Thomas and Jissy v. K.V. Thilakan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 RFA NO. 5 OF 2011 (H)** **AGAINST THE DECREE AND JUDGMENT DATED 30.06.2010 IN OS NO.368 OF 2007 OF I ADDITIONAL SUB COURT, THRISSUR** **-----** ## **APPELLANTS/DEFENDANTS:** - **1 THOMAS,** **S/O KIDANGAN PARANCHAPPAN,P.O.ARIMPUR, THRISSUR 680 620 (WHOSE ADDRESS IS SHOWN AS THOMAS, S/O.KIDANGAN PARACHAPPAN, VELUTHOOR DESOM AND VILLAGE, THRISSUR TALUK IN THE TRIAL COURT JUDGMENT)** - **2 JISSY, W/O.KIDANGAN THOMAS,** **P.O.ARIMPUR, THRISSUR 680 620 (WHOSE ADDRESS IS SHOWN AS JISSY, W/O.KIDANGAN THOMAS, VELUTHOOR DESOM AND VILLAGE, THRISSUR TALUK, IN THE TRIAL COURT JUDGMENT).** **BY ADVS. SRI.PHILIP T.VARGHESE** **SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T. VARGHESE** ## **RESPONDENT/PLAINTIFF:** **K.V.THILAKAN,** **S/O KOOTTALA VIJAYAN,KOKKALAI, VELIYANNOOR DESOM, THRISSUR DISTRICT, THRISSUR TALUK. PIN 686638.** **RFA NO. 5 OF 2011 -2-** **BY ADVS. SRI.N.AJITH SMT.GEETHA P.MENON SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR SRI.P.B.SUBRAMANYAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.5 of 2011** **= = = = = = = = = = = = = = = = = = Dated this the 7[th] day of March, 2024** ## **J U D G M E N T** The decree for specific performance of an agreement for sale is under challenge by the defendants. 2. The plaintiff and the defendants entered into Ext.A1 agreement dated 09.12.2006 whereunder an extent of 9.25 cents with a residential building thereon belonging to the defendants was agreed to be conveyed to the plaintiff. The total sale consideration payable was ₹ 16 lakhs. On the date of agreement an amount of ₹ 2 lakhs was paid towards advance sale consideration. The period fixed for performance was up to 31.03.2007. Though the plaintiff issued Ext.A2 notice dated 07.03.2007 seeking performance of the contract, the notice was returned unserved. It is thereupon that the suit was filed seeking specific performance. RFA No.5 of 2011 -: 2 :- 3. The defendant challenged the readiness and willingness of the plaintiff. The plaintiff did not possess the balance sale consideration and he was responsible for the non-performance of the agreement, it was contended. 4. The trial court held that the readiness and willingness of the plaintiff was proved, and exercised discretion to grant a decree for specific performance. 5. Heard learned counsel on either side. 6. The points that arise for determination are :- _(i) Is the finding of the trial court with regard to the readiness and willingness of the plaintiff, based on evidence ?_ _(ii) Is the contention of the defendants that the breach of the agreement occurred at the hands of the plaintiff, supported by materials ?_ _(iii) Does the exercise of discretion by the trial court to grant a decree for specific performance warrant interference?_ RFA No.5 of 2011 -: 3 :- 7. The execution of Ext.A1 agreement, and that it was truly intended as an agreement for sale, is not in dispute. The challenge of the defendants is on the readiness and willingness of the plaintiff. They allege that the plaintiff did not possess balance sale consideration and that he was responsible for the breach. 8. Ext.A1 agreement is dated 09.12.2006. The period fixed for performance expired on 31.03.2007. Much prior to the expiry, on 07.03.2007 the plaintiff issued Ext.A2 notice seeking performance of the agreement. The notice was returned unserved with the endorsement “not known”. A perusal of the address given in Ext.A2 shows that it was issued in the very same address as given in Ext.A1. The suit has been filed with the very same address and summons was served on the defendants in that address. Therefore, the plaintiff cannot be faulted with the nonservice of Ext.A2 notice. As noticed above, Ext.A2 RFA No.5 of 2011 -: 4 :- notice was issued well within the period fixed for performance. The period fixed for performance expired on 31.03.2007 and the suit has been filed on 09.04.2007 i.e. immediately, within ten days of expiry of the period fixed for performance. That indicates the readiness and willingness of the plaintiff. If according to the defendant he was ready and willing to perform the agreement and that the breach occurred at the hands of the plaintiff, he could have appeared in the suit on summons and submitted before the court his willingness to perform the agreement. That would have proved the hollowness of the plaintiff's claim. Such a course was not resorted to. 9. Though the defendants challenged the financial capacity of the plaintiff, in order to prove that he was possessed of sufficient funds to pay the balance sale consideration, the plaintiff has produced Ext.A6 Bank pass book. Ext.A6 shows that an amount of ₹ 14 lakhs, RFA No.5 of 2011 -: 5 :- which is the balance consideration payable, was available with him well within the period fixed for performance. According to the plaintiff, 4 cents of property belonging to him at Thrissur was sold by him and the said amount was available with him. Ext.A9 is a copy of the said Sale Deed dated 26.02.2007. Thus the plaintiff has proved his readiness and willingness to perform the agreement. The allegation of the defendant that the plaintiff was responsible for the breach, has no substance. Points 1 and 2 are answered accordingly. 10. The learned counsel for the appellants would contend that, there has been steep escalation in prices rendering specific performance inequitable. The agreement was executed in the year 2006 and a decree for specific performance after a period of 25 years would put the defendants to great prejudice and hardship, it is urged. The learned counsel relied on various decisions of the Apex Court and this Court reported in RFA No.5 of 2011 -: 6 :- _**Jayakantham v. Abaykumar (2017) 5 SCC 178**_ , _**Nirmala Anand v. Advent Corporation (P) Ltd. and Ors. 2002 8 SCC 146**_ , _**K. Prakash v. B.R.Sampath Kumar (2015) 1 SCC 597**_ , _**Ahammed Koya K.M. v. Moorkoth Sujitha 2019 (2) KHC 620, Kochammu and Ors v. Kumaran and Ors 2017 (4) KLJ 341**_ to contend that escalation in prices is a factor to be taken note of, to consider whether a decree for specific performance is to be granted or not. Here it is to be noticed that, there is no dispute that Ext.A1 agreement was really intended as a sale agreement and that the defendant intended to convey the property. The period fixed was approximately three months. Well within the period, the plaintiff demanded performance. Within ten days of the expiry of the period, the plaintiff approached the court. Therefore, the plaintiff has acted diligently, and there has been absolutely no laches on his part. The trial court granted a decree for specific performance. The mere fact that delay occurred in disposing the appeal RFA No.5 of 2011 **==> picture [34 x 9] intentionally omitted <==** and there occurred rise in prices during the period shall not be pitted against him as a ground to decline specific performance. 11. Out of the total consideration of ₹ 16 lakhs, an amount of ₹ 2 lakhs was paid towards the advance sale consideration. The balance consideration payable is ₹ 14 lakhs. Having due regard to the fact that the relief for specific performance is one grounded on equity, considering the lapse of time it is deemed equitable that the plaintiff pays the balance sale consideration with interest at the rate of 12% per annum from the date of suit. This would mitigate the grievance regarding rise in prices also. Resultantly, the appeal is allowed in part. The decree and judgment of the trial court will stand modified directing the plaintiff to deposit the balance sale consideration with interest at the rate of 12% per annum from the date of suit till date of deposit. The RFA No.5 of 2011 -: 8 :- balance consideration with interest as above shall be payable within two months from today. In all other respects, the decree and judgment of the trial court will stand affirmed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge