Shine, S/o Pandarikkel Sreedharan v. Devassy, S/o Thettayil Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934** ## **SA.NO. 518 OF 2002 (A)** **----------------------------------AS.642/1998 OF FIRST ADDITIONAL DISTRICT COURT, THRISSUR OS.1573/1996 OF PRINCIPAL MUNSIFF'S COURT, THRISSUR** ## **APPELLANT(S)/APPELLANT/PLAINTIFF:** **----------------------------------------------------------** **SHINE, S/O. PANDARIKKEL SREEDHARAN, CHAZHOOR VILLAGE, DESOM, THRISSUR TALUK.** ## **BY ADVOCATE SHRI C.CHANDRASEKHARAN** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **---------------------------------------------------------------** **DEVASSY, S/O. THETTAYIL ANTONY, KARAMUKKU VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.PEARLY JOSE BY ADV. SRI.U.RAVISANKAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== S.A. No.518 of 2002 ==================================== Dated this the 05[th] day of December, 2012** ## **J U D G M E N T** The Second Appeal arises from the judgment and decree of the First Additional District Court, Thrissur in A.S. No.642 of 1998 confirming judgment and decree in O.S. No.1573 of 1996 of the Munsiff's Court, Thrissur. 2. The following substantial questions of law are framed for a decision: (i) Were not the courts below in error in not granting a decree for specific performance of Ext.A1, agreement when it was found by the courts below that the defendant was not ready and willing to perform his part of the agreement? (ii) Were not the courts below in error not granting interest on the earnest money which was directed to be returned to the plaintiff? (iii) Would not refusal to award interest result in unjust enrichment to the defendant who was not ready and willing to perform his part of Ext.A1, agreement? ## **S.A. No.518 of 2002** -: 2 :- (iv) Were not courts below in error in holding that the plaintiff was not ready with the sale price when he had clearly stated in the witness box that he was ready with the money especially in the light of the decision of the Supreme Court in Smt. Indira Kaur & Othres v. Shri Sheo Lal Kapoor (AIR 1980 SC 1074)? 3. The appellant-plaintiff and the respondent-defendant entered into Ext.A1, agreement dated 20.03.1996 for sale of 5 cents and the building situated therein to the appellant for a total consideration of Rs.59,700/-. Rs.10,000/- was paid to the respondent at the time of the agreement. Time provided in Ext.A1 for its performance was six months (expiring by 20.09.1996). The respondent was to measure the property, obtain encumbrance certificate, release the employees from the property and execute the sale deed in favour of the appellant within the aforesaid time. Claiming that in spite of demand the respondent did not not do so, the appellant presented himself at the office of the Sub Registrar on 20.09.1996 but the respondent did not turn up. The appellant filed the suit for specific performance of Ext.A1, agreement and in the alternative for refund of the advance money with interest. ## **S.A. No.518 of 2002** -: 3 :- 4. The respondent contended that he was ready and willing to perform his part of the contract and in spite of his request to the appellant to pay the balance sale consideration and get the sale deed executed, the appellant did not do so. He claimed that due to the default on the part of the appellant, he has forfeited the advance money. 5. The trial court found against the appellant on the question of readiness and willingness to perform his part of the contract and refused to grant specific performance of the agreement but granted a decree for recovery of Rs.10,000/-. The respondent was directed to pay the said amount within three months failing which the appellant was to get interest at the rate of 8% per annum from the date of judgment till realization. 6. Though the appellant challenged that judgment and decree in the first appellate court, that appeal was dismissed. 7. It is contended by the learned counsel for the appellant that the evidence on record is sufficient to show that the appellant had performed his part of the contract. It is pointed out that on 20.09.1996 by which Ext.A1 was to be performed, the appellant was present at the office of the Sub Registrar as revealed from Ext.A2, copy of assignment deed dated 20.09.1996 ## **S.A. No.518 of 2002** ## -: 4 :- where the appellant figures as a witness. It is thereafter that the appellant issued Ext.A3, notice dated 23.09.1996 to the respondent requiring the latter to perform his part of contract but the respondent failed. The learned counsel submits that the only ground on which the issue regarding readiness and willingness was ensured is failure of the appellant to produce his pass book to show that he had sufficient funds in his account. Reliance is placed on the decisions in **Ramrati Kuer v. Dwarika Prasad** (1967 SC 1134) and **Indira Kaur v. Sheo Lal Kapoor** (1988 SC 1074) to contend that no adverse inference could be drawn against the appellant for not producing the pass book since evidence in that regard was given by the appellant as P.W.1, no enquiry was conducted by the respondent as to availability of sufficient funds in the account of the appellant and no request also was made by the respondent to direct the appellant produce his pass book. It is further argued that at any rate, interest should have been allowed from the date of Ext.A1. The appellant is also entitled to get compensation due to the fall in rupee value and other reasons. 8. The learned counsel for the respondent supported the judgment and decree of the trial court as confirmed by the first ## **S.A. No.518 of 2002** ## -: 5 :- appellate court. It is contended that there is no reason to interfere with the finding entered by the courts below which is one of fact based on evidence and so far as it does not involve any substantial question of law. It is submitted that the trial court has limited the interest payable from the date of judgment for the reason of failure on the part of the appellant to perform his part of the contract and hence with respect to that portion of the decree as well, no interference is called for. 9. In Ext.A1, agreement the time specified for performance of the agreement is six months which was to expire by 20.09.1996. That, time was the essence of the contract was understood by the appellant also as revealed from his evidence as P.W.1. Exhibit A2 shows that the appellant had been to the office of the Sub Registrar and signed that document as a witness. The appellant claimed that he had requested the respondent to execute the sale deed; when the appellant as P.W1 stated so, the respondent has disputed the same as D.W1. Therefore there was no convincing evidence to show that the appellant had at any time before 20.09.1996 demanded the respondent to execute the sale deed on receiving the balance sale consideration. ## **S.A. No.518 of 2002** ## -: 6 :- 10. Exhibit A3 is the copy of notice dated 23.09.1996. That notice was sent to the respondent after 20.09.1996 on which day the time specified in Ext.A1, agreement for its performance expired. 11. The respondent also did not sit quite – he issued Ext.A5, notice dated 23.09.1996 to the appellant requesting the latter to comply with the terms and conditions of the contract. 12. It was suggested to the appellant as P.W1 that he issued letter dated 29.09.1996 only after he received Ext.A5, notice from the respondent. The appellant denied that suggestion. 13. Exhibit A4 is the postal receipt for sending Ext.A3, notice dated 23.09.1996 to the respondent. From Ext.A4, it is not possible to discern when Ext.A3, notice was sent by registered post. Exhibit A6 is the acknowledgment card signed by the respondent for receipt of Ext.A3, notice. Exhibit A6 shows that the said notice was served on the respondent only on 26.09.1996. 14. Exhibit A5, notice I stated is dated 23.09.1996. Exhibit B4 is the acknowledgment card for service of Ext.A5, notice on the appellant. In Ext.B4, the appellant has not put the date of his accepting Ext.A5, notice. Therefore the contention of ## **S.A. No.518 of 2002** ## -: 7 :- the respondent that the appellant issued Ext.A3 notice dated 23.09.1996 only after Ext.A5, notice was served on the appellant cannot be said to be false though it cannot be said to be proved as well. 15. At any rate, it is relevant to note that the respondent had issued Ext.A5, notice dated 23.09.1996 (Ext.A6 shows that Ext.A3 was served on the respondent only on 26.9.1996) demanding the appellant to perform his part of the contract as per Ext.A1, agreement. Therefore prima it is not as if the respondent was not willing to perform his part of the contract. 16. True that as revealed from Ext.A2 the appellant had been to the office of the Sub Registrar on 20.09.1996. But there was no point in the appellant unilaterally going to the office of the Sub Registrar on 20.09.1996. For, he was to take the sale deed at his expenses. There is no case for the appellant that he had purchased the stamp papers for execution of the assignment deed before he came to the office of the Sub Registrar nor was the draft of the sale deed prepared. That there was any demand from the appellant before 20.09.1996 is not convincingly proved. There is no evidence to show that the appellant had demanded the respondent to measure the properties, get the encumbrance ## **S.A. No.518 of 2002** ## -: 8 :- certificate and release employees from the suit property, if any, prior to 20.09.1996. In the circumstances merely from the fact of appellant appearing at the office of the Sub Registrar, no inference is possible that it was with readiness and willingness to perform his part of the contract. 