Prasanna Kumar v. Mallika Devi

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 ``` ``` AS NO. 142 OF 1997 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 29.06.1996 IN OS 529/1993 OF PRINCIPAL SUB COURT, KOTTAYAM ``` ## **`APPELLANT/DEFENDANT:`** ``` PRASANNA KUMAR, S/O.GOVIND WARRIER, RESIDING AT THAZHATHU VARRIATHU, VAZHAPPALLY. ``` ``` BY ADVS. SRI.S.SREEKUMAR SRI.P. MARTIN JOSE ``` ## **`RESPONDENT/PLAINTIFF:`** ``` MALLIKA DEVI, D/O.GOPINATHA PRABHU, KUNANTHILLATHU, KIZHAKKUM BHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE, CHANGANACHERRY TALUK. ``` ``` BY ADVS. SRI.JAGAN ABRAHAM M.GEORGE SRI.JAISON ANTONY ``` ``` THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` AS NO. 142 OF 1997 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Unfortunate incidents have happened in the instant case after the passing of a decree by the trial court, presumably on the reason that the trial court during the pendency of a suit for specific performance appointed a Receiver to take possession, that too, overlooking all settled legal principles and the various provisions contained in the Specific Relief Act. ``` ``` 2. Yet another mischief was also seen done by the trial court while decreeing a suit for specific performance, wherein directions were issued to the Receiver to hand over possession of the property taken from the defendant to the plaintiff and thereby defeated the right of appeal ``` ``` AS NO. 142 OF 1997 ``` ``` 3 ``` ``` available to the party and its legal consequences thereof. Without waiting for the exercise of appellate jurisdiction, possession of property was handed over to the plaintiff by giving direction to the Receiver, that too, before execution of the sale deed in execution of the decree. It is so unfortunate that in a suit for specific performance, a Receiver was appointed by the trial court. The possession was taken from the defendant. In the decree it was directed to give possession of the property to the plaintiff immediately without waiting for execution of a sale deed in furtherance ``` ``` of the decree passed and without permitting the parties to exhaust the appellate jurisdiction thereby overlooked all settled legal principles. It was ``` ``` AS NO. 142 OF 1997 ``` ``` 4 ``` ``` brought to the notice of this Court that the plaintiff who is illiterate had acted upon the possession given by the Receiver by constructing a building therein, subsequently. ``` ``` 3. It was submitted by the learned counsel for the appellant that, the decree for specific performance was granted without addressing to Section 20 of the Specific Relief Act. The legal position was settled by a Division Bench of this Court in Antony K.O. and another v. M.K.Krishnankutty Menoki and others ( 2017 (1) KHC 479 = 2017 (1) KLJ 357 : ILR 2017 (1) Ker 444)in the following lines: ``` - `“ The question at what time the` - `Court has to exercise its discretion is also well evident from a mere` ``` AS NO. 142 OF 1997 ``` ``` 5 ``` ``` reading of Section 20 of the Specific Relief Act, which would arise only after finding that it is lawful to grant the relief sought for in favour of the plaintiff. In all other provisions of law wherein discretion could be exercised stands for exercising discretion in a positive way for granting some relief to the parties and not for refusing any relief. But, the discretionary power incorporated and embodied under Section 20 stands on a different footing in which the Court has to exercise discretion not for granting the relief, but for refusing the same. It has got its own character and peculiarity, apart from other provisions contained in other laws for the time being in ``` ``` AS NO. 142 OF 1997 ``` ``` 6 ``` ``` force. So, the real impact of Section 20 should be and must be understood under the background of those aspects. It is a mandate upon the Court to address the question of exercise of discretion before granting or refusing a decree for specific performance and it has to be exercised only after finding that it is lawful to grant a relief of specific performance in favour of the plaintiff. A decree which was granted without addressing and without exercising the discretion under Section 20 of the said Act is bad in law. The Court is duty bound to address the question of exercise of discretion under Section 20 of the Specific Relief Act while granting or refusing to grant a ``` ``` AS NO. 142 OF 1997 ``` ``` 7 ``` ``` decree of specific performance. The said discretion has to be exercised only after finding that it is lawful to grant the relief prayed for in suit in favour of the plaintiff.” ``` ``` 4. The decree which was granted without addressing the discretion to be exercised under Section 20 is bad in law and cannot be sustained. ``` ``` 5. Ext.A1, agreement, is dated 20.06.1992, by which the parties have agreed to sell 5½ cents of property for a total amount of Rs.26,250/- by receiving an advance amount of Rs.10,000/-. There is no dispute with respect to the due execution of Ext.A1 agreement and receipt of advance amount of Rs.10,000/-. PW2, one Shenoy, was examined in order to ``` ``` AS NO. 142 OF 1997 ``` ``` 8 ``` ``` show that he had purchased the property belonging to the husband of plaintiff for an amount of Rs.9,000/- and that it was sold for the purpose of effecting payment of balance sale consideration. According to the plaintiff, the said amount of Rs.9,000/- was paid on 30.07.1992 before the expiry of the period of contract, i.e., within two months. The payment of said amount is disputed by the defendant. But, nothing was brought out in cross- examination to discredit the oral evidence of PW2, wherein he had deposed that he had witnessed the payment of Rs.9,000/- to the defendant, who is also a witness to the abovesaid sale deed. This would clearly show the readiness and willingness on the part of the plaintiff to perform his part of contract. Earnest ``` ``` AS NO. 142 OF 1997 ``` ``` 9 ``` ``` efforts were made for obtaining necessary funds by selling the property of her husband for an amount of Rs.9,000/-. The credibility of witness, PW2, has to be ascertained in the light of execution of the sale deed and it would lend support to the plaintiff’s case regarding the readiness and willingness. The balance sale consideration would come to Rs.7,250/-. The period of contract was up to 20.08.1992. PW3 is the brother of the above said Shenoy, who is a witness to the payment of Rs.9,000/-, besides the execution of Ex.A1 agreement and receipt of advance amount. PW4 is the mediator. PW2 and PW3 had given oral evidence in tune with the case advanced by the plaintiff with respect to payment of Rs.9,000/-, out of balance consideration ``` ``` AS NO. 142 OF 1997 ``` ``` 10 ``` ``` as on 30.7.1992, besides the due execution of Ext.A1 agreement and receipt of advance amount. The fact that the defendant had opted to receive the balance sale consideration in piecemeal as on 30.07.1992 would show the understanding. ``` ``` 6. Then comes the question of discretion that has to be applied in view of Section 20 of the Specific Relief Act. As discussed earlier, a Division Bench of this Court had laid down the legal position that the discretion has to be exercised not to decree the suit even if it is found to be lawful to do so. In other words, it has to be exercised in a negative way bearing the principle of equity, good conscience and intention of parties. As discussed in earlier ``` ``` AS NO. 142 OF 1997 ``` ``` 11 ``` ``` paragraph, an amount of Rs.19,000/- was received out of the total sale consideration which would constitute nearly 70% of the sale consideration agreed upon. The fact that her husband took pain to sell the property as on 30.07.1992 would lend sufficient support to the plaintiff regarding readiness and willingness. It is after the receipt of Rs.19,000/-, the defendant went back from the contract and that has resulted in the institution of the present suit for specific performance. ``` ``` 7. The learned counsel for the appellant submitted that the plaintiff claimed possession over the property which was disputed by the defendant. It was not mentioned anywhere in the agreement or in the demand notice. ``` ``` AS NO. 142 OF 1997 ``` ``` 12 ``` ``` Further this Court in Mathew Varghese v. Krishnan and Others [2020(1) KHC 433 = 2020(1) KLT 643] decisions had laid down that Section 53A of the Transfer of Property Act is inoperative. ``` ``` 8. It is not at all necessary to go further in the matter regarding the possession as the trial court had committed a very serious mistake by appointing a Receiver to take possession and directed the Receiver to hand over the possession of the property, that too, before exhausting the remedy by way of appeal and before getting the sale deed executed. It was submitted that, the plaintiff took possession under the sanctity of the impugned decree from the Receiver and had constructed a building therein. But no evidence was adduced in ``` ``` AS NO. 142 OF 1997 ``` ``` 13 ``` ``` that behalf. I.A. No.1/2021 was submitted in order to show the construction of a building in that property subsequent to the possession given to the plaintiff by the Receiver. Two documents were produced along with abovesaid application. One is the revenue tax receipt and other is the building tax receipt, which would prima facie show construction of a building over the property. But it is now well settled that without testing the genuineness of the document by providing a right of cross- examination, it cannot be accepted in evidence. IA.No.2/2021 is also filed for accepting additional evidence under which the receipt of Rs.9,000/- signed by the defendant produced. Since test by cross examination ``` ``` AS NO. 142 OF 1997 ``` ``` 14 ``` ``` is required in order to admit these two documents, unless admitted, this court cannot accept the same in evidence. Hence, both the applications will stand dismissed. ``` ``` 9.During the course of argument, thelearnedcounselforthe ``` ``` appellant/plaintiff submitted that the property is now worth more than Rs.3,00,000/- per cent. Initially, a concession was made by the learned counsel for the plaintiff expressing his willingness to pay the present value of the property since a building was constructed over the property by the plaintiff under a mistaken impression. Later on, it was withdrawn. As such, the case was posted as 'to be spoken to'. There is not much dispute regarding the ``` ``` AS NO. 142 OF 1997 ``` ``` 15 ``` ``` present value of the property and as such, though the discretion to be exercised under Section 20 of the Specific Relief Act stands against the plaintiff for the purpose of doing justice to the parties, I am of the view that specific performance can be granted by striking a balance by directing the plaintiff to pay an additional amount of Rs.4,95,000/- (Rupees Four Lakhs Ninety Five Thousand only) being the 30% of the present value of the entire property, in additiontothebalancesale ``` ``` consideration within three months, failing which there will be a decree for return of the advance amount which comes to Rs.19,000/- with interest @ 12% per annum from the date of suit till today and thereafter @ 6% per annum till the ``` ``` AS NO. 142 OF 1997 ``` ``` 16 ``` ``` date of recovery charged upon the plaint schedule property and in that event, the relief of specific performance will stand rejected. Hence decreed accordingly. It is made clear that it will not have any binding precedent, but only for safeguarding the interest of both parties and to compensate the loss sustained by the parties due to the mistake committed on the part of the trial court. ``` ``` Theappealisdisposedof accordingly. ``` ``` Sd/- ``` ``` P.SOMARAJAN ``` ``` JUDGE ``` ``` SPV ``` ``` AS NO. 142 OF 1997 ``` ``` 17 ``` ## **`APPENDIX`** ## **`RESPONDENT’S ANNEXURE`** ``` ANNEXURE A-1 :LAND RECEIPT DATED 11.10.2021. ``` ``` ANNEXURE A-2 :PROPERTY TAX RECEIPT DATED 17.09.2021. ``` ``` ANNEXURE A-3 :ORIGINAL RECEIPT DATED 30.07.1992 EXECUTED BY THE APPELLANT. ``` ``` //TRUE COPY// ``` ``` PA TO JUDGE ```