Thayyil Chandrasekharan v Athikkotu Prasad and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** **RSA.No.98 OF 2013** **AGAINST THE ORDER/JUDGMENT IN AS 155/2010 DATED 09-08-2012 OF IIIrd ADDITIONAL DISTRICT COURT, KOZHIKODE** **AGAINST THE ORDER/JUDGMENT IN OS 279/2008 DATED 20-08-2010 OF II ADDITIONAL SUB COURT,KOZHIKODE** ## **APPELLANT/S:** **THAYYIL CHANDRASEKHARAN, AGED 74 S/O.THAYYIL AYYAPPAN, PUTTEKAD, FEROKE POST, KOZHIKODE THALUK.** **BY ADVS.** **SRI.A.SUDHI VASUDEVAN (SR.) SRI.JOSE JONES JOSEPH SMT.K.PUSHPAVATHI** ## **RESPONDENT/S:** - **1 ATHIKKOTU PRASAD, AGED 59 S/O.LATE ATHIKKOTU MADHAVAN, BANK MANAGER, FEROKE AMSOM, NALLUR DESOM, KOZHIKODE THALUK.673 631** - **2 ATHIKOTTU VISWANATHAN, AGED 59 BUSINESS, KOVILAKAM ROAD, FEROKE AMSOM, NALLUR DESOM, KOZHIKODE THALUK.673 631** - **3 KOMMADATHU SOBHANA, AGED 67 FEROKE AMSOM, NALLUR DESOM, KOZHIKODE THALUK.673 631** - **4 THAZE PUTHIYOTTIL GEETHA, AGED 56 FEROKE AMSOM, NALLUR DESOM, KOZHIKODE THALUK.673 631** - **5 UPPATH THARA PARAMBATH ANITHA, AGED 44 FEROKE AMSOM, NALLUR DESOM, KOZHIKODE THALUK.673 631 BY ADV. SRI.K.A.SALIL NARAYANAN** - **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON** - **23.7.2019, THE COURT ON 13.08.2019 DELIVERED THE FOLLOWING:** 2 RSA.No.98 OF 2013 ## **JUDGMENT** The suit of the appellant for specific performance of Ext A1 agreement for sale of the plaint schedule property was dismissed by the trial court. His appeal was dismissed by the learned additional district judge. Hence the second appeal is filed. 2. The appellant was the tenant of the building which stood in the plaint schedule property. The said building collapsed. The landlord was one Madhavan. He died. His wife Sarojini and eight children including the respondents inherited the plaint schedule property. The appellant entered into Ext A1 agreement with Sarojini to purchase the suit property. Rs 5,000/- was paid to the latter by the former before the execution of Ext A1 towards sale consideration in advance. Rs 50,000/- was to be paid by the appellant within three months and the balance within six months from the date of execution of Ext A1. Madhavan had encumbered the suit property to the State Bank of Travancore for availing of a loan of Rs 20,000/-. His son Subramanian's undivided interest in the suit property was under attachment in a suit filed against Subramanian. Sarojini had to discharge the liability Madhavan owed to the bank and to free the property from the encumbrance within six months from the date of execution of Ext A1. It was also undertaken by Sarojini that within the said six months she would get the attachment referred to above terminated. The sale did not take place. These facts are admitted 3 RSA.No.98 OF 2013 facts. 3. The case of the appellant is stated below: The price of the property agreed between the parties to the contract was Rs 1,35,000/-. But it was shown as Rs 1,85,000/- in Ext A1 in order to convince the other tenants of Sarojini. After the initial payment of Rs 5,000/-, the appellant paid Rs 60,000/- to Sarojini. She committed breach of the contract. She did not free the property from encumbrance as she failed to discharge the liability to the bank. She did not get the attachment on the fractional interest of Subramanian lifted. Sarojini did not obtain the consent of the respondents to execute the sale deed. The first respondent should execute the sale deed since the plaint schedule property was allotted to his share in partition of his family properties. 4. The respondents had the following contentions: The price of the property fixed under the contract was Rs 1,85,000/- and not Rs 1,35,000/-. After the initial payment of Rs 5,000/-, the appellant did not pay Rs 60,000/-. He paid Rs 25,000/- by a cheque and Rs 20,000/by another cheque. All encumbrances on the property were terminated and the appellant was informed. The sale did not take place since the appellant could not raise funds for payment of the balance sale consideration of Rs 1,35,000/-. He therefore withdrew from the contract and received back Rs 50,000/- from Sarojini. The suit is barred by the law of limitation. 5. Both sides adduced evidence. PW1 and DW1 were 4 RSA.No.98 OF 2013 examined. Exts A1 to A11 and B1 to B13 were marked besides Exts C1 and C1(a). 6. Heard Sri.A Sudhi Vasudevan, the learned senior counsel appearing for the appellant. 7. Ext A1 is the photocopy of the agreement entered into and executed by the appellant and Sarojini. It states that the original agreement shall be kept by Sarojini and the photocopy of it by the appellant. The said photocopy was produced by the appellant and it was marked as Ext A1 without any objection. The respondents in their written-statement stated that the original agreement was destroyed by Sarojini. Therefore Ext A1 is admissible in evidence as secondary evidence. 8. The relief of specific performance of contract was denied to the appellant by the courts below on two grounds. One, his suit was barred by the law of limitation. Two, he committed breach of the contract. 9. Entry no.54 of the schedule to the Limitation Act prescribes the period of limitation for a suit for specific performance of a contract. The period of limitation is three years. The period begins to run from the date fixed for the performance of the contract, or, if no such date is fixed, when the plaintiff has notice that performance is refused. The question is whether the first part or the second part of column no.3 of the schedule against entry no.54 applies. 10. The courts below concurrently held that the first part would 5 RSA.No.98 OF 2013 apply. In order to hold so, it was stated that it was agreed in Ext A1 that the sale deed should be executed within six months from the date of Ext A1. I am given a copy of Ext A1 to read. I read it. I am afraid, the findings of the courts below are not supportable. 11. Ext A1 recites the initial payment of Rs 5,000/- by the appellant to Sarojini. It recites that Rs 50,000/- shall be paid within the next three months and that the balance Rs 1,30,000/- shall be paid within six months. It shall be counted from the date of execution of the agreement. It recites also as to what Sarojini should do within the said six months period. She had the obligation to free the property from the encumbrance created in favour of the State Bank of Travancore. She had to get the attachment on the fractional interest of Subramanian terminated. No date is fixed in Ext A1 as the date on which the contract was to be performed and the sale deed was to be executed. The period of six months made mention of in Ext A1 was the breathing time given to the parties to the contract to perform their respective contractual obligations. Therefore the first part of entry no.54 was not applicable to the facts of the present suit. What was applicable was the second part of entry no.54. Therefore the suit was to be filed within three years when the appellant had notice that the performance of the contract was refused by Sarojini. 12. The learned senior counsel submitted that the appellant had notice that the performance of the contract was refused only on receipt of Ext A11 reply notice dated 1.3.2008. The submission is not 6 RSA.No.98 OF 2013 acceptable. While discussing the evidence in the suit, the learned trial judge stated that Sarojini filed OS 251/2006 for injunction to restrain the appellant from reconstructing the tenanted building which collapsed on 17.10.2005. The learned trial judge stated further that an order of temporary injunction was issued against the appellant restraining him from constructing any building in the plaint schedule property. The appellant was expected to know when he received the copy of the plaint in OS 251/2006 and received the order of temporary injunction that the performance of the contract was refused by Sarojini. The appellant therefore had notice in 2006 that the performance of the contract was refused by the other side of the contract. The said suit was filed in 2006 and the present suit came in 2008 within three years counted from the date on which the appellant had notice that the performance of the contract was refused. The suit for specific performance came well within the period of limitation. It was not barred by the law of limitation. The contrary finding of the courts below is incorrect. 13. As already stated, there were contractual obligations on either side of the contract to perform within six months from the date of execution of Ext A1. The appellant who was to pay Rs 50,000/within three months was to pay the balance sale consideration of Rs 1,30,000/- within six months. Sarojini was to do the needful within six months to get the encumbrance on the property and the attachment on the fractional interest of Subramanian terminated. Admittedly the 7 RSA.No.98 OF 2013 appellant did not pay the balance sale consideration within six months. The trial court found that there was no evidence in support of the contention of the respondents that Sarojini performed her aforesaid contractual obligations within six months. What should be the result of the suit in such circumstances is an important question. 14. The learned senior counsel submitted that Ext A1 was a contingent contract. A contingent contract is a contract to do or not to do something if some event collateral to such contract does or does not happen (vide Sec.31 of the Indian Contract Act). The learned senior counsel calls Ext A1 a contingent contract contending that the appellant had the obligation to pay the balance sale consideration within six months only if Sarojini performed her contractual obligations within the said six months. The submission of the learned counsel gets no support from Ext A1. Going by its terms, the appellant should pay the balance sale consideration of Rs 1,30,000/- within six months and Sarojini should get the encumbrance and attachment on the property terminated within the said six months. Ext A1 does not contain a stipulation that the appellant should pay Rs 1,30,000/- only if Sarojini performs her contractual obligations. The terms of Ext A1 are clear and unambiguous that the contractual obligations of either parties should be performed within six months. There is nothing in Ext A1 to suggest that one party should perform his/her contractual obligations only if the other party performs his/her obligations. Ext A1 is not a contingent contract at all. It should be held that if neither party to Ext A1 8 RSA.No.98 OF 2013 performed the contractual obligations, both are guilty of breach of the contract. 15. The appellant can take advantage of the breach of contract on the part of Sarojini only if the appellant did not commit breach of the contract. Admittedly he did not pay the balance sale consideration. He even disputed in the plaint the price of the property agreed to by the parties to the contract. The appellant stated that the price agreed was only Rs 1,35,000/-, but Rs 1,85,000/- was shown in Ext A1 as wanted by Sarojini to convince the other tenants of hers. It is not disclosed why should Sarojini convince the price of the property to her other tenants. The appellant while giving evidence as PW1 spoke that Sarojini was alive nearly ten years after the execution of Ext A1, but he (PW1) did not approach her (Sarojini) ever to get the sale deed executed. The appellant had to pay Rs 50,000/- within three months from the date of execution of Ext A1. He contended that he paid Rs 60,000/- within the said period. But he did not produce any documentary evidence to prove payment of Rs 60,000/-. The respondents contended that only Rs 45,000/- was paid within three months by two cheques. The first respondent endorsed on the back of Ext A1 acknowledging receipt of Rs 25,000/- and Rs 20,000/- by two cheques. When even payments made by cheques are endorsed on Ext A1, it is improbable that any payment was made without taking a receipt or without getting a similar endorsement on the back of Ext A1. The learned trial judge considered the inconsistency in the pleadings 9 RSA.No.98 OF 2013 and evidence of the appellant regarding the payment of Rs 10,000/within three months. The learned sub-judge stated that what the appellant pleaded in the plaint was payment of Rs 5,000/- to the first respondent and Rs 5,000/- to another son of Sarojini by name Viswanathan. But PW1 spoke that he paid Rs 10,000/- to Sarojini on different dates. As stated by the learned sub-judge, the appellant had no consistency regarding the payment of Rs 10,000/-. The evidence suggests only the payment of Rs 45,000/- by two cheques. The payment to be made by the appellant within three months from the date of execution of Ext A1 was short by Rs 5,000/-. It was at that point of time the appellant committed breach of the contract. He is not entitled to a decree for specific performance. 16. The appellant had a snail's pace in approaching the court for the relief of specific performance. The learned trial judge referred to the evidence of PW1 that PW1 realised within six months after the execution of Ext A1 that Sarojini was unable to clear the liabilities she undertook to discharge. The appellant should have filed the suit seeking the relief of specific performance within a reasonable time thereafter. There was no justification for him to take 12 years to file the suit; although the suit was not barred by the law of limitation and the time was not of the essence of the contract. As already stated, he was aware when he received summons and the copy of the plaint in OS 251/2006 that the performance of the contract was refused by Sarojini. But, only two years thereafter the appellant issued Ext A10 10 RSA.No.98 OF 2013 notice wanting execution of the sale deed and he filed the suit for specific performance. In this connection it is apposite to refer to **Vidyanadam vs Vairavan (AIR 1997 SC 1751)** . The appellant was not entitled to take his sweet time to sue for specific performance which was a discretionary relief when he filed and prosecuted his suit and first appeal. 17. True, Sarojini had undertaken in Ext A1 to get the consent of the respondents to execute the sale deed. But the question of getting the signatures of the respondents in the sale deed would arise only if the entire sale consideration was paid. PW1 himself admitted that the respondents should execute a sale deed only if the balance sale consideration was paid. Nothing more is to be stated to reject the contention of the appellant that Sarojini committed breach of contract for her failure to get the consent of the respondents to execute a sale deed. 18. The total amount received by Sarojini from the appellant was Rs 50,000/-. The former received Rs 5,000/- before execution of Ext A1 and Rs 45,000/- by two cheques. The courts below did not accept the contention of the respondents that the amount was repaid by Sarojini. The trial court referred to the evidence of PW1 that he did not claim return of the said amount since he had to pay arrears of rent. Whatever it be, the appellant did not seek an alternative relief for refund of the amount paid under the contract. No decree directing refund of the amount of Rs 50,000/- could be granted since not 11 RSA.No.98 OF 2013 specifically asked for (vide Sec.22 (2) of the Specific Relief Act). 19. The learned senior counsel referred to Sec.53A of the Transfer of Property Act. Sec.53A can have no application in a suit for specific performance which the plaintiff should lose on account of the breach of contract at his end and on other grounds. 20. The suit was not barred by the law of limitation. But the courts below found otherwise on account of misreading and misinterpretation of Ext A1. Still the second appeal cannot be admitted as the appellant has no case on merits. No substantial question of law is involved on the merits of the case. Hence the second appeal is liable to be dismissed. ## 21. Dismissed. **SD/-** **A.M.BABU** SKS/2.8.2019 **JUDGE**