish Ninan, J.**_
The suit for specific performance of an agreement for sale was decreed by the trial court for the alternate relief of return of advance sale consideration. Dissatisfied with the decree, the plaintiff is in appeal.
2. Ext.A1 is the agreement dated 02.06.2005, which is sought to be specifically enforced. The schedule property has an extent of 23.85 cents. As per Ext.A1, the sale consideration is ₹ 1,81,500/- per cent. The period fixed for performance was six months from the date of agreement. On the date of agreement an amount of ₹ 10 lakhs was paid towards advance sale consideration. Thereafter, on 23.08.2005 a further amount of ₹ 5 lakhs was paid towards advance sale consideration, thus making
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the total advance consideration at ₹ 15 lakhs. The time fixed for performance expired on 02.12.2005. Alleging failure on the part of the defendant to perform the agreement, the suit was filed.
3. The defendant though admitted Ext.A1 agreement,
contended that the plaintiff was not ready and willing to perform the agreement. It was also contended that time was the essence of the contract.
4. The trial court negatived the defence plea that time was the essence of the contract. The court found that the conduct of the plaintiff suggests that he was not ready and willing to perform the agreement. Discretion was exercised in terms of Section 20 of the Specific Relief Act declining the relief of specific performance, and granted the decree for return of the advance sale consideration.
5. We have heard Sri.T.Krishnanunni the learned
counsel for the appellant-plaintiff and Sri.T.H.Abdul Azeez on behalf of the respondent-defendant.
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## 6. The points that arises for determination are:-
_(i) Is the finding of the trial court with regard to the readiness and willingness of the plaintiff, based on materials ?_
_(ii) Does the exercise of discretion by the trial court under Section 20 of the Specific Relief Act in declining the relief for specific performance warrant any interference ?_
## 7. Sri.T.Krishnanunni, the learned Senior Counsel
for the appellant placed his arguments based on Sections 51 and 52 of the Contract Act. Ext.A1 agreement contains reciprocal promises. There was a subsisting liability over the property with the Tirur Urban Co-operative Bank. The defendant was required to clear the same. The duty of the plaintiff to perform the contract was to arise only when the defendant clears the liability. Therefore the plaintiff could not have been found fault with by the Court for not having expressed his willingness to perform the contract, it is argued. Learned Senior Counsel relied on the judgments of the Apex Court in _**Saradamani Kandappan and Ors. v. S.Rajalakshmi and Ors. AIR 2011 SC 3234, P.D. Souza v. Shondrilo Naidu AIR 2004**_
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_**SC 4472,**_ and of this Court in _**Faizal Eroth & Anr. v. Venkalath Raveendran & Anr. 2013(3) KLT 1041,**_ in support of the contention.
8. In _**Saradamani Kandappan's case (supra)**_ , the Apex Court, referring to Section 51 of the Contract Act held that, when a contract consists of reciprocal promises to be simultaneously performed, no promisor need to perform his promise unless the promisee is ready and willing to perform the reciprocal promise. Referring to Section 52 of the Contract Act it was observed that, where the order in which the reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; where the order is not expressly stipulated, they shall be performed in the order which the nature of the transaction requires. The same principle was laid down in the other judgments relied on by the learned senior counsel.
9. Referring to Ext.A1 agreement the learned Senior Counsel contended that the agreement contains two different streams for performance; on one hand the
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defendant is to clear the subsisting liability over the property and on the other hand payment of the balance consideration by the plaintiff. The plaintiff needs to perform only on the defendant clearing the liability, it is argued.
## 10. The relevant clause in Ext.A1 reads thus :-
“3. _m-¡n Xo-cv hn-e C-óv þ6þ2005 ap-Xð 6 (Bdv) am-k-¯n-\p-Ånð þ12þ2005\v 2þmw \-{¼-Imcn 1þmw \-{¼-Imc-\v XoÀ-¯v X-cp-hm\pw A-Xn-\p ap-¼mbn ]-«n-I-bn-se h-l-I-fn-tòð ta¸-Sn _m-¦n-te-¡v A-S-¨p-XoÀ-¡p-hm-\p-Å kw-Jy ap-gph³ 1þmw \-{¼-Im-c³ A-S-¨p-XoÀ-¯v, 2þmw \-{¼-Im-cn C-S-hm-Sp-XoÀ¡p-t¼mÄ 2þmw \-{¼-Im-cn-bp-sS Nn-e-hn-tòð 2þmw \-{¼-Im-cn-bp-sS t]-cn-sem, 2þmw \-{¼-Im-cn \nÀ-t±-in-¡p-óm-fp-sS t]cn-sem 1þmw \-{¼-Im-c³ Xo-cm-[m-cw c- Pn-kv-{Xm-¡n-¨p X-cp-hm-\pw h-l-IÄ I-bvh-iw X-cp-hm\pw \n-Ý-bn-¨n-cn¡póp.”
The clause stipulates that, within six months from the date of agreement the balance sale consideration is to be paid by the plaintiff to the defendant and prior to that the defendant is to clear off the liabilities with the Bank. Ext.B7 is the certificate issued from the Bank certifying that the loan was closed on 28.11.2005, ie. well within the period stipulated for performance
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in Ext.A1. Therefore, it is evident that the defendant had, well within the time stipulated in the agreement, cleared off the liability mentioned in Ext.A1 and had performed his part of the contract. It was the plaintiff who failed to express his readiness and willingness and seek for performance of the agreement. Hence the arguments based on Sections 51 and 52 of the Contract Act is of no avail.
11. Coming to the issue of readiness, willingness and the exercise of discretion under Section 20 of the Specific Relief Act, it is the plaintiff's case that, before the expiry of the period stipulated the plaintiff had arranged the balance sale consideration and had approached the defendant on various occasions. There were attempts through mediators to have the agreement performed. However, the defendant evaded performance under one guise or the other, it is contended. It is important to note that, though the plaintiff has raised such a contention, before the expiry of the period fixed
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in the agreement ie. before 02.12.2005, the plaintiff has not sent any communication to the defendant expressing the readiness and willingness to go ahead with the transaction and calling upon the defendant to perform the agreement. It was the defendant who, first in point of time, issued Ext.A2 notice dated 04.01.2006, ie. after the expiry of the period stipulated in Ext.A1, alleging failure on the part of the plaintiff to perform the agreement and cancelling the same. There is no material to show that, within the period stipulated in the agreement the plaintiff had expressed his readiness and willingness to the defendant to go ahead with the transaction.
12. Further, according to the plaintiff attempts
were made through mediators to take the transaction through. However, the name of such person is not disclosed nor is he examined. Having set up a case of mediation through a 3[rd] party, non-mentioning of his name and his non-examination, tells upon the bona fides
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of the plaintiff's contention.
13. As noticed by the trial court, though the plaintiff claimed that she possessed sufficient funds and means to pay the balance sale consideration, the materials produced does not help in proving the same. Exts.A6, A7(a) and A7(b) bank statements show that the plaintiff was in possession of only an amount of less than ₹ 7 lakhs. The balance consideration payable was approximately ₹ 27 lakhs. Though PW1 claimed that she could raise money by sale of Ext.A8 series share certificates, as noticed by the trial court, the shares are not of any listed companies and it could not be easily converted to money. Though it is not disputed that the plaintiff and her husband possessed various landed properties and buildings, as noticed by the trial court, there is no case that any arrangements were made to have the funds raised for performance of the agreement. While it is true that the plaintiff need not carry cash and prove her readiness and willingness, it
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is for her to prove that she was in possession of sufficient means to pay the balance sale consideration during the currency of the agreement. There is no case that the plaintiff had taken any steps to sell the shares and raise money.
14. Though for performance of Ext.A1 agreement the property was to be measured and the actual extent available was to be ascertained, there is no material to find that the plaintiff had taken any steps in the said regard. As PW1 the plaintiff claimed that he had arranged a village officer by name Hamsa for measurement of the property and when the defendant was approached he failed to cooperate. This was denied by the defendant. In spite of the same, the plaintiff did not choose to examine the said Hamsa. Therefore, there is no material to find that the plaintiff has taken any steps to measure out the property or had even called upon the defendant for the same. It is pertinent to note that the case set up by the plaintiff regarding the attempt to
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measure the property through the village official Hamsa did not find a place in Ext.A3 notice or in the plaint. Therefore, it can only be concluded that the said contention of the plaintiff is without substance.
15. The plaint schedule property is the residential property of the defendant. It is her case that she had entered into an agreement for sale to clear off her existing liabilities and to find another place for residence. As noticed by the trial court, the above was known to the plaintiff also. PW1 in cross examination
deposed, “{]-Xn-sb t\c-s¯ A-dn-bpw, A-bð-hm-kn-bmWv. Road \n-cp-h-i-hpw Xmakw. I-cm-dnð-s¸-« h-kv-Xp {]-Xn-bp-sS Ip-Sn-bn-cp-¸mWv. {]-Xn-¡v th-sd hoSpw Ø-e-hpaptïm (Q) A-dn-bnñ (A) I-Sw ho-«m\pw th-sd hoSpw Ø-ehpw hm-§m\-sñ C-S-]m-Sv
\-SóXv (Q) AsX (A)”. The defendant cleared off the liability with the Bank well within the period of performance stipulated under Ext.A1 agreement.
16. As noticed supra, the defendant had performed his part of the contract and it was the plaintiff who failed to perform and seek for performance in terms of
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the agreement.
17. The trial court has taken into consideration all the above aspects and has chosen to exercise its discretion to decline the relief of specific performance
and to grant the decree for return of the advance sale consideration. The advance sale consideration has been ordered to be returned with 9% interest which is fair and reasonable. So also, a charge has been created over the property for the decree amount.
The decree and judgment of the trial court warrants no interference.
The appeal fails and is dismissed.
Sd/- **SATHISH NINAN JUDGE**
Sd/- **JOHNSON JOHN JUDGE**
kns/-
//True Copy//
P.S. To Judge
