SASI v. K. Mohanan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 RFA NO. 720 OF 2008 (F)** **AGAINST THE JUDGMENT AND DECREE DATED 18.01.2008 IN OS 207/2007 OF SUB COURT, PERUMBAVOOR** **-----** ## **APPELLANT/PLAINTIFF:** SASI, AGED 41 YEARS, S/O ELAVUMKUDI VEETTIL AYYAPPAN, PERUMBAVOOR VILLAGE, REPRESENTED BY POWER OF ATTORNEY E.A.RAJAN, AGED 46 YEARS, S/O. AYYAPPAN, BUSINESS. BY ADV SRI.G.RAJAGOPAL ADV. N. RENJINEE DEVI ## **RESPONDENT/DEFENDANT:** K.MOHANAN, AGED ABOUT 52 YEARS, S/O.KRISHNAVILASAM VEETTIL KUTTAPPAN, PERUMBAVOOR VILLAGE,KUNNATHUNADU TALUK. BY ADV SRI.G.SREEKUMAR CHELUR THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.720 of 2018** **= = = = = = = = = = = = = = = = = = Dated this the 13[th] day of February, 2024** ## **J U D G M E N T** The suit for specific performance with alternate relief for return of advance, was decreed for the alternate relief. Dissatisfied with the decree, the plaintiff is in appeal. 2. Ext.A2 is the agreement dated 22.09.2006 which is sought to be specifically enforced. The plaintiff and the defendants are first cousins (children of brothers). As per Ext.A2, the property belonging to the defendant under document No.2768/1993 of the Perumbavoor SRO was agreed to be sold to the plaintiff for a sale consideration of ` 26,500/- per cent, for the extent found available on measurement. On the date of agreement an amount of ` 50,000/- was paid towards advance sale consideration. The period fixed for performance was six months. Alleging failure of the defendant to perform the R.F.A. No.720 of 2018 -: 2 :- agreement, the suit was filed. 3. The defendant challenged the readiness and willingness of the plaintiff to go ahead with the transaction. 4. The trial court, exercising the discretion under Section 20 of the Specific Relief Act, declined specific performance. 5. I have heard Sri.G.Rajagopal, the learned counsel for the appellant and Sri.G.Sreekumar Chelur, learned counsel for the respondent. 6. The point that arises for determination is, _“Does the exercise of discretion by the trial court under Section 20 of the Specific Relief Act, declining decree for specific performance, warrant interference?”_ 7. PW1 is the power of attorney holder of the plaintiff. He is the brother of the plaintiff. The plaintiff is working abroad. Adjacent to the property in question is a wetland which belonged to the defendant ## R.F.A. No.720 of 2018 ## -: 3 :- and was conveyed to PW1 during the currency of Ext.A2 agreement. According to the defendant, the wetland was conveyed at the rate of ` 3,500/- per cent, and claiming that the property covered under Ext.A2 is also a converted land the plaintiff wanted the sale consideration in Ext.A2 to be reduced. It is alleged that the plaintiff had caused complaints to be filed before the Revenue Divisional Officer alleging filling up of paddy land. Except for the averment, there is no evidence regarding the same. However it is not in dispute that, it was during the currency of Ext.A2 agreement that the adjoining wetland was got conveyed by PW1 from the defendant. 8. In the cross-examination of PW1 it is admitted that the sale agreement was entered into to enable the defendant to purchase a property which is situated near to his wife's house. On the first date of appearance before the trial court, the defendant expressed before R.F.A. No.720 of 2018 -: 4 :- the Court his readiness to execute the sale deed, that is essentially conceding for the suit to be decreed. Taking note of the same, the court ordered execution of the sale deed on or before 22.06.2007. However, surprisingly, the plaintiff did not take any step to get the sale deed executed. He proceeded with the trial of the suit. Having due consideration to the conduct of the plaintiff the trial court refused to grant decree for specific performance. 