17. The appellant claimed that he has sufficient funds in his account. The respondent challenged the statement of the appellant in the cross-examination. The appellant stated he was ready and willing to produce copy of the account but he did not do so. 18. True that in the decisions relied on by the learned counsel for the appellant it was held that no adverse inference could be drawn from the mere failure of the plaintiff to produce his pass book to show that he had sufficient funds in the account (to take the sale deed). But those decisions have to apply to the facts and circumstances of that case where the defendant had not conducted any enquiry regarding the account of the plaintiff and sufficiency of funds in the account. Every decision must apply to the facts of the case. I stated that there is no evidence to show that at least before the appellant issued Ext.A3, notice he was ready and willing to perform his part of the contract. It is in ## **S.A. No.518 of 2002** ## -: 9 :- these circumstances that the trial court found that the appellant was not ready and willing to perform his part of the contract. That decision is based on facts and evidence in the case and confirmed by the first appellate court as well. 19. It is not as if the appellant is entitled to specific performance of the agreement for sale merely for the reason it is lawful to do so. Having regard to the facts and circumstances the courts below found that the prayer for specific performance cannot be allowed in favour of the appellant. I find no reason to interfere with that finding. 20. So far as the alternative claim made by the appellant is concerned, the trial court has directed refund of the sum of Rs.10,000/- within three months and failing which the appellant was to realize that amount with interest at the rate of 12% per annum from the date of judgment. It is admitted that the said sum of Rs.10,000/- was not paid by the respondent within three months from the date of judgment. The sum of Rs.10,000/admittedly given to the respondent was with the respondent from 20.03.1996 onwards. He has gained advantage of the said amount. Having regard to the facts and circumstances of the case there is no reason why the appellant should be denied ## **S.A. No.518 of 2002** ## -: 10 :- interest on the said amount from the date of suit. I say so because, at least on the date of suit the respondent ought to have volunteered to pay the said sum of Rs.10,000/- or deposit the same in the trial court for payment to the appellant. The respondent is liable to pay interest on the said sum of Rs.10,000/from the date of suit. 21. So far as the rate of interest awarded by the trial court is concerned, that part of the decree has become final since that was not challenged by the respondent either by way of an independent appeal or by a Cross Objection. Therefore the respondent is liable to pay interest on the sum of Rs.10,000/- at the rate awarded by the trial court. 22. The learned counsel for the appellant argued that the appellant is entitled to get compensation. I must take note of the fall in rupee value. The value of Rs.10,000/- paid to the respondent on 20.03.1996 is not the same value as Rs.10,000/now has. The appellant has suffered damages. The respondent is liable to make good that loss caused to the appellant which having regard to the facts and circumstances and considering the period involved is fixed as Rs.7,500/-. The said amount will carry interest at the rate of 6% per annum from this day till realization. ## **S.A. No.518 of 2002** ## -: 11 :- 23. The substantial questions of law framed are answered as above. Resultantly, the Second Appeal is allowed in part. The judgment and decree of the learned Principal Munsiff, Thrissur in O.S. No.1573 of 1996 as confirmed by the learned First Additional District Judge, Thrissur in A.S. No.642 of 1998 is modified as under: (i) The appellant is allowed to recover from the respondent and his assets Rs.10,000/- (Rupees Ten thousand only) with interest at the rate of 12% per annum from the date of suit till realization. (ii) The appellant is allowed to recover a further sum of Rs.7,500/- (Rupees Seven thousand and five hundred only) by way of damages from the respondent and his assets with interest at the rate of 6% per annum from this day till realization. (iii) Parties are directed to bear their costs in this appeal. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv