Sree Narayana Sahaya Maranavasya Sangham v. Thankamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 18TH DAY OF JULY 2014/27TH ASHADHA, 1936** **RFA.No. 287 of 2010 & CROSS OBJECTION NO.28 OF 2012 ------------------------** **AGAINST THE JUDGMENT IN OS 63/2005 of PRINCIPAL SUB COURT,KOCHI DATED 21-01-2010** ## **APPELLANT/PLAINTIFF:** **----------------------------** **SREE NARAYANA SAHAYA MARANAVASYA SANGHAM, ELAMKUNNAPUZHA VILLAGE KOCHI TALUK REP. BY ITS PRESENT PRESIDENT.** **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA SRI.P.K.RAKESH KUMAR** ## **RESPONDENTS/DEFENDANTS:** **--------------------------------------------------** **1. THANKAMMA, AGED 73, W/O.GOPALAN, RESIDING AT KANNAPPASSERY HOUSE ELAMKUNNAPUZHA MURI, ELAMKUNNAPUZHA VILLAGE KOCHI TALUK.(DIED)** **2. SHIJI, AGED 30, W/O.RATHEESH KUMAR, RESIDING AT KANNAPPASSERY HOUSE, ELAMKUNNAPUZHA MURI ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.** **3. THE BRANCH MANAGER, FEDERAL BANK LTD., NARAKKAL BRANCH NARAKKAL P.O.-682 505 (D3 STRUCK OFF FROM PARTY ARRAY AS PER ORDER DATED 30.11.05).** **R.F.A.NO.287/2010** ## **ADDITIONAL RESPONDENTS** **4. C.K.JANAPALAN, AGED 60, KANNAPPASSERY HOUSE ELAMKUNNAPUZHA MURY, ELAMKUNNAPUZHA VILLAGE ERNAKULAM DISTRICT 683 304** **5. K.G.PASUPALAN, AGED 58, KANAPPASSERY HOUSE ELAMKUNNAPUZHA MURY, ELAMKUNNAPUZHA VILLAGE ERNAKULAM DISTRICT 683 504** **6. K.G.RATHISHKUMAR, AGED 44, KANNAPPASSERY HOUSE, ELAMKUNNAPUZHA MURY, ELAMKUNNAPUZHA VILLAGE, ERNAKULAM DISTRICT 683 504** **7. K.G.SUDHARMA SASI, AGED 55, W/O SASI PUTHUVALSTHALATH HOUSE, PANAMBUKAD VALLARPADAM P.O. 683 502** **8. K.G.SHEELA SATHYAN, AGED 50 KOVIL THEKKE VALAPPIL, CHAMAKALA KUZHIMPRA P.O., THRISSUR 680 512** **9. SHEEBA ARAVINDAN, AGED 39, W/O ARAVINDAN PERINJANAM WEST P.O. KANIVALAVU VIA THRISSUR 680 512** **10. SHYLA CHANDRAN, AGED 48, W/O CHANDRAN KAVUMKAL, EDAVANAKKAD P.O., ERNAKULAM DISTRICT 683 503** *** THE LEGAL REPRESENTATIVE OF THE DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS VIDE ORDER DATED 30.3.2012 IN I.A.NO.917/2012.** **BY ADV. SRI.V.PHILIP MATHEW BY ADV. SRI.E.RADHAKRISHNAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2014, ALONG WITH CO. 28/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **R.F.A.No.287 OF 2010 & Cross Objection No.28 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of July, 2014 ## **JUDGMENT** ## Ramachandran Nair, J. This appeal is from the judgment and decree in O.S.No.63/2005 of the Sub Court, Kochi. The appellant is the plaintiff. As per the judgment and decree, the court below directed the defendants to pay a - sum of ` 1,01,002/- together with interest @ 6% for ` 50,501/ from 12/05/2004 within two months from the date of the judgment. It was found by the court below that the plaintiff is not entitled to get a decree for specific performance of the agreement and to get sale deed executed as far the as the property scheduled is concerned. The cross objection is filed by the defendants challenging that part of the decree and judgment against them. 2. The case of the plaintiff in short is the following: Plaintiff is a arrayed and described as Sree Narayana Sahaya R.F.A.No.287/2010 2 Maranavasya Sangham, which is represented by its President. It is an unregistered association in Elamkunnapuzha Village, formed in the year 1971. The parties are referred to herein, as arrayed in the plaint. The plaint schedule property is owned by the first defendant and out of the total extent of 18 cents she had agreed to sell the plaint schedule property to the plaintff Sangham, which is having an extent of 3 cents together with a building in Sy.No.256/5 of Elamkunnapuzha village. An agreement for sale was signed on 12.05.2004, wherein the total sale consideration is shown as ` 2,15,000/-. An amount of ` 50,501 was paid as advance to the first defendant on the said date. The period of agreement was fixed as six months from 12.05.2004. The second defendant is the daughter-in-law of the first defendant who was shown as the guarantor for the due performance of agreement for sale, and in case of any loss incurred to the plaintiff due to violation of agreement for sale, the second defendant agreed to compensate the same by creating charge over the property owned by her. She is also a party to the agreement for sale. 3. Initially the third defendant bank was also impleaded, but R.F.A.No.287/2010 3 later it was removed as per order dated 30.11.2005. As on the date of execution of agreement, against the entire property, liabilities were existing with the 3[rd] defendant Bank. The defendant No.1 had agreed that the liabilities will be cleared. 4. The plaintiff alleged that the first defendant did not settle the accounts within the stipulated time with the third defendant and on her request for further time for executing sale deed, two months time was granted, ending on 12.1.2005. On 15.12.2004, the plaintiff sent a lawyer notice to defendants 1 and 2 asking them to perform their part of the obligations, to measure the property, to hand over the tax receipt, encumbrance certificate, document etc, which was returned unclaimed by the second defendant. Stating that the plaintiff is prepared to pay the balance sale consideration, the suit was filed. 5. In the suit alternatively a prayer was made for grant of a decree for damages, in tune with the stipulation in the agreement, if it is found that specific performance of the agreement cannot be granted. 6. The defendants have filed separate written statements. In the written statement filed by the defendants 1 and 2, various R.F.A.No.287/2010 4 contentions have been raised. It was contended that no permission was granted to the plaintiff to sue on behalf of the Sangham and there is non-compliance of Order 1 Rule 8 C.P.C. The first defendant has three sons and four daughters and they have also right over the property and without their consent, property cannot be sold. They have objected to the sale of the property also. It was contended that the agreement is unfair and unreasonable and the sale consideration shown is totally inadequate. The price of the property in and around the place where the plaint schedule property is situated, is more than ` 1,25,000/- per cent. The first defendant is an old, ailing and an uneducated lady and her ignorance was misused by the plaintiff. It was further contended that the plaintiff did not take any steps to enforce the agreement and did not perform their part of the agreement. There were disputes among the members of the plaintiff also. It was contended that the agreement itself was cancelled by the plaintiff and defendants 1 and 2. Sri.K.G.Ratheesh Kumar, the husband of the second defendant and Mohanan, her father, gave `65,000/- to the President of the plaintiff R.F.A.No.287/2010 5 during March 2005. Actually in the agreement for sale, `. 50,501/alone was shown, as payable on cancellation, but more amount was paid by way of the said sum and interest and compensation. After receiving the amount, the title deed of the property of the second defendant was handed over by the plaintiff. It was informed that they are not interested in executing the sale deed. When the defendants 1 and 2 wanted the original agreement also to be returned, it was informed that it will be done after the formal general body meeting of the Sangham. With regard to the plea of readiness and willingness of the plaintiff also, the defendants disputed the same. 7. The third defendant's written statement, narrated the details of the loan transaction, the steps taken to effect recovery and about a suit filed as O.S.No.598/2002 by the son of the first defendant, the appeal pending from the decree as A.S.No.107/2003 and other details. Their contention was that the plaintiff is trying to alienate the property to defeat the rights of the bank. Third defendant was removed later from the array of parties. 6 R.F.A.No.287/2010 8. The plaintiff gave evidence and Exts. A1 to A5 and PW1, the President Sankaran was examined. On the side of the defendant, DW1, the son of the first defendant and the husband of the second defendant was examined and DW2, who is the father in law of DW1 was also examined. 9. We heard learned counsel for the appellant Sri.K.S.Madhusoodanan and the learned counsel for the respondents Sri.Philip Mathew. 10. The first defendant, who was the first respondent in the appeal died in the meanwhile and additional respondents 4 to 10 have been impleaded as her legal representatives, 11. The learned counsel for the appellant submitted that the defendants had agreed to execute the sale deed after receiving advance amount. Throughout the period the plaintiff has been ready and willing. Even though there was a mortgage of the property to the bank, all the loan arrears have been cleared as of now to the knowledge of the appellant. It is therefore submitted that there is no legal impediment at all to effect the transaction. Attacking the finding of the trial court that R.F.A.No.287/2010 7 the mortgage liability existing with the bank will deprive the plaintiff of the right to get the sale deed executed, the learned counsel submitted that such an approach is not legally sustainable. Even if the liability is existing, there is no impediment in directing the first defendant to get the sale deed executed after getting sale consideration. Learned counsel further submitted that the period of the agreement was extended as requested by the first defendant. Though lawyer notice was issued, no reply was given and it was returned unclaimed by the second defendant and after waiting for a few months, the suit was filed. It is submitted that since the finding by the court below is not correct, the main relief in the suit is liable to be granted. It is also submitted by the learned counsel that the suit was once decreed ex parte and balance sale consideration has been deposited by the plaintiff and sale deed was also executed. It is submitted further that after the ex parte decree was set aside in appeal, the matter had gone back and the suit was restored on payment of costs by the defendants. Thereafter the evidence was completed and the suit was decreed allowing the plaintiff only to realise the advance amount along with damages. It is R.F.A.No.287/2010 8 submitted that all the factors have been proved by the plaintiff and the specific performance of the agreement ought to have been granted by the court below. 12. Learned counsel for the contesting respondents Sri.Philip Mathew submitted, inter alia, that the plaintiff had approached the court by suppressing material facts and therefore it is not entitled for equitable relief of specific performance of the agreement. It is submitted that the deceased first plaintiff was an aged lady and the President of the plaintiff was a teacher and under his influence the agreement was executed. It was objected to by the children of the first defendant and therefore it was agreed that the plaintiff will not press for execution of the sale deed and accordingly an amount has been arrived at as damages also. This understanding resulted in payment of ` 65,000/- which was paid by the husband of the second defendant along with the father of the second defendant during March 2005. Actually the agreement stands cancelled in view of the subsequent developments and the plaintiff is not entitled to enforce the earlier agreement. It is also submitted that the original of the title deed of the R.F.A.No.287/2010 9 second defendant, whose property was made as charge for execution of the sale deed, was entrusted at the time of execution of the agreement with the plaintiff, but it was returned as the parties decided to drop the transaction. It is submitted that the same is a significant circumstance, for which, no explanation has been offered by the plaintiff in the plaint. Only in the proof affidavit, they have attempted an explanation which is not correct also. What is stated in the proof affidavit is that for paying tax, the document was got returned. It is submitted that the probabilities of the case will show that the stand taken by the defendants is the correct one. 13. Further, the learned counsel submitted that initially there was no permission under Order 1 Rule 8 of C.P.C. The plaintiff is an unregistered Association. The defect was noticed only at the fag end after the plaintiff's evidence was over. At that stage, permission was granted by the court to publish the matter, which is illegal. Learned counsel further submitted that publication made is also not in tune with Rule 20 of the Civil Rules of Practice. In that view of the matter, learned counsel submits that, the suit is liable to be dismissed as not R.F.A.No.287/2010 maintainable. 10 14. Learned counsel further submitted that the Cross Objection relates to the direction by the court to pay an amount of ` 1,01,002/and no amount is liable to be paid back by the defendants. It is also submitted that the decreed amount has already been deposited before the court below. 15. Learned counsel further submitted that there were difficulties for the defendants to get the sale deed executed because of difference of opinion among the sons and daughters. Apart from the same, the family temple is on the said plot lying contiguous to the same. So they cannot part away with the property and it is required for the development of the temple. It is therefore submitted that the subsequent variation of the terms of the agreement which was never disclosed by the plaintiff has to be taken into consideration by the court. The grant of decree for specific performance being discretionary, if it is decreed as prayed for by the plaintiff, acute hardship will be caused to the respondents. 16. The points for determination are : R.F.A.No.287/2010 11 _1. Whether the appellant/plaintiff is entitled for a decree for specific performance of the agreement -Ext.A1 or for the alternate relief of damages._ _2. Whether there is any fault on the part of the plaintiff or there is any suppression of material facts so as to deny the decree for specific performance._ _3. Whether the Cross Objection filed by the defendants/respondents is allowable._ 17. The evidence in this case will therefore have to be discussed in some detail. Going by Ext.A1 agreement dated 12.5.2004, an extent of 3 cents of land along with an unnumbered building is agreed to be sold to the first defendant for a total amount of ` 2,15,000/-. The advance received on that day is ` 50,501/-. The period of agreement is fixed as six months and the property will have to be measured and the liabilities will have to be cleared by the first defendant. It is also stated that in case the liabilities are not cleared a charge will be created over an extent of property having four cents with a building of the second defendant. It is also provided that for any reason, there is failure on the part of the defendants to take steps in tune with the R.F.A.No.287/2010 12 agreement and violates the same, the plaintiff is allowed to realise an amount of ` 1,01,002/-, namely ` 50,501/- more in addition to the advance amount as damages. 18. Ext.A2 is the copy of the lawyer notice dated 15.12.2004 said to have been sent by the plaintiff. Ext.A3 is the postal receipt and Ext.A4 is the cover returning the notice addressed to the second defendant, wherein the endorsement is “unclaimed”. The plaintiff has not produced any evidence to show that notice has been sent to the first defendant. 19. PW1 has given the proof affidavit in tune with the averments in the plaint. According to him, on 12.5.2004, an agreement was executed, the total sale consideration fixed was ` 2,15,000/- and for due performance of the agreement, the plaintiff had paid an amount of ` 50,501/- as advance. Various other details as narrated in the plaint have been stated. Among other things, he has stated that the second defendant is the daughter- in-law of the first defendant, who stood as a guarantor to the first defendant for the due performance of the agreement for sale and it was undertaken that in case of any loss caused R.F.A.No.287/2010 13 to the plaintiff for violation of the agreement, she will compensate the same by creating charge over the property owned by the second defendant. 20. With regard to the lawyer notice sent, it is stated that on 15.12.2004 notice was sent to both the defendants 1 and 2 calling upon them to perform their part of the obligation under the agreement, to measure the property and to hand over tax receipt, encumbrance certificate, document etc. It was returned unclaimed by the second defendant. The plaintiff has always been willing to purchase the property. The defendants 1 and 2 did not contact the plaintiff even for further extension of time for the agreement for sale. 21. In paragraph 9 of the proof affidavit, it is stated, while answering the averments in the written statement, that the statement by the defendants that ` 65,000/- was received for cancellation of the agreement is not correct. It is further stated that as requested by the defendants 1 and 2, the title deed of the property of the second defendant was returned for the purpose of payment of basic tax and also for getting the solvency certificate. R.F.A.No.287/2010 14 22. In the cross examination, he has stated that in regard to the purchase of the property there is a decision by the general body. At the time of execution of the agreement, it was agreed that the mortgage in respect of the property will be released before execution of the document. According to him, it was with the permission of the bank the agreement for sale was executed. According to him, the notice was issued only to the first defendant. To a specific question as to whether any document has been produced to show that notice was issued to the first defendant, the answer given is that it was sent by the lawyer with whom documents will be there. To the suggestion that Ext.A4 is not the notice sent to the defendants, he did not offer any answer. He denied the receipt of ` 65,000/- for the cancellation of agreement. 23. DW1 is the son of the first defendant and husband of the second defendant. According to him, his brothers and sisters are opposed to the sale of the property. The first defendant has three sons and four daughters and they have also right to the property and the property cannot be sold without their permission. The President of the plaintiff is a retired Headmaster, who was his teacher in the R.F.A.No.287/2010 15 Government school and all his brothers and sisters were his students. He had great influence over them. He influenced the first defendant and made her to sign the agreement without permitting her to read and understand it. She was an old, ailing and uneducated lady. It was alleged that the plaintiff did not perform their part of the contract. The agreement itself was cancelled by the plaintiff and defendants 1 and 2. Himself and Mohanan, the father of the second defendant gave ` 65,000/- to the plaintiff's President during March 2005. The agreement provides for cancellation on payment of ` 50,501/-. The entire sum of ` 65,000/- represent the said amount, interest and compensation. On receipt of the same, PW1 returned the original title deed of the property of the second defendant which was handed over to the plaintiff at the time of making the agreement. The said document has been produced before the court as security for lifting the attachment in I.A.No.510/2005. When the original agreement was asked to be returned, it was informed that the same will be done after the formal general body meeting of the Sangham. 24. It is further pointed out that the plaintiff has come up with R.F.A.No.287/2010 16 the suit since the land value in the area has increased considerably after March 2005. 25. DW2 is the father- in-law of DW1. According to him, on a day during March 2005, on the request of DW1, he went along with him to pay ` 65,000/- to PW1. PW1 informed that the agreement will be returned after the meeting of the Committee. 26. In the cross examination of DW1, he has stated that the original title deed of the property was deposited in the bank. The plaint schedule is part of 18 ½ cents of property. According to him, the minutes book of the plaintiff has been produced before the court and he has verified the various decisions taken by the Committee with regard to the agreement in question. According to him, no document is there to prove that ` 65,000/- was paid back. His brothers are witnesses, to the statement made by plaintiff that property is not required and the same is contained in the minutes also. He denied the suggestion that before filing the suit notice was received by the first defendant. According to him, in the locality, price of the property has increased considerably. In the re-examination, he has stated that behind R.F.A.No.287/2010 17 the building there is a family temple and there is a banyan tree also. According to him, ¾ of the committee members had taken a stand that the property is not required for them. 27. The first question to be considered will be whether the reasoning of the court below that in view of the subsisting mortgage, the plaintiff's right to get the document executed is affected. The property was mortgaged to the third defendant bank. The first defendant had agreed to clear the loan before the document is executed. It is well settled that even if such a liability is there in regard to the property concerned, that will not prevent the court from granting a decree for specific performance. Therefore the view in that regard by the court below is not correct. 28. We will now consider as to whether the plaintiff is entitled for a decree for specific performance of the agreement itself. The evidence will show that the period of agreement was once extended. The contention raised by the defendants is that they have paid back ` 65,000/- including compensation and interest and got the document of title of the second defendant returned. It was vehemently contended R.F.A.No.287/2010 18 by the learned counsel for the defendants that the plaintiff has suppressed the same in the plaint. 29. Various details in the pleadings and evidence will have to be considered now. In the plaint, after stating that the period of agreement was extended by two months ending on 12.1.2005, the plaintiff proceeds to state in paragraph 6 that on 15.12.2004 a lawyer notice was caused to be issued to the defendants 1 and 2. What is averred further in that the lawyer notice was returned unclaimed by the second defendant. In that paragraph no reference has been made to the returning back by the plaintiff of the original title deed of the second defendant. In the next paragraph it is stated that, even though there is a provision for claiming damages, the plaintiff primarily is seeking for a decree of specific performance. 30. In the proof affidavit, while answering the various contentions raised by the defendants, PW1 has stated in paragraph 9 that the document was returned to the second defendant as requested by the defendants since they wanted to pay the basic tax etc. The learned counsel for the defendants submitted that the said stand of PW1 will R.F.A.No.287/2010 19 support the evidence given by DW1 and DW2 regarding the payment of ` 65,000/- since as far as the return of the document is concerned, the plaintiff has suppressed the same. 31. That the document of title of the property of second defendant was obtained by the plaintiff is clear as the property has been given as the security and second defendant has also joined in the agreement. It is also clear from Ext.A5, which is the minutes book showing the various decisions of the committee. DW1 has stated that he has seen the decisions in the minutes. According to him, there were mutual talks in between and the difficulty of the first defendant to execute the document in view of the objections raised by the other sons and daughters was informed to plaintiff. 32. We have perused the minutes book which contains various resolutions. The decision to purchase the property from first defendant on payment of advance is recorded in the minutes of the meeting of the committee on 21.04.2004 at page 176. On 4.11.2004, the decision to extend the period provided in the agreement by two months, as per the request of defendants is recorded. Subsequent deliberations between R.F.A.No.287/2010 20 the parties are evident from the minutes at page 195. In the meeting of the committee dated 21.12.2004, it is recorded that on discussing the matter with the defendants, they informed that the loan transaction has not been cleared and that family members are raising objection in the matter. It is also stated that in the event the document cannot be executed, they were asked to pay the compensation, but informed that they are unable to pay the entire amount shown as compensation. They had also offered to sell two cents of land and close the transaction, to which it was informed that a reply will be given after discussing the matter in the Committee. The Committee gave their consent later to proceed with the said course. 33. There was another meeting of the committee on 10.1.2005 where the despatch of lawyer notice is noted down. The Committee discussed the deliberations made with the lawyer on the request made by the son of the first defendant to reduce the compensation provided in the agreement as the execution of the agreement is not possible due to the objections from family members. Accordingly they decided that if ` 25,000/- is paid as compensation the obligation under the R.F.A.No.287/2010 21 agreement will be released. It is recorded in the next meeting of the committee on 25.1.2005 that the first defendant was informed of the decisions to pay the compensation of ` 25,000/- to scrap the agreement. The Secretary informed the Committee that no clear reply has been given but it was informed that they will come on that day. They decided that since there is sufficient time, filing of suit can wait. In the meeting of the committee on 21.2.2005, it is recorded that even though lawyer notice was issued to the first defendant, no reply has been received. Then they resolved to file a suit at the earliest. In the meeting of the committee dated 10.04.2005, the President informed that in tune with the earlier decision, the suit has been filed. 34. The fact that there were compromise talks is evident from the above decisions. Of course it is not recorded in any of the meetings' of the Committee that they have returned the title deed of the property of the second defendant. They had demanded only an amount of ` 25,000/- as compensation for relieving the defendants from the obligations of the contract. When we come to the question whether the plaintiff is entitled for specific performance of the contract, these R.F.A.No.287/2010 22 aspects will loom large. The defendants case was that the document could not be executed because of the objection from the sons and daughters of first defendant. It is evident from the minutes of the meeting of the committee that this fact was also informed to the plaintiff. They were also made aware of the same and negotiations proceeded whereby they demanded only ` 25,000/- as compensation to scrap the agreement. This goes strongly against the plea of the plaintiff in the plaint that throughout they were willing to execute the document and there was no action on the part of the defendants to get the sale deed executed. The plaintiffs were fully made aware of two aspects namely, that the liability of the bank has not been cleared and that there are objections in the family for selling the property. At first the defendants had thought of selling two cents of land to the plaintiff. It also did not materialize. Ultimately it has come down to the stage of relieving the defendants from the liability under the agreement by receipt of ` 25,000/- as compensation. 35. But neither in the plaint nor in the proof affidavit, these aspects have been highlighted by the plaintiff. Of course, the learned R.F.A.No.287/2010 23 counsel for the appellant/plaintiff submits that since those did not materialise, there is no legal embargo in filing the suit. We are considering these aspects in the light of the significant development that the document received as security for the due performance of the agreement has also been returned by the plaintiff to the defendants. This conduct on the part of the plaintiff is also important. It can be related only to the compromise talks and the subsequent understanding between the parties to not to proceed with the sale transaction. Of course, who has gone back on the said understanding is not clear. But as highlighted by the learned counsel for the respondents, the return of the document is a crucial fact which will show that there is a change of mind on the part of the plaintiff. Such an aspect has not been disclosed or explained in the plaint. But in the proof affidavit, what is attempted as an answer is that the second defendant got the document returned for payment of basic tax etc. The same does not appear to be plausible. For payment of basic tax, the production of document may not be required also. 36. In that view of the matter, the defendants' case become R.F.A.No.287/2010 24 more probable, that the plaintiff was convinced that the document could not be executed because of the objection from the family members and like factors and the plaintiff has come down from the demand for execution of the document to one for payment of damages alone. 37. As far as this aspect is concerned, preponderance of probabilities is in favour of the defendants' case. The learned counsel for the appellant submitted that when the agreement is found to be genuine, there is no other option for the court, but to award a decree for specific performance. He relied upon the decision of the Apex Court in **Prakash Chandra v. Narayan (2012 (5) SCC 403),** where Section 20 (2)(b) was interpreted. That was a case where the first appellate court took the view that the hardship of the defendant is a matter which enable the court to deny the decree for specific performance. This was on the premise that the defendant will be landless as against the appellant who is having various businesses as well. The Apex Court found on the evidence that it has come out in evidence when cross examining the respondent that after the agreement reached, he had sold R.F.A.No.287/2010 25 four acres of land to another person and even thereafter he is retaining 2.25 hectors of cultivable land apart from 0.88 hectors of uncultivable land. It is in that context the Apex Court in paragraph 14 held that in a case of specific performance, hardship is a good defence provided such defence is taken by the defendant and evidence in support of such defence is brought on record. 38. The circumstance in which the decree is denied to the plaintiff is different in this case. The court below has not denied the decree for specific performance accepting the plea of hardship of the defendants, but on the ground of subsisting mortgage with the bank. But we have assessed the entire evidence which reveals the fact that the plaintiff had, agreed to go back on the agreement for sale on payment of compensation by defendants as provided in the agreement. Negotiations were there only as to the total amount. In **Prakash Chandra v. Angadlal and others (AIR 1979 SC 1241)** , the decision relied upon by the learned counsel for the appellant in paragraph 9 it was held that “ _the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations_ R.F.A.No.287/2010 26 _point to its refusal and the circumstances show that damages would constitute an adequate relief_ ”. 39. The law is settled that under Section 20 the court is having discretion while considering various aspects in a suit for specific performance. The learned counsel for the defendants relied upon the judgment of a Division Bench in **Susheela (Died) and others v. T.M.Muhammedkunhi (2012 (1) KHC 508),** wherein the view taken is that _“Section 16(c) is not an empty formality and readiness and willingness are to be proved right from the date of the contract till the_ _date of the decree”_ . Herein the matters pointed out as above and that are proved by Ext.A5 minutes will show that at a later point of time the plaintiff had a rethinking and after understanding the plight of the first defendant they decided that the compensation will be the adequate relief and had demanded ` 25,000/-. This circumstance according to us coupled with the return of the document of title of the second defendant is sufficient to deny the equitable relief of specific performance to the plaintiff in this case. 40. The principles to be applied under Section 20 of the R.F.A.No.287/2010 27 Specific Relief Act, 1963 are well laid. We extract herein below the **' s** dictum laid down by the Apex Court in **Parakunnan Veetill Joseph '** = **Son Mathew v. Nedumbara Kuruvila s Son (1988 (1) KLT 7 (SC) 1987 Supp. SCC 340)** which was relied upon in _**A.C.Arulappan v. Ahalya Naik (2001 (6) SCC 600)**_ _“9. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son (1988 (1) KLT 7 (SC)= 1987 Supp. SCC 340), this Court cautioned and observed as under :_ _“14. S.20 of the Specific Relief Act, 1963 preserves judicial discretion to court as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.”_ **==> picture [272 x 12] intentionally omitted <==** R.F.A.No.287/2010 28 _11. In Gobind Ram v. Gian Chand ( 2000 (7) SCC 548) it was observed in para 7 of the judgment that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it would be fair, just and equitable. The court is guided by the principles of justice, equity and good conscience.”_ In the light of the above we are of the view that the plaintiff is not entitled for specific performance of the contract to get the sale deed of the property scheduled. 41. We find much force in the argument of the learned counsel for the respondents that various aspects including the return of the document of title deed of the second defendant have not been stated in the plaint also. 42. Apart from the same, there is no evidence to show that the lawyer notice was issued to the first defendant demanding execution of the document. DW1 denied getting any lawyer notice. The plaintiff also could not prove through PW1 that notice was issued to the first R.F.A.No.287/2010 29 defendant. The defendants have got a case that the address of the second defendant in the notice Ext.A4 is not the correct one. Whatever that be, there is no evidence to show that any notice was sent or served on the first respondent. The evidence of PW1 on this aspect is very clear. It shows that the plaintiff had not demanded by a notice execution of the document to the first defendant who was the owner of the property. The second defendant was only a guarantor. The same will also go against the case of the plaintiff. Even though it is pointed out by the learned counsel for the appellant that first defendant did not give evidence, DW1 her son has been examined who has direct knowledge about the transaction. 43. One of the other points raised by the defendants' counsel is that the plaintiff is an unregistered Association and no permission was obtained under Order 1 Rule 8. It is also submitted that the publication made in the newspaper is also so short and without any details so that nobody can get an idea from the said publication and our attention was invited to the notification published. This point is considered by the court below as issue No.1. It is clear from the findings that the court R.F.A.No.287/2010 30 had not directed to publish the matter in newspaper, at first. Permission was granted under Order 1 Rule 8. When omission was noticed later, by order dated 24.1.2007, it was directed to publish the matter in Mathrubhumi daily and the plaintiff accordingly effected publication and produced the same. 44. It is pointed by the learned counsel for the respondents that the suit was filed on 4.5.2005 and once it was decreed on 30.5.2006 ex-parte which was set aside later. Even before the ex parte decree was passed, the evidence of the plaintiff and the defendants was over. It is only at the time of argument that permission was granted. What is contended is that permission granted after 1 ½ years of the filing of the suit will not make the suit maintainable. Our attention is also invited to Rule 20(1) of the Civil Rules of Practice which specifies the manner in which the application under Order 1 Rule 8 of C.P.C. with the contents specified therein has to be filed. It is submitted that the details of the agreement, and the schedule property are absent in the paper publication. 45. We will now come to the decision relied on by the learned 31 R.F.A.No.287/2010 counsel for the respondents. The first one is that of Orissa High Court ## in **Kusasan Samal v. Chandramani Pradhan AIR 2003 ORISSA** **157.** Therein the learned Single Judge in paragraph 8 took the view that _“Notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or oppose it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause._ ” 46. In the decision of a learned Single Judge of this Court in **Corporation of Trivandrum v. K.Narayana Pillai 1968 KHC 43** , in in a suit against the Secretary representing the Association, in paragraph 10 it was held that _“The Secretary of the Club or other association cannot sue alone in respect of a matter in which the Association is interested even if he is authorised so to do by a resolution of the members of the association. The suit must be brought by all the members of the association, or by the Secretary on his own behalf and_ ## **Corporation of Trivandrum v. K.Narayana Pillai 1968 KHC 43** , in in R.F.A.No.287/2010 32 _on behalf of other members under Order 1 Rule 8._ ” 47. The next decision relied upon is in **Narayanan Nambudiri** **v. Kurichithanam Educational Society (1957 KHC 215).** Therein in paragraph 1 it was held that “ _the suit will be deemed to be representative suit under Order 1 Rule 8, brought forward with the permission of the court, only after the issue of such notice_ .” A reading of paragraph 3 of the judgment will show that the learned Judge was of the view that the sanction contemplated by Order 1 Rule 8 could be given even later after the presentation of the plaint. It was held that once sanction is issued, the defect in the frame of the suit stands remedied. That was also a case where initially permission was not sought for. It was held that subsequent sanction given will cure the defect. 48. **Salafi Trust v. Mattancheri and Others v. Nazeer P. and** **others (2013 KHC 196)** is by a Division Bench wherein the relevant principles governing publication under Order 1 of Rule 8 have been examined. There also it was held that permission has to be obtained R.F.A.No.287/2010 33 and notice will have to be published. In that case no such permission or direction was obtained and no notice was served upon the persons interested or any notice was duly published. Even though the learned counsel for the defendants submitted that the same will apply to the facts of the case, we cannot agree. Here admittedly, permission was issued and the publication was made later. The decision of the Apex Court in **Sinnamani and Another v. G.Vettivel and others ( 2012 KHC 4280)** is relied upon to show that when a statutory provision clearly shows as to how a suit has to be instituted, it can be instituted only in that manner alone and in no other manner. Rule 20 of the Civil Rules of Practice is relied upon by the learned counsel for the defendants in this context to submit that publication of notice should be in tune with the prescription of the said Rule and herein the publication is not effected in tune with the said Rule. 49. The learned counsel for the appellant, per contra, relied upon the decision of the Apex Court in **Singhai Lal Chand Jain (dead) v. Rashtriya Swayam Sewak Sangh, Panna and others** R.F.A.No.287/2010 34 **(** AIR1996 SC 1211), wherein, it was held that decree is not nullity for want of permission under Order 1 Rule 8. On the facts of the said case, it was held that the President of the Sangh and its Manager have duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh. That was case where permission of the court was not taken to sue in a representative capacity of the Sangh. Relying upon Clause(b) of Order 1 Rule 8 it was held that Clause (b) applies to the facts of the said case, and that decree will be binding on the Sangh. 50. Learned counsel for the appellant/plaintiff also relied upon the decision in **Narayanan Nambudiri v. Kurichithanam Educational Society ( 1957 KLT 932)** (supra). The said decision has been affirmed by the Division Bench in **Common Club v. P.M.Mathew ( 1982 KLT 15)** . Therein the Division Bench was of the view that “ _a permission under Order 1 Rule 8 is one which the court can grant and that the effect of a grant of such permission would be to cure the defect in the frame of the suit which would have otherwise_ R.F.A.No.287/2010 35 _existed having regard to the fact that the Club is not a juristic person_ .” 51. In the light of the legal positions explained in the decisions, we are of the view that the defect has been cured by the plaintiff herein. Of course, even though the notice do not state the entire details of the agreement and other aspects, when it was published in the Mathrubhumi, we do not find that because of the same alone, the suit is not maintainable. 52. What remains is the alternate relief granted to the plaintiff and the sustainability of the same. In the Cross Objection, the same is under challenge by the defendants. We have found that the plaintiff has settled for payment of compensation as reflected in the minutes Ext.A5. Of course, they have come down to ` 25,000/- as compensation. The court below has granted a decree for `1,02,002/- which includes the advance amount and the compensation amount and an equal amount as compensation. The learned counsel for the defendants Sri.Philip Mathew submitted that in the facts of the case, such a decree ought not have granted by the court below. It is submitted that they were not liable to pay back any amount as fault is on the part of the plaintiff. 36 R.F.A.No.287/2010 53. The provision in the agreement obliges the defendants to pay the compensation if in case the agreement could not be brought into effect by the parties concerned. Herein, initially everything went on smoothly. At a later point of time, the defendants, in spite of obtaining extension of the period for execution of the document, could not execute the same since there were disputes in the family. The plaintiff was also appraised about it and then they agreed to come down from the requirement to execute the document to receipt of compensation. As far as the argument raised by the learned counsel for the defendants that the evidence of DW1 and DW2 will show that `65,000/- was paid, we cannot agree. There is no other independent evidence to support it. In the light of the execution of the agreement as well as other factors which have come into play in between, if actually the payment was effected by the defendants, they would have obtained receipt, for which there was no difficulty. The explanation by the defendants is that the President, PW1 offered to give back the document, namely the original of the agreement after the meeting of the Committee. But for proving that also there is no independent evidence. R.F.A.No.287/2010 37 DW2 is the father-in-law of the son of the first defendant. His evidence is not sufficient in that matter. 54. Therefore, actually there is no evidence convincing enough to deny the said relief to the plaintiff. Therefore we find that the decree granted as such directing the payment of compensation of an amount of ` 1,01,002/- cannot be said to be unsustainable on any score. For all these reasons, we dismiss the appeal and the cross objection. Parties will bear their costs. ## **T.R.RAMACHANDRAN NAIR, JUDGE** **P.V.ASHA, JUDGE** sv