Sandheep v. Suresh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** ## **RFA.No.864 OF 2011** **AGAINST THE JUDGMENT IN OS 1045/2010 DATED 28-11-2011 OF I ADDITIONAL SUB COURT, THRISSUR** **----------** ## **APPELLANT/PLAINTIFF:** **SANDHEEP, S/O.KRISHNAN NAIR, “SREE KRISHNA”, MALESSAMANGALAM DESOM, THIRUVILAMALA VILLAGE, TALAPALLY TALUK, TRICHUR DISTRICT.** **BY ADVS. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN** ## **RESPONDENT/DEFENDANT:** **SURESH, S/O.KRISHNA MURTHY, PARVATHI NILAYAM, THIRUVILAMALA DESOM AND VILLAGE, TALAPALLY TALUK, TRICHUR DISTRICT 680001.** **R1 BY ADV. SRI.C.DILIP R1 BY ADV. SRI.B.RAGHUNANDANAN R1 BY ADV. SRI.SREELAL N.WARRIER** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2019, THE COURT ON 20-08-2019 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = RFA No.864 of 2011** **= = = = = = = = = = = = = = = = = = Dated this the 20[th] day of August, 2019** ## **J U D G M E N T** Dissatisfied with the decree for the alternate relief of refund of advance sale consideration in a suit for specific performance, the plaintiff is in appeal. 2. Three shop rooms situated in an extent of approximately 7 to 8 cents were agreed to be conveyed by the defendant to the plaintiff as per Ext.A2 agreement dated 01.12.07. The value fixed was `3,15,000/- per cent. On the date of Ext.A2, an amount of `3 lakhs was paid towards advance sale consideration. The time fixed for performance was originally 11 months. According to the plaintiff, the tenants who were occupying the rooms could not be evicted by the defendant within the time and hence the period fixed was extended twice. The extended period was up to 31.12.2009. On 25.02.2009, a further amount of `3,25,000/- was RFA No.864 of 2011 :- 2 :- paid towards advance. On the failure of the defendant to perform the contract, the suit is filed for specific performance with alternate relief of return of the advance amount paid with interest. 3. According to the defendant, the property on measurement was found to be having a larger extent of 11 cents and that two rooms with the appurtenant land alone was occupying 8.5 cents. The plaintiff could not arrange necessary funds within time to perform Ext.A2 agreement. Accordingly, he prayed for dismissal of the suit. 4. The trial court found failure on the part of the plaintiff to prove his continued readiness and willingness to perform the contract and accordingly directed refund of the advance sale consideration. The plaintiff seeks for a decree for the main relief of specific performance and hence this appeal. 5. Heard learned counsel Sri.N.Subramaniam for the appellant-plaintiff and Sri.Sreelal Warrier, learned counsel for the respondent-defendant. RFA No.864 of 2011 :- 3 :- 6. Though the receipt of an amount of `3,25,000/- towards further advance on 25.02.2009 and the endorsements on Ext.A2 extending the period were disputed by the defendant, the same were found in favour of the plaintiff by the trial court. There is no challenge against the said decree by the defendant. Hence the defendant cannot be heard to say that time was not extended up to 31.12.2009 or that the total amount of `6,25,000/- was paid towards advance sale consideration. 7. Whether the plaintiff is entitled for a decree for specific performance, is the question to be considered. The extended period for performance of Ext.A2 was up to 31.12.2009. On 28.12.2009, the plaintiff issued a notice to the defendant calling upon him to perform the agreement. Ext.A7 is the reply dated 01.01.2010 issued by the defendant wherein it is mentioned that pursuant to Ext.A4 notice, the defendant was present at the office of the Sub Registrar, Pazhayannur on 31.12.2009, but the plaintiff failed to appear. As per Ext.A7, it RFA No.864 of 2011 :- 4 :- was further intimated that he is willing to convey 8.5 cents of property and the two vacant rooms for the price agreed provided that the sale is effected on or before 11.01.2010. To the said communication, the plaintiff sent Ext.A8 notice dated 12.01.2010 seeking performance of the sale in terms of Ext.A2 agreement. The suit is filed on 02.08.2010 i.e. after a period of seven months therefrom. No explanation whatsoever is put forward for the inaction during the said period. There is nothing to indicate that the plaintiff was ready and willing to perform the contract during the said period. It has to be borne in mind that the defendant had a contention that the plaintiff did not have sufficient funds for payment of the balance sale consideration. Though the learned counsel for the appellant-plaintiff points out that the entire balance sale consideration was deposited by the appellant pursuant to the orders of this Court, that does not relate to the period of seven months referred to above. In order to get a decree for specific performance, the purchaser has to RFA No.864 of 2011 :- 5 :- prove his continued readiness and willingness from the date of agreement till the date of execution of the sale deed. In Ardeshir H. Mama v. Flora Sassoon [AIR 1928 PC 208] , the Privy Council held that the plaintiff has to plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. This dictum was accepted by the Apex Court in Gomathinayagam Pillai v. Palaniswami Nadar [AIR 1967 SC 868]. Not only that the same has not been proved in the instant case, but there is unexplained and conspicuous silence for a period of seven months. On the above, it can only be concluded that the plaintiff has failed to prove his continued readiness and willingness to perform the contract. I concur with the said finding of the trial court. 8. There is yet another reason why a decree for specific performance cannot be passed. The property to be conveyed is to be ascertained on measurement. The total sale consideration is to be arrived at RFA No.864 of 2011 :- 6 :- accordingly. According to the plaintiff, the property has not been measured. The property and its extent has not been identified at trial by taking out a commission. Therefore, for the said reason also a decree for specific performance could not be passed. 9. Though the learned counsel for the appellant-defendant would raise a contention that the discretionary power of this Court under Section 20 has been taken away by the amendment to the Specific Relief Act brought about in the year 2018, and having upheld Ext.A2 agreement, a decree for specific performance is liable to be passed, the same does not fall for consideration in view of the finding regarding lack of readiness and willingness. 10. It is seen that the trial court has granted only 6% interest on the advance sale consideration from the date of decree till realisation. Considering the prevalent rate of interest, and the defendant having enjoyed the benefit of the amount, I deem it appropriate that the said rate be re- RFA No.864 of 2011 :- 7 :- fixed at 10% per annum. In the result, this appeal is allowed in part. The rate of interest from the date of decree till realisation will stand re-fixed at 10% per annum. In all other respects, the decree and judgment of the trial court will stand affirmed. No costs. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge