RFA No. 82/2016 & Cross Objection No. 69/2016: Leela Menon and others vs P.A. Somakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944** ## **RFA NO. 82 OF 2016** **AGAINST THE JUDGMENT & DECREE DATED 9/10/2015 IN OS 164/2010** ## **OF SUB COURT, OTTAPPALAM** ## **APPELLANT/PLAINTIFF:** LEELA MENON AGED 80 YEARS D/O.ITTIMAYAMMA @ AMMALU AMMA, PENGATTUSERRY, THALI AMSOM DESOM, THALAPPILLY TALUK, THRISSUR - ADDL.A2 MALLIKA, AGED 59 YEARS, D/O LEELA MENON, NANGIATTIL VEETTIL, NARIPARAMBU, THAVANNOOR, MALAPPURAM - ADDL.A3 LATHIKA, AGED 57 YEARS, D/O LEELA MENON, PALAKURISSI, VIDHYANIKETHAN, SREEKRISHNAPURAM, PALAKKAD - ADDL.A4 SHARMILA, AGED 52 YEARS, D/O LEELA MENON, NANGIATTIL, THONNIYOOUR, CHELAKARA, THALAPALLY, THRISSUR - ADDL.A5 SHEELA, AGED 45 YEARS, D/O LEELA MENON,NANGIATTIL HOUSE, NARIPARAMBU, THAVANNOOR, MALAPPURAM (LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.A2 TO A5 VIDE ORDER DATED 18/11/2016 IN I.A.NO.2656/2016) BY ADVS. SRI.AUGUSTINE JOSEPH SRI.GEORGE RENOY SRI.K.S.ROCKEY SRI.TONY AUGUSTINE ## **RESPONDENT/DEFENDANT:** P.A. SOMAKUMAR,AGED 64 YEARS S/O.PADINJARE ADAVAKKADU MADHAVI AMMA, EZHUMANGADU ## **RFA No.82/2016 & Cross Objection No. 69/2016** **2** DESOM, THIRUMITTAKKODU VILLAGE, OTTAPPALAM TALUK, PALAKKAD (NOW RESIDING AT INDRAPRASTHAM, UDAYA NAGAR, IST STREET, VADAKANCHERRY,THRISSUR )680582 BY ADVS. SRI.MOHAN PULIKKAL SRI.NARAYANAN P POTTY SRI.R.SUDHIR THIS APPEAL HAVING COME UP FOR HEARING ON 13.02.2023, ALONG WITH CO.69/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RFA No.82/2016 & Cross Objection No. 69/2016** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944** **CO NO. 69 OF 2016** **AGAINST THE JUDGMENT & DECREE DATED 9/10/2015 IN OS 164/2010 OF SUB COURT, OTTAPPALAM** ## **CROSS OBJECTOR/RESPONDENT/DEFENDANT** P.A. SOMAKUMAR AGED 65 YEARS, S/O PADINJARE ADAVAKKADU MADHAVI AMMA, EZHUMANGADU DESOM, THIRUMITTAKKODU VILLAGE, OTTAPPALAM TALUK, PALAKKAD. (NOW RESIDING AT INDRAPRASTHAM, UDAYA NAGAR, IST STREET, VADAKANCHERRY, THRISSUR) 680 582. BY ADV SRI.R.SUDHIR ## **RESPONDENT/APPELLANT/PLAINTIFF:** 1 LEELA MENON AGED 80 YEARS, D/O ITTIMAYAMMA @ AMMALU AMMA, PENGATTUSSERY, THALI AMSOM DESOM, THALAPILLY TALUK, THRISSUR 680 001 (DIED) ADDL R2 MALLIKA, AGED 59 YEARS, D/O LEELA MENON, NANGIATTIL VEETTIL, NARIPARAMBU, THAVANNOOR, MALAPPURAM ADDL.R3 LATHIKA, AGED 57 YEARS, D/O LEELA MENON, PALAKURISSI, VIDHYANIKETHAN, SREEKRISHNAPURAM, PALAKKAD ADDL.R4 SHARMILA, AGED 52 YEARS, D/O LEELA MENON, NANGIATTIL, THONNIYOOUR, CHELAKARA, THALAPALLY, THRISSUR ## **RFA No.82/2016 & Cross Objection No. 69/2016** **4** > ADDL.R5 SHEELA, AGED 45 YEARS, D/O LEELA MENON,NANGIATTIL HOUSE, NARIPARAMBU, THAVANNOOR, MALAPPURAM (LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.R2 TO R5 VIDE ORDER DATED 13/02/23 IN I.A.NO.1/2023) BY ADV SRI.AUGUSTINE JOSEPH THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2023, ALONG WITH RFA.82/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **RFA No.82/2016 & Cross Objection No. 69/2016** ## **5** ## **JUDGMENT** The plaintiff came up against the non-grant of specific performance of Ext.A1 contract for sale dated 20/2/2007. The defendant also filed a Cross Objection disputing the liability to pay an amount of Rs.2,00,000/- with interest thereof and also alleging alteration to the original of Ext.A1. 2. There were three payments under the contract for sale. The first one was on the day of its execution for an amount of Rs.1,00,000/-, the third one was on 28/12/2007 for Rs.75,000/-. The second one is the disputed one and according to the plaintiff, he had paid an amount of Rs.2,50,000/-, but it was disputed and denied by the defendant by stating that it was only an an amount of Rs.25,000/-. In fact, the receipt of an amount of Rs.2,00,000/- under three instalments is admitted. The contract could not be executed on account of the dispute with respect to the second payment. The readiness and willingness on the part of the plaintiff ## **RFA No.82/2016 & Cross Objection No. 69/2016** ## **6** in performing his part of contract was challenged on the ground that the plaintiff was not ready to pay the disputed amount of Rs.2,25,000/-. The trial court dismissed the suit presumably on the reason that there is no satisfactory evidence to show the disputed payment of Rs.2,25,000/-, but found that the figure Rs.25,000/was corrected as Rs.2,50,000/-. Further, the plaintiff did not mount on the box, instead the power holder had given oral evidence. 3. When any portion of advance amount or any amount as part of consideration is found to be under dispute, the same shall not be a ground to reject the readiness and willingness on the part of the plaintiff, but there should be some bonafides in raising a dispute with respect to the amount already paid. The correction alleged to have been made in the second instalment so as to appear that it is Rs.2,50,000/- and not for Rs.25,000/- would itself show the lack of bonafides on the part of the plaintiff. 4. The extent of property agreed to be sold comes ## **RFA No.82/2016 & Cross Objection No. 69/2016** **7** to 82.50 cents for an amount of Rs.8,25,000/- i.e. @ Rs.10,000/- per cent. The admitted advance amount given comes to Rs.2,00,000/-. It would cover the value of atleast 20 cents out of 82.50 cents agreed to be sold. Necessarily, the discretion under Section 20 of the Specific Relief Act has to be exercised so as to work out equity when it is found to be not possible to grant specific performance. The legal position was settled by the Apex Court in **Her Highness Maharani Shantidevi P.Gaikwad v. Savjibhai Haribhai Patel and Others (2001 KHC 1100 = AIR 2001 SC 1462)** and in **Tejram v. Patirambhau (AIR 1997 SC 2702)** . This Court had the occasion to consider the abovesaid question in **Anappath** **Parakkattu Vasudevakurup and Others v. C.Haridasan (2021** **(6) KHC 656)** and laid down as follows: “The principles behind under Section 20 of the Act i.e. equity, good conscience and fairness were also applied by the Apex Court in **Gobind Ram v. Gian Chand (AIR 2000 SC 3106)** by ordering additional amount to be paid by the plaintiff to the defendant while decreeing specific performance i.e. an additional amount was ordered to be paid **RFA No.82/2016 & Cross Objection No. 69/2016** ## **8** by the plaintiff to the defendant so as to get specific performance, by applying the principles under Section 20 of the Act - “equity, good conscience and fairness”. It cannot be construed as the exercise of power under Section 20 of the Act, but should be understood as based on the principles of “equity, good conscience and fairness” and moulding the relief based on it, for which necessarily, before imposing additional burden on the plaintiff so as to get the relief of specific performance, his consent should be obtained or a conditional decree has to be passed by specifying a time limit so that the plaintiff can exercise his option either to accept or to reject it, otherwise it would amount to imposing additional burden on the plaintiff which was not dealt with under Section 20 of the Act or agreed into by the parties. Hence, it cannot be recognized as a statutory exercise of power under Section 20 of the Act, though the very same principle embodied thereunder can be applied so as to strike a balance on account of the enhanced value of property and to mould the relief accordingly.” 5. Since, an amount of Rs.2,00,000/- was already paid out of the sale consideration of Rs.8,25,000/- for the large extent of 82.5 cents, it is fit and proper to compensate the loss occasioned on account of escalation of value of property. The advance amount given and ## **RFA No.82/2016 & Cross Objection No. 69/2016** **9** admitted is sufficient to cover the value of 20 cents out of 82.5 cents at the time when it was given. At present, the property is worth in and around Rs.50,000/per cent (submitted across the Bar). Necessarily, the present value of 20 cents would come to in and around Rs.10 lakhs and the difference would come to Rs.8 lakhs. The interest @ 6% per annum payable to the sum of Rs.2 lakhs from the date of agreement till today would come to Rs.1,92,000/-. After deducting the said amount, the balance would come to in and around Rs.6 lakhs. Hence, the compensation is assessed at Rs.6 lakhs (Rupees Six Lakhs only) without the liability of interest for a period of three months from today and thereafter it will carry interest @ 6% per annum till payment. Hence, the decree and judgment of the trial court will stand set aside by granting a decree of an amount of Rs.6 lakhs (Rupees Six Lakhs only) without the liability of interest for a period of three months from today and thereafter with interest @ 6% per annum till its payment and a decree for realization of **RFA No.82/2016 & Cross Objection No. 69/2016** **10** Rs.2,00,000/- with interest @ 6% per annum from the date of suit till its recovery. The appeal will stand allowed accordingly. The Cross Objection will stand dismissed. No costs. **Sdl-** **P.SOMARAJAN JUDGE** sv