R. Vijayakumar v. S N Prajapathy & The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945** **RFA NO. 566 OF 2005 (C) AGAINST THE JUDGMENT DATED 21.03.2005 IN OS 625/2001 OF II ADDITIONAL SUB COURT, ERNAKULAM** **-----** ## **APPELLANT/DEFENDANT:** R.VIJAYAKUMAR, AGED 40 YEARS, S/O. RAMAN PILLAI, RESIDING AT C.C.45/2128 A & B, PACHALAM, THRIKKANARVATTOM DESOM,ERNAKULAM VILLAGE, KOCHI-12. BY ADVS. SRI.T.KRISHNANUNNI (SR.) SMT.MEENA.A. SRI.VINOD RAVINDRANATH ## **RESPONDENTS/PLAINTIFF:** 1 S N PRAJAPATHY, AGED 34 YEARS, S/O. NARASIMHA BAI, BUSINESS, CHIRAMEL HOUSE, MANNAMPILLY ROAD, PACHALAM. 2 THE STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. BY ADVS. SRI.K.C.CHARLES SRI.IMTHIYAZ AHAMED SRI.A.T.RENJU SRI.VIMAL K. CHARLES THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RFA No.566 of 2005** **= = = = = = = = = = = = = = = = = = Dated this the 10[th] day of November, 2023** ## **J U D G M E N T** The decree for specific performance is under challenge by the defendant in the suit. 2. According to the plaintiff, on 14.07.2001 the defendant executed Ext.A1 agreement in his favour agreeing to convey three cents of property with a building situated thereon for total consideration of ` 10,25,000/-. On the date of the agreement, an amount of ` 2,75,000/- was paid towards advance sale consideration. The time fixed for performance was three months which is to expire on 15.10.2001. As per the terms of Ext.A1 agreement, the plaintiff was required to pay an amount of ` 1, 25,000/- to the Housing Board before 30.07.2001 to clear the subsisting liability over the property. According to the plaintiff, though the defendant was approached on various occasions for providing the details of the loan account to enable the RFA No.566 of 2005 -: 2 :- plaintiff to pay the amount, the same was not heeded to by the defendant. The notices issued by the plaintiff in the said regard were also not responded. Alleging failure on the part of the defendant to perform Ext.A1 agreement, the suit was filed. 3. According to the defendant, the plaintiff was not ready and willing to perform the contract by making payment due to the Housing Board before the date stipulated in Ext.A1. The plaintiff is not entitled for a decree for specific performance, it was contended. 4. The trial court found that the plaintiff was ready and willing to perform his part of the contract and that the agreement could not go through consequent on the default on the part of the defendant. Accordingly a decree for specific performance was granted. 5. I have heard the learned counsel on either side. 6. The points that arises for determination are:- (i) Is the finding of the trial court that the defendant was responsible for the non-performance of RFA No.566 of 2005 -: 3 :- Ext.A1 agreement sustainable on the evidence ? (ii) Is the plaintiff entitled for exercise of discretion under Section 20 of the Specific Relief Act in his favour for grant of a decree for specific performance ? 7. The execution of Ext.A1 agreement and the receipt of the advance sale consideration of ` 2,75,000/- are admitted. According to the defendant, the plaintiff failed to perform his part of the contract as stipulated in clauses 7 and 8 of the agreement. The clauses read thus:- _“7. The purchaser has paid to the Vendor a sum of Rs.2,75,000/- (Rupees Two lakhs seventy five thousand only) as advance towards the sale price of the said property, the receipt of which the Vendor hereby admits and acknowledges and the purchaser shall pay another sum of Rs.1,25,000/- (Rupees One lakh twenty five thousand only) on or before 30[th] July 2001 as further advance towards the sale price and the Purchaser shall pay to the Vendor the entire balance sale price on or before the stipulated date of 15[th] October, 2001._ RFA No.566 of 2005 -: 4 :- _8. It is mutually agreed that the further advance payable on or before 30[th] July 2001 will be utilized only for discharging the mortgage liability to Housing Board and the further advance will be paid directly by Purchaser to Housing Board and Vendor shall do the necessary paper works required for remitting the amount due to Housing Board.”_ As per the said clauses, the plaintiff was required to pay an amount of ` 1,25,000/- directly to the Housing Board before 30.07.2001, and the required paper works necessary for remitting the amounts due to the Housing Board was to be done by the defendant. While it is the plaintiff's case that he had approached the defendant on several occasions requiring him to make necessary arrangements to enable him to make payment in terms of the agreement the defendant did not cooperate, the defendant on the other hand contends that the plaintiff was not ready and willing to perform in terms of the said clauses before the stipulated date of 30.07.2001. The learned counsel for the appellant-defendant would RFA No.566 of 2005 -: 5 :- argue that there is no material to find that on or before 30.07.2001, the plaintiff had approached the defendant expressing his willingness to pay the amount as stipulated. 8. At paragraph 5 of the plaint, the plaintiff has specifically averred that he had approached the defendant three or four times before 30.07.2001 with the required amount to clear off the liability due to the Housing Board. However, the defendant did not provide the necessary details. Paragraph 5 of the plaint reads thus:- _“5. The period fixed for completing the sale as per the said agreement was up to 15.10.2001. As per the terms of the agreement dated 14.07.2001, a further sum of Rs.1,25,000/(Rupees one Lakh Twenty Five Thousand only) was to be paid by the plaintiff to the Housing Board for clearing the mortgage liability in respect of the plaint schedule property. The plaintiff went to the defendant with the aforesaid sum of Rs.1,25,000/for payment to the Housing Board. In fact, the plaintiff went to the defendant three or four times before 30.07.2001 and requested the defendant to accompany the plaintiff to the_ RFA No.566 of 2005 -: 6 :- _Housing Board for payment of Rs.1,25,000/- as stipulated in the aforesaid agreement. But, the defendant refused to accompany the plaintiff and told the plaintiff that the said amount need be paid only to the defendant and that he himself would remit the money in the Housing Board after fetting remission of the interest from the Housing Board. As the agreement stipulated remittance of the said amount in the Housing Board by the plaintiff, the plaintiff expressed readiness to pay the money, directly to the Housing Board in the presence of the defendant and to get the receipt from the Housing Board. As the defendant was not prepared to hand over to the plaintiff the necessary details of the loan availed by the defendant from the Housing Board, it was not possible for the plaintiff to pay the sum of Rs.1,25,000/- directly to the Housing Board. In such circumstances, due to the insistence of the defendant to pay the sum of Rs.1,25,000/- to him directly, the amount of Rs.1,25,000/- could not be remitted in the Housing Board as stipulated in the aforesaid agreement.”_ A reading of the written statement shows that the averments in paragraph 5 of the plaint as above are not denied therein. PW1 in his evidence has deposed in tune with the plaint averments as above. RFA No.566 of 2005 -: 7 :- 9. Ext.A2 is the notice dated 06.08.2001 issued by the plaintiff to the defendant expressing his readiness to perform the stipulation in Ext.A1 for payment of the amount. It also states that in spite of repeated requests the defendant has not cooperated and done the necessary paper works to enable the plaintiff to remit the amounts to the Housing Board. According to the defendant, in reply to Ext.A2 he had issued Ext.B1 dated 10.08.2001, denying the allegations in the notice and also informing him the details of the loan. However, the receipt of Ext.B1 is denied by the plaintiff. According to the plaintiff, in reply to Ext.A2 the defendant had sent only a blank envelope which has been produced and marked as Ext.A5. On receipt of Ext.A5, the plaintiff issued Ext.A6 notice dated 21.08.2001 to the plaintiff wherein it was specifically mentioned that he was served with only a blank envelope and reiterated his willingness to pay the amounts due to the Housing Board. The relevant sentence in Ext.A6 reads thus:- RFA No.566 of 2005 -: 8 :- _“I don’t understand why you had send a blank cover to me as registered post”._ 10. Ext.A6 letter was not replied to by the defendant. It goes a long way in proving the case of the plaintiff. When the defendant was examined as DW1, while at one portion of his cross-examination he would depose that Ext.B1 was issued through lawyer, at yet another portion he would depose that it was he who had sent it. Ext.B1 was produced only at the time of evidence. The lawyer who allegedly had sent Ext.B1 could have been examined to prove the issuance of the same. However, such a course is not resorted to. In the circumstances as above, Ext.B1 cannot be relied upon. A further notice (Ext.A9) was issued by the plaintiff to the defendant on 28.09.2001 requiring performance of the agreement, for which also there was no reply. The suit was filed on 24.10.2001. 11. The plaintiff has produced Exts.X1 to X5 statement of Bank accounts to prove that he was RFA No.566 of 2005 -: 9 :- possessed of sufficient funds to go ahead with Ext.A1 agreement and to make the payments as required under Ext.A1 agreement. It was on such materials that the trial court entered into a finding that the plaintiff was ready and willing to perform in terms of Ext.A1 and that the default in performance of Ext.A1 agreement occurred at the hands of the defendants. The finding of the trial court is based on the materials and evidence on record. Point (1) is answered accordingly. 12. It is contended by the learned counsel for the appellant that the trial court failed to exercise the jurisdiction vested in it under Section 20 of the Specific Relief Act to exercise discretion and consider whether a decree for specific performance is to be granted on the facts of the case. It is true that the judgment of the trial court does not specifically refer to Section 20 of the Specific Relief Act and also with regard to exercise of discretion thereunder. A reading of the written statement of the defendant indicates that RFA No.566 of 2005 -: 10 :- no such plea for exercise of discretion to refuse a decree for specific performance was raised. No specific circumstances dis-entitling the plaintiff for the relief for specific performance was pleaded or brought out in evidence. The materials on record prove that the plaintiff was ready and willing to perform his part of the contract and that the non-performance occurred only because of the conduct of the defendant. No circumstance dis-entitling the plaintiff for a decree for specific performance in exercise of the equity jurisdiction could be brought to the notice of even this Court. 13. Relying upon the judgment of this Court in _**Omana Mathai v. Joseph Easo 2014 (1) KLT 689**_ , the learned counsel for the appellant would argue that, since there has been failure on the part of the trial court to exercise the jurisdiction vested in it under Section 20 of the Specific Relief Act, this Court is bound to set aside the decree and remand the matter back to the trial court for consideration of the same. I do not think that RFA No.566 of 2005 -: 11 :- such a course is liable to be adopted in this case. Ext.A1 agreement was executed on 14.07.2001 fixing the period for performance as three months. Ext.A2 to A6 and A9 notices were issued by the plaintiff requiring performance, well within the period stipulated under Ext.A1. The suit was filed on 24.10.2001 immediately after the period fixed in Ext.A1 had expired. The suit was decreed by the trial court in 2005. As noticed earlier, no circumstances calling for exercise of discretion to refuse a decree for specific performance was brought out before the trial court or this Court. In terms of Section 107 of the Code of Civil Procedure, appellate court has the same powers and duties as that of the trial court. The issue regarding exercise of discretion in terms of section 20 of the Specific Relief Act have been adverted to and considered by this Court. A remand for the said purpose is unnecessary. The evidence on record does not bring out any circumstance requiring exercise of discretion to refuse a decree for RFA No.566 of 2005 -: 12 :- specific performance. 14. Lastly the learned counsel for the appellant would rely on _**Saradamani Kandappan & Ors. v. Rajalakshmi & Ors. AIR 2011 SC 3234**_ and contend that, the agreement is of the year 2001 and presently we are in the year 2023 and by the passage of time, there has been a steep rise in prices and grant of a decree for specific performance at this distance of time would be unjust, arbitrary, unreasonable and inequitable. As noticed earlier, the agreement is dated 14.07.2001. The time fixed for performance of the agreement was 3 months. Immediately after expiry of the period of three months the suit was filed on 24.10.2001. The trial court granted a decree as early as on 21.03.2005. The mere pendency of the appeal at the instance of the defendants before this Court for such a long period should not be a ground to exercise the discretion to the prejudice of the plaintiff. This is not a case where a decree for specific performance RFA No.566 of 2005 -: 13 :- was refused by the trial court and decree is being granted for the first time by this Court in appeal. The suit was already decreed for specific performance as early as in the year 2005 in respect of an agreement for sale of the year 2001. Therefore, the principle relied on by the learned counsel for the appellant does not apply. 15. The evidence on record justify the decree of the trial court, for specific performance. No grounds are made out to interfere with the decree and judgment of the trial court. The appeal fails and is dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge