Surendran v. Baby

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ``` RFA NO. 488 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 10.08.2012 IN OS NO.389 OF 2008 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB ``` ## **`COURT,THIRUVANANTHAPURAM`** ## **`APPELLANT:`** ``` SURENDRAN AGED 49 YEARS S/O.LATE KRISHNAN,ARCHANA NIVAS,KARUMON.P.O,THIRUVANANTHAPURAM-695 002. BY ADV SRI.L.MOHANAN ``` ## **`RESPONDENT:`** ``` BABY AGED 49 YEARS D/O.SARASWATHY,TC.64/1438(1),NANDANAM, KAVINKULAM,KARUMAM.P.O,THIRUVANANTHAPURAM-695 002. BY ADVS. SRI.V.AJAYAKUMAR SRI.T.M.CHANDRAN ``` ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RFA NO. 488 OF 2013 ``` ``` ..2.. ``` ## **`J U D G M E N T`** ``` A suit for specific performance was decreed, but with an enhancement of the sale price. The aggrieved plaintiff is the appellant. The parties are referred to in their original status before the trial court. The bare minimum facts to be taken note of are as follows:- ``` ``` 2.The plaintiff/appellantandthe defendant/appellant and the defendant/respondent entered into an agreement for sale of the subject property having an extent of 15 cents on ``` ``` 11.08.2007, for a total consideration of ``` ``` Rs.5,25,000/-, of which Rs.25,000/- was paid as advance. The period stipulated for performance was ``` ``` 6 months. Alleging default on the part of the defendant/respondent,theplaintiff/appellant instituted the suit, O.S No. 389/2008, seeking specific performance. ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [37 x 10] intentionally omitted <==** ``` 3.The defendant resisted the suit contending inter alia that she entered into the agreement because of her pressing necessity for money and that she was always ready and willing to perform the contract. However, the plaintiff/appellant was not ready. The plaintiff was not possessed of the necessary funds to purchase the property. It is specifically averred in the written statement that the defendant is prepared to execute the sale deed because of her extreme necessity for money, though she is not legally bound to execute the document, since the period has expired. In fact, the defendant wanted the court to fix a date for execution of the sale deed. On such premise, the defendant sought for dismissal of the suit. ``` ``` 4.The evidence in this case consists of Exts. A1 to A6(a), supported by the oral evidence of PW1 and PW2, on the part of the plaintiff. On behalf of the defendant, Exts. B1 to B5 were ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** ``` marked, supported by the oral evidence adduced by the defendant, as DW1. ``` ``` 5.On an analysis of the facts, evidence and probabilities of the case, the learned Sub Judge decreed the suit, however, enhancing the sale price to thrice the amount stated in Ext.A1 agreement for sale. In doing so, the learned Sub Judge took stock of the general escalation in the cost of essential commodities and natural resources and concluded that the value of the property also should have been enhanced thrice, by the time judgment was delivered. Accordingly, the plaintiff was called upon to pay the sale consideration of Rs.15,75,000/-(thrice the amount of Rs.5,75,000/- stipulated in Ext.A1 agreement) and directing the defendant/respondent to execute the sale deed within 6 months from the date of judgment. ``` ``` 6.Heard Smt. Ligey Antony, learned counsel for the appellant and Sri. T. M. Chandran, learned ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [37 x 10] intentionally omitted <==** ``` counsel for the respondent. Perused the records. ``` ``` 7.This court, by order dated 29.05.2024, directed the learned Government Pleader to make available the fair value notification of the property in question pertaining to the years 2008, 2012 and also 2024. The same has been complied with. ``` ``` 8.At the outset itself, it is to be noticed that the subject matter of this appeal is only with respect to the enhanced sale consideration allowed by the trial court, to the extent of thrice the consideration shown in Ext.A1 agreement. Learned counsel would first submit that the enhancement granted by the trial court is exorbitant and unsupported by any evidence, whatsoever. Secondly, learned counsel would submit that an enhancement is not liable to be granted to the sale price, if the non-performance is attributable to the default on the part of the seller. In the instant case, ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [37 x 10] intentionally omitted <==** ``` learned counsel would highlight that the defendant/seller specifically averred in her written statement that she is ready and willing to execute the sale deed, even after the expiry of the period stipulated in Ext.A1 agreement and in fact wanted the court to fix a date for payment of balance sale consideration and also for execution of the sale deed. Acting upon the same and in compliance with the directions of the court, the appellant/plaintiff deposited the balance sale consideration before the court on 17.06.2008. However,the respondent/defendant/seller thereafter, made a somersault in her stand and resiled from her promise to execute the sale deed. To enable such change of stand, there was a change of vakalath for the respondent/defendant before the trial Court. Thus, according to the learned counsel for the appellant/plaintiff, the decree for specific performance, or for that matter, execution of sale ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** ``` deed would have taken place in the year 2008 itself, but, for the dishonest and inconsistent attitude of the respondent/defendant, which is demonstrated by the variance in her pleadings and conduct. Facts being so, the defendant/respondent is not entitled to any enhancement of the sale consideration, inasmuch as the entire sale consideration was parted by the appellant/plaintiff way back in 2008 itself by depositing the same before the court. Learned Counsel would rely upon the following judgments to buttress the argument that enhancement is not liable to be granted to the sale price, if the seller is the defaulting party. 1.Nirmala Anand v. Advent Corporation (P) Ltd. [2002 (8) SCC 146]. ``` ``` 2.Kochammu & Ors. v. Kumaran & Ors. [2017 KHC 788] ``` ``` 3. Haran Krishnakumar Mehta v. Kamla Pribhdas Nebhanani [AIR 2001 Bombay 187]. ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [37 x 10] intentionally omitted <==** ``` 4.Ranjana Nagpal v. Devi Ram & Ors. [AIR 2002 HP 166]. ``` ``` 9.Having heard the learned counsel for the parties and having perused the memo submitted by the learned Government Pleader indicating the fair value of the subject property at the relevant times, that is to say in 2008, 2010, 2012 and 2024, this Court finds some force in the submissions made by the learned counsel for the appellant. This Court notice that, as per the memo and the notification submitted by the learned Government Pleader, fair value notification was made in the year 2010, as per which, the value of the subject land was Rs. 2,00,000/- per are. The same was the situation in 2012 also, when the impugned judgment was passed. In 2014, it was enhanced to Rs. 3,00,000/- per are. In 2024, the year in which this appeal is being considered, the value is Rs.5.28 lakhs per are. The value as shown in Ext.A1 ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [37 x 10] intentionally omitted <==** ``` agreement is Rs.86,485/- per are(5,25,000 ÷ 15 ═ 35,000 per cent-converted to value per are). It could thus be concluded broadly that there was no enhancement to the extent of 3 times as found by the trial Court. ``` ``` 10.That apart, this Court notice that there is absolutely no basis for the trial court to arrive at the conclusion that the value of the property has undergone enhancement at the rate of 3 times the consideration stated in Ext.A1 agreement. The learned Judge acted on a surmise that the value of all commodities have enhanced at least 3 times, without there being any data in support thereof and had drawn an analogy of the same to immovable property as well. The course adopted cannot be sustained in law. Even before this Court, there is absolutely no evidence by any of the parties to ascertain the extent of enhancement of the value of the property. Even the appellant, who challenges ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [44 x 10] intentionally omitted <==** ``` the judgment and decree only on account of enhancement, has not chosen to produce any document in support of the allegations in this appeal. Left with no other option, this Court took the assistance of the learned Government Pleader to find out the value of the property at the relevant time. There is no fair value notification in the year 2008 and the notification would suggest a value of Rs.2,00,000/- per are in the year 2010, which position continued even in the year 2012, when the judgment was rendered. However, one thing to be noticed even going by the fair value notification is that the value has increased more than double, though not thrice. Therefore, this Court is of the opinion that the interest of justice would be served to both the parties, if he enhancement is limited to twice the value as stated in Ext.A1 agreement, rather than doing it at the rate of 3 times the value. ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [44 x 9] intentionally omitted <==** ``` 11. Coming to the contention of the learned counsel for the appellant as regards default on the part of the respondent/defendant, for which reason, the defendant is not entitled to any enhancement, this Court notice that the reason for the default for non-performance of Ext.A1 agreement within the time stipulated therein is still far to seek. The defendant took his specific contention in her written statement that she is prepared to take this sale deed, dehors the expiry of the time stipulated in Ext.A1 agreement, only because of her impecunious circumstances. The fact that she has chosen to sell the property was because of her pressing necessity for money, is very much pleaded in the written statement. There is also an averment indicating that the sale price was arrived at after effective bargaining. It is in that backdrop that a Court of law is supposed to understand the pleadings of the defendant. Now, the change in ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [44 x 9] intentionally omitted <==** ``` stand was taken by the defendant/respondent only on the basis of the additional pleading that her immediate financial requirement was met otherwise, wherefore, she resiles from her offer to sell the property, despite the expiry of the period stipulated in Ext.A1 agreement. This cannot be construed in law as an unpardonable conduct, so as to fix default on the part of the defendant/respondent. As already indicated, the question as to why the contract was not performed within the stipulated time is not clear even now. It is the plaintiff’s contention that the defendant/seller was not prepared to measure out the property and to sell the same to the plaintiff; whereas it is the defendant’s contention that the plaintiff was not possessed of enough funds to purchase the property. This Court finds that it is futile to take an exercise to find out who is the defaulting party, at this distance of time. The ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [44 x 10] intentionally omitted <==** ``` trial court has granted specific performance. ``` ``` 12.In the evidence stage, the defendant has gone one step further to allege that the sale did not take place since the plaintiff, who had an eye fixed on re-selling the property for a higher price, could not find a purchaser. ``` ``` 13.In the above referred facts and circumstances, even if equities are balanced, this Courtisoftheopinionthatthe defendant/respondent/seller is entitled to a reasonable enhancement in the sale price, which this Court has already fixed at twice the rate stipulated in Ext.A1 agreement. In doing so, this Court essentially relies on the value shown in the fair value notification and also the efflux of time ``` ``` from 2007 to 2024, when this appeal is being considered and disposed of by this Court. The appeal preferred by the appellant and the cross objection by the respondent was pending before this ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [44 x 9] intentionally omitted <==** ``` Court from 2013 onwards. The delay, for sure, cannot be attributed to the respondent/seller. In such circumstances, this RFA No.488/2013 is allowed in part as follows: ``` ``` The suit is decreed: ``` ``` 1) Directing the plaintiff to pay an additional sale consideration of Rs.5,25,000/- more within a period of 4 months from today. ``` ``` 2) Upon reciept of the said amount, thus enhancing the total sale consideration to Rs.10,50,000/-, the defendant is directed to execute sale deed conveying the plaint schedule property to the plaintiff within 3 weeks from the date of receipt of the amount. ``` ``` 3) On the event of the default on the part of the defendant to act as aforesaid, the plaintiff is entitled to get the sale deed registered through the process of the Court, subject to the condition that the plaintiff deposits the additional sale ``` ``` RFA NO. 488 OF 2013 ``` **==> picture [44 x 10] intentionally omitted <==** ``` consideration referred to in clause (1) above before the Court, with notice to the defendant. ``` ``` 4) The parties shall bear the respective costs. ``` ``` In as much as this appeal is allowed in part, the cross objection preferred by the defendant will stand dismissed. ``` ``` Sd/- C. JAYACHANDRAN JUDGE ``` ``` HKH/14.06.2024 ```