Suja Bhai P.B. v. K.P. Johny

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 RFA NO.356 OF 2022** **AGAINST THE JUDGMENT AND DECREE IN O.S.NO.650/2011 OF I ADDITIONAL SUB COURT, THRISSUR** **----------** ## **APPELLANT/DEFENDANT IN O.S.NO.650/2011:** **SUJA BHAI P.B., AGED 47 YEARS, W/O.SURESH, MULLANGATH HOUSE, SREENARAYANA PURAM VILLAGE, PANANGAD DESOM, KODUNGALLUR TALUK, NOW RESIDING AT PANDARIKKAL HOUSE, P.O. ELTHURUTH, THRISSUR-680 611.** **BY ADVS. B.KRISHNAN R.PARTHASARATHY SEEMA** ## **RESPONDENT/PLAINTIFF IN O.S.650/2011:** **K.P.JOHNY, AGED 78 YEARS, S/O.PORINCHU, KATTUKKARAN HOUSE, MANALUR VILLAGE, DESOM, THRISSUR TALUK, PIN - 680617.** **BY ADVS. J.SURYA V KRISHNA MENON** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.2.2023, THE COURT ON 10.03.2023 DELIVERED THE FOLLOWING:** **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ----------------------------------------R.F.A.No.356/2022** **-----------------------------------------** **Dated this the 10[th] day of March, 2023** ## **J U D G M E N T** A.Muhamed Mustaque, J. The defendant in a suit for specific performance has approached this Court in this appeal challenging the decree of specific performance. The defendant is the owner of certain extent of land in Kurichikkara Village in Thrissur Taluk. On 6/5/2010, the defendant agreed to sell 3 Acres 84.5 cents of land to the plaintiff. The consideration was calculated at Rs.26,497/- per Cent. Rs.1 lakh was paid as earnest money. The plaintiff agreed to pay Rs.29 lakhs in the bank where the property was mortgaged. It was also agreed that the agreement will be performed on or before 6/9/2010. The plaintiff had paid Rs.29 lakhs as agreed. The agreement was extended on 6/9/2010 until 10/10/2010 **R.F.A.No.356/2022** ## -:2:- for the reason that certain extent of land in the resurvey records had not been changed in the name of the defendant. Again the agreement was extended until 30/10/2010. Lastly, the agreement was extended on 23/2/2011 with an understanding that if the resurvey issue is not resolved on or before 7/3/2011, the agreement will not be extended further and if law permits, the undisputed land will be registered before 10/3/2011. It is admitted by the parties that a total amount of Rs.45 lakhs was paid on various occasions by the plaintiff to the defendant. 2. The plaintiff appears to have expressed his willingness to perform this agreement. Accordingly, the plaintiff sent a lawyer's notice on 19/5/2011 demanding specific performance of the agreement. **R.F.A.No.356/2022** ## -:3:- 3. The defendant did not respond to the notice. Accordingly, the suit was laid for specific performance. 4. The defendant's case was that on 10/3/2011, agreement was rescinded on mutual agreement by making an endorsement on the 7[th] page to the agreement dated 6/5/2010 on a condition that the defendant would return Rs.45 lakhs with 7% interest to the plaintiff. 5. Trial Court found in favour of the plaintiff and granted specific performance except in relation to 39.03 Cents of land. The trial court found that with respect to the 39.03 Cents of land referred in the Commission report, there exists a dispute in the survey reports. Further, in the light of the agreement dated 23/2/2011 between the parties, there is no difficulty for the defendant in executing a deed in respect of undisputed land. The trial court also noted that the defendant **R.F.A.No.356/2022** -:4:- failed to prove the last of the endorsement claimed by the defendant that rescinded the contract itself. 6. In this appeal, the learned counsel for the appellant raised the following points for consideration: _i._ Non examination of plaintiff in a suit for specific performance is fatal to grant the relief of specific performance _ii._ Time being the essence of the contract, the contract itself ran out by efflux of time; therefore, the plaintiff was not entitled to the relief of specific performance. 7. The plaintiff was not examined. His son was examined as PW1. According to the defendant, the son has no personal knowledge of the matter. The learned counsel for the appellant relied on the judgment of **Man Kaur (Dead) by Lrs. v. Hartar** **R.F.A.No.356/2022** ## -:5:- **Singh Sangha [(2010) 10 SCC 512]** and argued that oral testimony of a person who has no personal knowledge of the transaction cannot be relied upon by the Court. According to the learned counsel regarding the readiness and willingness, the plaintiff alone can speak about it. We perused the evidence of PW1. He was cross-examined at length. It was deposed by PW1 that his father, the Plaintiff was laid up. He minutely deposed about the transaction and recollected every detail of the transaction without any error. As rightly pointed out by the respondent-plaintiff, the veracity of the testimony has to be tested by its credibility. We cannot eschew the oral evidence of PW1 in this appeal. The Apex Court in **Man Kaur's** case supra referred to the legal position as to who should give evidence in regard to matters involving personal knowledge and summarized the law as follows: **R.F.A.No.356/2022** ## -:6:- 12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders. (e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that **R.F.A.No.356/2022** ## -:7:- attorney holder to prove the transaction, and not a different or subsequent attorney holder. (f) where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. The Apex Court in the above judgment referred to acceptance of evidence of a son who was exclusively managing the affairs of his infirm father, with reference to the readiness and willingness in a suit for specific performance of **R.F.A.No.356/2022** ## -:8:- an agreement of sale. As noted above, PW1 evidence can be accepted as there is nothing to indicate he had no personal knowledge of the transactions. 8. As seen from the last endorsement on the sixth page of the agreement for sale, the parties agreed that their undisputed land can be registered on or before 10/3/2011 if it is legally permissible. The parties also agreed not to extend the period for performance further. Section 55 of the Indian Contract Act, 1872 refers to the effect of failure to perform a contract within a fixed time where the time fixed is essential. Section 9 of Specific Relief Act, 1963 provides that a defence can be availed by the defendant in a suit for specific performance on any ground which is available to him under any law relating to contracts. In **Citadel Fine Pharmaceuticals v.** **Ramaniyam Real Estates Private Limited and Another** **[(2011) 9 SCC 147],** the Hon'ble Supreme Court with **R.F.A.No.356/2022** ## -:9:- respect to Section 55 of the Indian Contract Act and Section 9 of the Specific Relief Act held as follows: 52. Keeping the above principle if we look at the position of law in India, it is clear that under Section 9 of the Specific Relief Act, 1963 it is provided as follows: "9. Defences respecting suits for relief based on contract. - Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts." 53. It is clear from Section 9 of the Specific Relief Act, 1963 that Section 55 of the Contract Act, 1872 enables a defendant against whom a suit for the specific performance has been filed to raise the defence under Section 55 of the Contract Act. 54. Section 55 of the Contract Act which deals with a contract, in which time is of essence is as follows: "55. Effect of failure to perform at fixed time, in contract in which time is essential.- When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract." 55. On a combined reading of Section 9 of the Specific Relief Act and Section 55 of the Contract Act it is clear that in this **R.F.A.No.356/2022** ## -:10:- case the vendor as a promisee, was within its right to terminate the contract by sending the letter dated 4-9-1996 in terms of Clause 9 of the contract while returning the advance money of Rs 10,00,000. It is clear that the plaintiff has not discharged its burden within the time specified and is not entitled to a specific performance of the contract. 9. Therefore, if the defendant was able to prove that the plaintiff failed to perform his part of the promise within the specified time where time is the essence of the contract, the contract would become voidable at the option of the defendant. That does not mean that the contract would automatically become void or rescinded as performance was not completed within the fixed time period. The defendant, in order to succeed with reference to Section 55 of the Indian Contract Act, has to prove that time was the essence in the contract and the plaintiff failed to perform his part of the contract within this time. 10. As revealed from various payments effected by the plaintiff, it can be seen that plaintiff was **R.F.A.No.356/2022** ## -:11:- always willing to perform his part of the contract. They have also taken steps to resurvey the land. The defendant noting that there is nothing to indicate that the plaintiff was willing or ready to complete the transaction, set up a case that the parties had mutually agreed to rescind the contract. The plaintiff disputed his signature. No steps were taken by the defendant to send the document for expert opinion. 11. In light of the above, we dismiss the appeal and uphold the judgment in O.S.No.650/2011, dated 19/7/2022, granting specific performance of agreement dated 23/2/2011 for sale of entire plaint schedule property, except 39.03 cents of property. No costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SHOBA ANNAMMA EAPEN, JUDGE** **ms**