9. According to the learned counsel for the appellant, the defendant was bound to satisfy the plaintiff of the extent available, and that the total sale consideration payable was to be fixed based on the same. The obligation of the plaintiff to perform the contract arises only after the defendant convinces him about the extent of property. The defendant having failed in his obligation, the readiness and willingness of the plaintiff is irrelevant. To substantiate the R.F.A. No.720 of 2018 -: 5 :- contention, the learned counsel relied on the judgment of this Court in _**Faizal Eroth v. Venkalath Raveendran 2013 (3) KLT 1041**_ . The learned counsel would further rely on the judgments in _**Gaddipati Divija v. Pathuri Samrajyam 2023 KHC 6404**_ , _**Daivasigamani P. v. S. Sambandan AIR 2022 SC 5009**_ , _**Aniglase Yohannan v. Ramlatha and Ors. 2005 (4) KLT 280**_ to contend that, the exercise of discretion under Section 20 is to be founded on sound legal principles and cannot be arbitrary. On the facts of the case, discretion ought have been exercised in favour of the plaintiff to grant a decree for specific performance, it is argued. 10. A reading of the terms in Ext.A2 agreement does not seem to suggest that the term regarding measurement of the property was an obligation cast unilaterally on the shoulders of the defendant alone. The relevant recital in Ext.A2 reads thus:- “. . . . . {]kvXp-X h-kv-Xp-h-II-sf Xo-sd-gp-Xn ssI-am-dp-¶Xn-\v \n-Ý-bn-¨ Sn Im-em-h-[n-¡p-Ån Xo-dÀ-° _m-¡n- R.F.A. No.720 of 2018 -: 6 :- ¡m-bn h-kv-Xp-sh Af-¶v ]-c-kv]-cw t_m-²y-s¸«v hn-e _m-¡n Xm-¦Ä F-\n-¡v X-cp-t¼mÄ പററ h-kv-Xp-sh Xo-dv X¶v sIm-Åmw. . . . . . ” As was noticed earlier, the plaintiff as PW1 has admitted in his cross-examination that the defendant entered into Ext.A2 agreement to enable him to acquire another property. According to the learned counsel for the defendant, it is in the said background that on the very said date of appearance, it was submitted before the court that the defendant is willing to execute the sale deed and the court ordered accordingly. If the grievance of the plaintiff was with regard to the measurement of the property he could have very well requested to issue a commission to have the extent of the property identified and the total sale consideration fixed. The fact remains that in spite of the order dated 04.06.2007, which was as good as a decree for specific performance, the plaintiff never chose to move his R.F.A. No.720 of 2018 -: 7 :- little finger to take things forward and to get the sale deed executed. It is only within his knowledge as to why he did not take any steps in furtherance thereof. If he had sought the issuance of a commission and had the extent identified, on the very admission of the defendant the Court would have straight away granted a decree for specific performance. For some reason the plaintiff appears to have been not willing for the same. The plaintiff having chosen to proceed with the suit the defendant availed the remedy of contesting the claim, which he was entitled to. PW1 in his cross-examination has admitted that the price of the properties has soared up thereafter. The relevant portion of his deposition reads thus :- “ . . . . . tIm-S-Xn-bn ]-d-ª k-ab-¯v h-kv-Xp F-gp-Xn hm-§n-¡m-Xn-cn-¡m³ Imc-Ww ഉണണണ (Q) A-t±-lw X-¿mA dm-bnà ( ) {]-Xn h-kv-Xp F-gp-Xn X-cm³ X-¿m-dm-bn-cp-¶p F-¶v ]-d-ªm A-dn-bnÃ. A-Xn-\v ti-jw C-cn-t§mÄ h- kv-Xp-hn-\v hn-e-IqSn. . . . . . .” R.F.A. No.720 of 2018 -: 8 :- It is taking note of the entire circumstances as above that the trial court chose exercise of discretion not to grant a decree for specific performance. It cannot be said that the exercise of discretion is arbitrary. The view adopted by the trial court cannot be said to be perverse, but is a possible one. The decree and judgment of the trial court warrants no interference. Appeal fails and is dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge