Surendran Pillai v. Radhakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **RFA.No.367 OF 2003** **AGAINST THE JUDGMENT & DECREE IN OS 25/2001 DATED 19-06-2003 OF PRINCIPAL SUB COURT,ALAPPUZHA** ## **APPELLANT/DEFENDANT:** **SURENDRAN PILLAI, S/O. AYYAPPAN PILLAI, RESIDING AT G-4, SHARON CO-OPERATIVE SOCIETY BUILDING, (C WING) I.C. COLONY, BORIVILLI, MUMBAI (DIED) LRS IMPLEADED** ADDL.A2 **SMITHA NAIR, DAUGHTER OF LATE SURENDRAN PILLAI, AGED 50 YEARS, RESIDING AT G-4, SHARON CO-OPERATIVE SOCIETY BUILDING, (C WING), I.C. COLONY, BORIVILLI, MUMBAI-400103.** > ADDL.A3 **VIJAYALAKSHMI PILLAI, W/O. LATE SURENDRAN PILLAI, AGED 72 YEARS, RESIDING AT G-4, SHARON CO-OPERATIVE SOCIETY BUILDING, (C WING), I.C. COLONY, BORIVILLI, MUMBAI-400103. SURESH PILLAI, AGED 49 YEARS,** ADDL.A4 **SON OF LATE SURENDRAN PILLAI, RESIDING AT G-4, SHARON CO-OPERATIVE SOCIETY BUILDING, (C WING)M I.C. COLONY, BORIVILLI, MUMBAI-403 103.** **LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 4 VIDE ORDER DATED 9.3.2016 IN I.A. 583/16.** **BY ADV. SRI.B.SAJEEV KUMAR** RFA.367/2003 2 ## **RESPONDENT/PLAINTIFF:** **RADHAKRISHNAN, S/O. THANKAPPAN PILLAI, RESIDING AT VATTAPPARAMBATHU, MARARIKULAM MURI, MARARIKULAM NORTH VILLAGE, ALAPPUZHA DIST.** **R1 BY ADV. SRI.MANUEL KACHIRAMATTAM R1 BY ADV. SMT.MERRY GEORGE** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-09-2019, THE COURT ON 24-10-2019 DELIVERED THE FOLLOWING:** RFA.367/2003 3 ## **JUDGMENT** **Dated this the 24th day of October 2019** Feeling aggrieved by the judgment and decree in O.S. No.25 of 2001 on the file of the Principal Sub Court, Alappuzha, the defendant has come up with this appeal. The suit filed by the plaintiff for specific performance of contract was decreed by the impugned judgment and decree. 2. The parties are referred to as the plaintiff and the defendant, as per their ranking before the trial court. 3. The relevant facts required for disposal of this appeal in brief are as follows: The defendant who is the owner in possession of the plaint schedule property agreed to sell the same for a sale consideration of Rs.4,500/- per cent to the plaintiff in the RFA.367/2003 4 month of March, 2000 and an amount of Rs.15,000/- was received by him as advance. It was also agreed to by the parties to measure out the property to determine the actual extent and to fix the sale consideration. During the first week of November, the defendant came to Cherthala from Mumbai where he was residing and on 29.11.2000 executed an agreement incorporating the terms and conditions of the transaction and received an amount of Rs.50,000/-. As per the stipulation in the agreement, the time fixed for execution was six months. While so, on 4.12.2000 the plaintiff received a letter from the defendant repudiating the contract alleging that the property would fetch a consideration of Rs.40,000/per cent due to the formation of a road through the adjacent land and hence he was not willing to alienate the property as agreed to by him. Though the plaintiff was ready and willing to get the sale deed executed by paying the balance RFA.367/2003 5 consideration the defendant was not willing for the same. Actually, the unilateral repudiation of the contract by the defendant is illegal and hence the suit for specific performance of contract. 4. The defendant denied the averments in the plaint and contended that the plaintiff is not entitled to get a decree for specific performance of contract for the main reason that the plaintiff concealed the fact that the property has direct access to a road and the failure to inform the proximity of the road amounts to fraud. In fact, the defendant who is residing at Mumbai had decided to alienate the property as there was no direct access to the road. The agreement to sell the property was made by the plaintiff and the defendant when the plaintiff visited Mumbai and at that time the defendant was not aware of the formation of the new road near the plaint schedule property. During the last RFA.367/2003 6 week of November, as agreed to by the parties, the defendant came to Cherthala in order to sell the property to the plaintiff as per the agreement between them. But the plaintiff was not ready with the balance sale consideration and requested for extension of the period for execution as funds was not ready with him. The plaintiff has also promised to pay a further sum of Rs.50,000/- as advance and an agreement was entered into for extension of time but in fact the plaintiff played fraud upon the defendant by concealing about the existence and importance of the newly constructed road adjacent to the property. When the defendant realized that the plaintiff had played fraud upon him, he requested for taking back the advance, but the plaintiff refused to accept the same. Actually, the agreement is void ab initio and there was no free consent to execute the same. Therefore, the plaintiff is not entitled to get a decree for specific performance of contract is the RFA.367/2003 7 contention raised by the defendant. 5. Before the court below, the plaintiff was got himself examined as PW 1 and PW 2 was examined. Exts. A1 to A3 were also marked on the side of the plaintiff. On the side of the defendant, he himself was examined as DW1 and Exts.B1 to B3 were marked. The court below, on appreciation of the evidence adduced by the parties, decreed the suit for specific performance of contract and hence the appeal. 6. Heard Adv. Sri. B. Sajeev Kumar, the learned counsel for the appellant/defendant and Adv. Sri. Manuel Kachiramattom, the learned counsel for the respondent/plaintiff. 7. The plaint schedule property is having an extent of 50 cents in Sy. No. 50/2/9 of Mararikulam Village, owned and possessed by the plaintiff. It is the common case of the parties that the defendant agreed to sell the plaint schedule RFA.367/2003 8 property to the plaintiff for a sale consideration of Rs.4,500/per cent and paid an advance amount of Rs. 15,000/-. Both sides have no case that a written agreement was executed at that point of time evidencing the agreement to sell the property. But the suit document is Ext.A1, the sale agreement dated 29.11.2000. The defendant though admitted the execution of Ext.A1 sale agreement, had disputed the case of the plaintiff mainly contending that the plaintiff had concealed or failed to disclose the existence of a public road near the plaint schedule property so as to have direct access. According to the defendant, in fact he decided to alienate the property as there was no direct access to the road and at that point of time he was residing at Mumbai and had no direct information about the formation of the road. According to him, as he was away, he had no idea of the same and the plaintiff did not inform him about the existence of the road. RFA.367/2003 9 So, he decided to alienate the same. But, when it was revealed that a road came into existence very close to the property, providing direct access to the public road, he decided to settle down in the plaint schedule property after his retirement from service. According to him, he got information about the formation of the road immediately on execution of Ext.A1 sale agreement, and so he repudiated the same as fraud was played by the plaintiff. The suit was contested on the allegation that the agreement was vitiated by fraud and hence he was not entitled to perform his part of the contract. 8. Admittedly, the defendant was permanently residing at Mumbai for about 50 years. According to the plaintiff, he came to know about the intention of the defendant to sell the property from one of his close relatives and thereafter he met the defendant at Mumbai and he agreed to RFA.367/2003 10 sell the property and Rs. 15,000/- was received as advance. It is also admitted by him that as per the understanding, the defendant came to Alappuzha in the month of November, 2000 and as per the mutual understanding between the parties an additional amount of Rs.50,000/- was received and Ext.A1 was executed and thus, the total advance amount received was Rs.65,000/-. The further case of the plaintiff is that, when Ext.A1 was executed, the prior document executed was received back by the defendant. He has also testified before the court that he was always ready and willing to get the document executed in terms of Ext.A1, but the defendant had repudiated the contract by issuing Ext.A2 notice. The defendant as DW 1 has no case that there was no agreement between them for purchase of the property, but admitted that the agreement to sell was decided at his residence at Mumbai and though he had demanded an amount of Rs.6,000/- per RFA.367/2003 11 cent, the plaintiff offered only Rs.4,000/- and after negotiation it was finalized and fixed as Rs.4,500/- He had also admitted that while executing Ext.A1 agreement, the total extent of the property was not definite and hence, it was decided to measure out the property to fix the sale consideration. The defendant in fact alleged fraud on the side of the plaintiff in repudiating contract. It has been argued that he was not aware of the existence of a road which was abutting to the plaint schedule property and the said fact was not disclosed to him by the plaintiff. It is pertinent to note that the defendant is the owner of the property and though he was residing at Mumbai, all his close relatives were residing somewhere near the plaint schedule property. It has come out in evidence from the records that the sister-in-law of the defendant had given the information to the plaintiff that the defendant is intending to sell the property and thus the RFA.367/2003 12 plaintiff approached him. It is also clear from the evidence that the defendant had entrusted one Leela, a neighbour to look after the property and if that be so, it is difficult to believe that the defendant had no information about the changes in that locality which includes the formation of the new road, making it convenient to have direct access to the plaint schedule property. 9. A reading of Section 17 of the Contract Act makes it clear that if only there is an active concealment of a fact by one having knowledge and belief of that fact, from the other party, it would amount to fraud so as to vitiate the contract. Active concealment means the wilful and deliberate intention of the party to conceal a fact in existence and having knowledge of it, from the other party to deceive him to enter into the contract, then only he can be said to have committed fraud. The plea of the defendant was not to the effect that he RFA.367/2003 13 had disclosed to the plaintiff before execution of Ext. A1 that he decided to sell the property as there was no road access to the property. Evidence is also quite lacking to conclude that there was an active concealment of the fact of the existence of the public road, by the plaintiff at the time of entering into Ext.A1 contract. But the definite case of the defendant was that the plaintiff had failed to disclose about the formation of the road to him. In fact the defendant is supposed to have information/knowledge regarding the presence of the road as access to the property and his case that the fact was not disclosed to him by the plaintiff cannot be treated as a ground to conclude that fraud had been played by the plaintiff. The recitals in Ext.A1 reveal that the defendant had executed the document with his full consent and no element of fraud is reflected in the document. In short, the evidence on record would show that the defendant could not succeed in proving RFA.367/2003 14 that fraud had been committed by the plaintiff while executing the agreement to sell the property. Of course, the defendant had contended that the proximity of the public road near the plaint schedule property providing direct access to it, resulted in escalation in the price of the land from Rs.25,000/- to Rs.40,000/- per cent and hence the sale of the same for a meagre sum of Rs.4,500/- per cent itself would show that the plaintiff had concealed the prevailing centage value of the property from the defendant. Here, it is to be noted that the defendant who is supposed to prove that the centage value of the property was much higher, did not adduce any convincing evidence in support of his plea. When fraud is alleged, the defendant has to establish it by adducing reliable and cogent evidence. It is evident from the records that Ext.A1 document was executed by the defendant without any coercion extending the time for execution of the RFA.367/2003 15 sale deed that too after accepting a further amount of Rs.50,000/- by making the total advance for the transaction as Rs.65,000/-. 10. It is significant to note that in Narinderjit Singh v North Star Estate Promoters Ltd. (2012 KHC 4279) the Apex Court has held that escalation in the price of the land cannot, by itself, be a ground for denying relief of specific performance. In a suit for specific performance inadequacy of consideration cannot be taken as a ground for nonperformance. Therefore, the assertion of the defendant that the consideration in Ext.A1 was inadequate cannot be taken as a ground to decline specific performance. 11. As per Section 16 (c) of the specific Relief Act, 1963, it is incumbent on the part of the party who approach the court for a decree for specific performance of contract to plead and prove that he was always ready and willing to RFA.367/2003 16 perform the terms of the contract which were to be performed by him. Here, it is significant to note that the term fixed for performance of contract as per Ext.A1 was six months from 29.11.2000, more specifically it will be over only by 29.5.2001. Therefore, the plaintiff will get time to arrange the balance sale consideration up to 29.5.2001, which was the major part to be performed by him. But, much before that on 4.12.2000 itself the defendant had withdrawn from the contract alleging fraud, but as mentioned earlier the defendant who alleged fraud miserably failed to prove it. Faced with this situation ,it is not possible to say that the plaintiff was not ready and willing to perform the contract within the stipulated time. 12. As per Section 20 of the Specific Relief Act, the jurisdiction to decree the suit is discretionary. It is well settled that under Section 20 of the Specific Relief Act, even if RFA.367/2003 17 the purchaser is ready and willing to purchase the property, the court is not bound to grant a decree and the court has to exercise the discretion on sound judicial principles and capable of correction by a court of appeal. 13. In Prakash Chandra v Narayan (2012 KHC 4239), it was observed by the Apex Court that hardship is a good defence provided such defence is taken by the defendant and evidence is brought on record. If the defendant is able to convince the court that by execution of the sale deed the hardship that will be caused to him is greater than the hardship caused to the plaintiff due to the non- execution of the document, the court can exercise the discretion in favour of the seller/defendant even if it is established by sufficient evidence that the purchaser was ready and willing to perform his part of the contract. Here, coming to the facts of the case, it could be seen that the defendant RFA.367/2003 18 who was permanently residing at Mumbai had purchased this property with the intention to set up a residence for his retirement life along with the family. But the plaintiff had given evidence to the effect that his intention was to construct a residential house immediately after the purchase for his residential purpose and so he made arrangements to get the document in his favour. Now it has come out in evidence that, the defendant, after issuing Ext.A2 had sent a draft for the entire amount of Rs.65,000/- received by him from the plaintiff and expressed his intention to withdraw from the contract. But the plaintiff has not encashed the draft and received the amount. It is not evident from the records that the plaintiff had the intention to withdraw from the agreement and receive the amount sent by the defendant. So, his intention to purchase the property for his personal use to set up a residence, is evident from the records. It has also RFA.367/2003 19 come out in evidence that during the pendency of this appeal, the defendant expired and his legal heirs are impleaded and they are prosecuting the case. It is not argued by the learned counsel for the legal heirs of the original defendant that they are still having the desire/intention to set up a residence in the plaint schedule property. So, it is not possible to conclude that the hardship that will be caused to the defendant due to the non-execution of the document is greater than the hardship that will be caused to the plaintiff. 14. The trial court has meticulously evaluated the evidence on record and concluded that the alleged fraud was not established by the defendant. Therefore, Ext. A1 is not vitiated by fraud. Hence, I find no justifiable ground to interfere with the finding of the court below. To sum up, I find that the judgment and decree under challenge are only to be confirmed. RFA.367/2003 20 Accordingly, the appeal is dismissed. The parties are directed to bear their respective costs. Sd/- SHIRCY V JUDGE sb