Saraswathy Amma v. Lissy Jose and Housing Co-operative Society Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** ## **RSA NO. 541 OF 2016** **AGAINST THE ORDER/JUDGMENT IN AS 40/2012 OF ADDITIONAL SUB COURT, IRINJALAKUDA** ## **OS 692/2007 OF ADDITIONAL MUNSIFF COURT ,IRINJALAKUDA** ## **APPELLANT/RESPONDENT/DEFENDANT:** **SARASWATHY AMMA AGED 59 YEARS D/O. KURUMBAYIL VEETTIL, SARADAMMA, MURIYAD DESOM, MUKUNDAPURAM TALUK.** **BY ADVS. SRI.ABDUL JALEEL.A SMT.M.A.SULFIA** ## **RESPONDENTS/APPELLANT/PLAINTIFF/RESPONDENT/DEFENDANT:** **1 LISSY JOSE AGED 50 YEARS, W/O. PALAICKAL JOSE, MURIYAD DESOM, MUKUNDAPURAM TALUK. 2 SECRETARY HOUSING CO OPERATIVE SOCIETY LTD., NO.R. 326, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SMT.S.ANJUSHA SRI.K.S.BHARATHAN SRI.B.C.MENON** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON 21.10.2022 DELIVERED THE FOLLOWING:** **R.S.A.No.541/2016 2** ## **JUDGMENT** This R.S.A. has been directed against the judgment and decree in A.S. No.40/2012 on the file of Additional Sub Court, Irinjalakuda, which in turn arise out of the judgment and decree in O.S. No.692/2007 on the file of Additional Munsiff’s Court, Irinjalakuda. 2. The suit is one for specific performance of agreement for sale. The defendant is the appellant (parties would hereafter be referred as per the status before the trial court). The plaintiff and the defendant entered into an agreement for sale with respect to the plaint schedule property having an extent of 5¾ cents in Muriyad Village of Mukundapuram Taluk on 02.09.2005 on a consideration of Rs.1 lakhs. Out of which Rs.58,000/- was paid towards advance. The defendant agreed to receive the balance consideration on or before 02.8.2006 and execute the sale deed in favour of the plaintiff. The plaintiff issued registered notice demanding the execution of sale deed on 02.08.2006 and he was present before the Sub Registrar Office on the whole day but the defendant did not turn up, hence the suit has been filed. 3. Defendant remained ex-parte. Plaintiff filed proof affidavit and Ext.A1 to A3 were marked. ## **R.S.A.No.541/2016 3** 4. The learned Munsiff, on evaluating the evidence adduced from the side of the plaintiff, taking into account the elapse of 5½ years since the date of agreement, found that consideration of Rs.1 lakh only, it is not just and equitable to grant specific performance. Escalated value over the time is also taken into account. Hence, on equitable considerations the discretionary relief of specific performance is refused and alternate relief of return of advance amount of Rs.58,000/- was granted. 5. Dissatisfied with the judgment and decree passed by the trial court, plaintiff filed A.S. No.40/2012 and the 1[st] Appellate Court by the impugned judgment allowed the appeal and ordered specific performance of the agreement on receiving the balance sale consideration of Rs.42,000/- within two months. It is also directed that if the defendant fails to execute the sale consideration within two months, plaintiff can get sale deed executed through the process of court on depositing sale consideration within two months. 6. Against which the defendant approaches this Court in second appeal. Notice was issued to the respondent. Lower court records were called for and both sides were heard. 7. According to the learned counsel for the defendant, **R.S.A.No.541/2016 4** defendant could not appear before the trial court and file written statement and sought for remand of the matter for filing written statement. It is contended that appellate court without considering the contention of the appellant that sale consideration is inequitable decreed the suit. It is contended that no notice was served to the appellant at the trial stage. It is further contended that Ext.A1 is forged document. It is also her contention that there is no evidence to prove readiness and willingness on the part of the plaintiff. Hence, according to her this is a fit case in which the trial court has refused the specific performance of contract and allowed the return of advance amount. The 1[st] Appellate Court without any basis ordered specific performance of a valuable property for meager amount. 8. The learned counsel for the plaintiff on the other hand would contend that the defendant remained ex-parte. The plaintiff filed proof affidavit in support of the pleadings in the plaint and satisfied the 1[st] Appellate Court with regard to the readiness and willingness to perform her part of contract and hence there is no reason whatsoever to interfere with the findings entered into by the 1[st] appellate court. 9. At the time of admission, this Court formulated the following substantial question of law: **R.S.A.No.541/2016 5** Was it on a wrong understanding of the reasons given by the trial court the first appellate court set aside the decree of the trial court? ## 10. Following additional substantial questions of law are also formulated: - (1) Whether the plaintiff established readiness and willingness to perform her part of contract as contemplated under Section 16(c) of the Specific Relief Act, 1963? - (2) Whether the first appellate court acted legally - in exercising the discretionary relief of specific performance in favour of the plaintiff? 11. According to the learned counsel for the appellant, the plaintiff did not adduce any evidence to prove the readiness and willingness to execute her part of contract and hence the court below went wrong in reversing the judgment and decree passed by the trial court refusing the specific performance of contract. Learned counsel in this context drew my attention to Atma Ram v. Charanjit Singh [AIR 2020 SC 3413 : 2020 (3) SCC 311 : 2020 KHC 6134] as well as Mukkani Fathima and Anr. v. Kundu Valappil **R.S.A.No.541/2016 6** ## Fathima [AIR 2019 Ker. 38 : 2019 KHC 2295] . 12. The contract in the present case between the parties was on 02.09.2005, obviously before the Amendment Act, 18 of 2018. Section 16 of the Specific Relief Act, 1963 (in short, the Act), specifies the circumstances in which the specific performance of contract cannot be enforced, which, as stood before the amendment, reads as follows: Section 16: …................. …................. (c): who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. 13. So, Section 16(c) of the Act expressly provides that whoever approaches the court seeking the relief and failed to aver and prove that he has performed or always has been ready and willing to perform the essential terms of the contract which are to be performed by him other than the terms of performance of which has been prevented or waived by the defendant is not entitled to get the relief. But the explanation (i) to clause (c) further clarifies that where a contract involves the payment of **R.S.A.No.541/2016 7** money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. Explanation (ii) provides that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. So the Act expressly provides that the plaintiff must aver the readiness and willingness on his part to perform the contract in the plaint. 14. In Atma Ram , referred above, the Apex Court while dealing with Section 16(c) and Section 20 of the Act has held that, the fact that the petitioner chose to issue a legal notice and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub Registrar to show that he was present before the Sub Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, when the suit was filed. In that case it was also found that no explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit, after issuing the legal notice. It is also held that the conduct of a plaintiff is very crucial in a suit for specific performance. Taking an overall facts and circumstances, the **R.S.A.No.541/2016 8** Apex Court uphold the reversal of the decree of specific performance granted by the trial court which has been upheld and the High Court. 15. In Mukkani Fathima , referred above, a learned Single Judge of this Court held that there was no specific averment about the readiness and willingness in the plaint and no evidence was let in to substantiate the fact that the appellant was having funds with him or had the capacity to raise funds to pay the balance sale consideration. It is also held that the discretion of the court cannot be exercised in an arbitrary manner and it should be sound and reasonable, guided by judicial principles of law. 16. In Bal Krishna and Anr. v. Bhagwan Das (Dead) and Ors. [AIR 2008 SC 1786 : (2008) 12 SCC 145 : 2008 (2) KLT SN 88 (C.No.102) SC] a two Judge Bench of the Apex Court held that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. Explanation (ii) to clause (c) of Section 16 of the Act further makes it clear that the plaintiff must aver performance of, or readiness and **R.S.A.No.541/2016 9** willing to perform, the contract according to its true construction. The compliance of the requirement of Section 16(c) is mandatory and in the absence of necessary averment in the plaint and in the absence of proof of the same that the plaintiff has always been ready and willing to perform his part of the contract, a suit cannot succeed. It is also held that the readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstance of the case, the conduct of parties, and their respective interests under the contract. It is also held that no specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and when the **R.S.A.No.541/2016 10** performance of the contract would involve some hardship on the defendant, which he did not foresee. 17. In Narinderjit Singh v. North Star Estate Promoters Ltd. [AIR 2012 SC 2035 : (2012) 5 SCC 712 : 2012 (3) KLT SN 10 (C.No.12) SC] a two Judges Bench of the Apex Court held that factum of readiness and willingness to perform the plaintiff's part of the contract is to be adjudged with reference to the conduct of the parties and the attending circumstances. 18. In Bhaskaran v. George Joseph [1988 (1) KLT 107] a learned Single Judge of this Court while dealing with Section 16 of the Act, it has been held that in a suit for specific performance the plaintiff has to allege his continuous readiness and willingness to perform the contract. Readiness and willingness of a person seeking performance of agreement where time is provided for such performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligations and accept performance when the time for performance arrives. In that case plaintiff while examining as PW1 has not stated in his chief examination that he was all along willing to perform his part of the contract and defendant adopted procrastinating tactics. ## **R.S.A.No.541/2016 11** 19. In Ouseph Varkey v. Jose [1993 (2) KLT SN 41 (C.No.43)] a learned Single Judge of this Court while dealing with Section 16(c) of the Act held that Section 16(c) of the Act makes the position clear that the specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. 20. In the present case, in the plaint, the plaintiff has specifically averred about her readiness and willingness to perform the contract. But the affidavit filed on 18.02.2011 is silent about the readiness and willingness on the part of the plaintiff in executing the agreement. The law laid down by the Apex Court as well as by this Court would state unequivocally that there should be averment and proof of readiness and willingness to perform the essential terms of the contract. 21. The readiness and willingness of the plaintiff to perform the contract is an essential part of the contract and it should be demonstrated by him from the institution of the suit till the culmination of it into decree of the court. In this case, though there is averment with regard to the readiness and **R.S.A.No.541/2016 12** willingness to perform the contract by the plaintiff in the plaint the proof affidavit is silent with regard to her readiness and willingness to perform the part of her contract. So this is a clear case in which specific performance cannot be enforced legally as per Section 16(c) of the Act. As per Section 20 of the Act the relief of specific performance is discretionary and the court is not bound to grant specific performance merely because it is lawful to do so. 22. The proceedings of the trial court would go to show that the defendant was set exparte on 21.12.2010 and service was effected to the defendant through substituted service by producing paper publication and she was set exparte. The proceedings would further go to show that the suit came up for evidence on 18.02.2011 and the plaintiff filed affidavit and Exts.A1 to A3 marked and thereafter the suit was dismissed. Subsequently, the suit was restored to file. Subsequently, plaint schedule was incorporated by filing I.A.No.1625/2011 and thereafter the suit was decreed as per the judgment dated 13.01.2012. The procedure so adopted itself is irregular. No proof affidavit seen filed subsequent to the affidavit filed on 18.02.2011 and the trial court relying on the earlier affidavit **R.S.A.No.541/2016 13** filed from the side of the plaintiff proceeded with and decreed the suit allowing the plaintiff to realise advance amount. However, after these long lapse of years, I do not think it just and proper to remand the case also. 23. The trial court taken into account the fact that the agreement is of the year 02.09.2005 and the period stipulated was upto 02.08.2006 and only on 31.07.2006 plaintiff issued notice to the defendant asking to execute the sale deed and the suit was filed on 28.05.2007. Hence, trial court was of the view that there is inordinate delay on the part of the plaintiff in approaching the court. Trial court also considered the fact of long delay of 5½ years since the date of execution of agreement and sale consideration of Rs.1 lakh was found to be inequitable to grant specific performance. 24. The learned Munsiff taking into the broad aspect of the facts and circumstances refused to grant the specific performance and granted the alternate relief of return of advance money. But the first appellate court without any proper analysis of the law and the facts especially the conduct of the parties and the absence of any evidence with regard to the readiness and willingness to perform the part of contract by the ## **R.S.A.No.541/2016 14** plaintiff which is in clear violation of Section 16(c) of the Act simply invoked the discretion and granted specific performance quite contrary to the settled principles of law by the Apex Court as well as this Court. Hence it is not sustainable either in law or on facts. In the result, the judgment and decree passed by the first appellate court is hereby set aside and that of the Munsiff's court is restored. In the facts and circumstances, parties shall bear their respective cost. The amount, if any, deposited by the 1[st] respondent/appellant/plaintiff shall be returned to her. Sd/- **M.R.ANITHA** SHG/SMF **JUDGE**