T.P. Anil Kumar v. Mullankattill Razak

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY ,THE 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940** **RFA.No. 426 of 2011 H** **AGAINST THE JUDGMENT & DECREE IN OS 34/2008 of SUB COURT, VATAKARA DATED 23-02-2011** ## **APPELLANT:** **T.P.ANIL KUMAR, AGED 49 YEARS, BUSINESS, S/O.KRISHNAN, NAYANAM HOUSE, MAYYANNUR P.O., VIILLIAPPALLY AMSOM AND MAYYANNUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADVS. SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR** ## **RESPONDENT:** **MULLANKATTIL RAZAK, AGED 38 YEARS BUSINESS, S/O.MAMMU HAJI, PUTHUKKODE PARAMBATH HOUSE, KUTTIPRAM AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE, PIN-673 101.** **BY ADVS. SRI.K.K.ANILRAJ SRI.U.K.DEVIDAS** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2018, THE COURT ON 11.03.2019 DELIVERED THE FOLLOWING:** RFA 426/2011 2 ## **JUDGMENT** The defendant in O.S.No.34/2008 on the file of the Sub Court, Vatakara has come up with this appeal challenging the judgment and decree dated 23.2.2011. The sole plaintiff/respondent has filed the suit for specific performance of contract. The said suit was decreed directing the defendant/appellant to execute the sale deed for the plaint schedule properties after receiving the balance sale consideration. 2.The parties are referred to in this judgment as they are ranked in the original suit before the court below. 3. The facts relevant for disposal of this appeal are as follows: The defendant is the owner in possession of 60 cents of land. He acquired the same as per document Nos.919/2004 & 920/2004 of SRO, Nadapuram. On 2.12.2006 he entered into an agreement with the plaintiff RFA 426/2011 3 for sale of the plaint schedule properties. Item No.1 property having an extent of 50 cents is in R.S.Nos.1, 2, 3 and 4 and item No.2 is 10 cents in the very same R.S.Number. Both the properties are lying contiguously as a single plot. The plaintiff's case is that the defendant agreed to sell both the properties for a sale consideration of Rs.33,000/- per cent. On the very same day, he paid an advance amount of Rs.2 lakh to the defendant. The time fixed for execution of the sale deed was upto 30.4.2007. But the defendant did not execute the sale deed and he requested for extension of time as he had gone to Gulf for some time and thereafter due to some personal problem in connection with the missing of his son. So the plaintiff agreed for the same. Thereafter, on 1.5.2007 an amount of Rs.6 lakhs was paid and a further amount of Rs.5 lakhs was paid on 23.11.2007. Thus in total the plaintiff had paid an amount of Rs.13 lakhs out of the total sale consideration of 19,80,000/-. Though the plaintiff was RFA 426/2011 4 always ready and willing to perform his part of the contract, it was not materialized in spite of the notice sent by him. Hence, he was constrained to approach the court below for specific performance of the agreement dated 2.12.2016. 4. The defendant, though admitted the agreement dated 2.12.2016 and receipt of the amount of Rs.2 lakhs as advance on the very same day as well receipt of the subsequent payments of Rs.6 lakhs on 1.5.2007 and Rs.5 lakhs on 23.11.2007, contended that the sale deed was not executed due to the fault on the side of the plaintiff in performing his part of contract. In fact, he was not having sufficient funds with him to pay the balance sale consideration and he has violated the terms and conditions of the agreement . 5. Before the court below, PW1 was examined and Exts.A1 to A5 were marked on the side of the plaintiff and DW1 was examined and Exts.B1 to B4 were marked on the side of the defendant.The court after evaluating the RFA 426/2011 5 evidence decreed the suit in favour of the plaintiff, directing the defendant to execute and register the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.6,80,000/-. Being aggrieved by the said judgment and decree, the defendant has approached this Court with this appeal. 6. Heard Smt.N.Sudha, learned counsel for the appellant and Sri U.K.Devidas, learned counsel appearing for the respondent. 7. Execution of the sale agreement dated 2.12.2006 is not in dispute. It is also admitted by the defendant that he received Rs.13 lakhs in total as part of sale consideration fixed for the plaint schedule properties from the plaintiff. But his case is that sale deed was not executed as there was failure on the side of the plaintiff in performing his part of the contract and in fact he sustained a loss of Rs.3 lakhs and hence he tendered the balance amount of Rs.10 lakhs after adjusting the loss sustained by him. RFA 426/2011 6 8. As mentioned above, the sale consideration was fixed at the rate of Rs.33,000/- per cent. The extent of the property was only 60 cents and the total consideration was Rs.19,80,000/- After adjusting the total amount of Rs.13,00,000/- the balance to be paid was Rs.6,80,000/-. So the major portion of the sale consideration had already been paid by the plaintiff to the defendant and there is no dispute with regard to the same. According to the defendant the plaintiff was not ready with the balance sale consideration by 30.4.2007, the time fixed for execution of the document so he did not execute the sale deed. But such a contention has no relevance mainly for the reason that the amount of Rs.6 lakhs paid as part of the sale consideration was accepted by the defendant on 11.5.2007 beyond the period stipulated in the agreement. Thereafter, also on 23.11.2007 the amount of Rs.5 lakhs was received by him. Hence, the contention of the defendant is without merits. RFA 426/2011 7 9. It is well settled that in order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. The plaintiff as PW1 deposed that he was always ready and willing to perform his part of the contract and he had money with him to pay the balance sale consideration of Rs.6,80,000/-. His further case is that though the defendant had to measure out the property and convince him with regard to the extent of the property, the property was not measured by him as agreed by the terms of the contract. But the defendant, on the other hand, had contended that the property was measured in the presence of one Ashraf, a friend of the plaintiff and convinced with regard to the extent of the property. But such a contention has not been raised in the written statement, though it is mistakenly stated so in the judgment. So, no reliable evidence was adduced by the RFA 426/2011 8 defendant to substantiate the fact that the measurement was effected by him in the presence of the plaintiff or his agent/friend so as to convince with respect to the total extent of property as 60 cents as agreed in Ext.A1 agreement. 10. As mentioned above, the plaintiff has submitted that he was always ready and willing to perform his part of the contract and he had money with him to pay the balance sale consideration of Rs.6,80,000/-. As rightly pointed out by the learned counsel for the plaintiff it is not necessary to produce documents to show that he is having sufficient funds with him to pay the balance sale consideration. What he has to prove is that he is having the capacity to raise funds to pay the balance sale consideration. It has been held by a Division Bench of this court in **Vinodan v. Sunil Kumar & Others [2015(2)KLT 579** that in a suit for specific performance, the plaintiff must aver and prove that he has performed or has been ready and willing to perform RFA 426/2011 9 ## the essential terms of the contract. In paragraph 20, it has been observed as follows: '' 20.Going by clause (c) of section 16 of the Specific Relief Act, 1963, specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation (i) to section 16 of the Act provides that, for the purpose of clause (c), where the contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. Explanation (ii) to section 16 provides that, for the purpose of clause (c), the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Section 16 of the Act deals with ground of defence based on the conduct of the plaintiff. Clause (c) of section 16 clarifies that such an averment is necessary, while the explanation states what amounts to an averment of readiness and willingness to perform the contract. Clause (c) of section 16 of the Act therefore provides that in a suit filed for seeking specific performance of the contract, the plaintiff must aver and prove that he has performed RFA 426/2011 10 or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The words, 'ready and willing' imply that, the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The distinction between 'readiness' and 'willingness' is that, the former has a reference to financial capacity and the latter on the conduct of the plaintiff wanting specific performance. If the plaintiff did not make any specific averment to that effect in the plaint, it would amount to noncompliance of the mandatory requirement of clause (c) of section 16 of the Act. In the absence of such averments, the suit is not maintainable. Before a decree for specific performance can be given, the plaintiff must prove his readiness and willingness to perform his part. The language of section 16 of the Act being prohibitory, it is not the duty of the court to grant specific performance, unless the plaintiff has averred and proved his readiness and willingness to perform his part of the contract''. 11. In the present case it could be gathered from the evidence adduced by the plaintiff that he was having the financial capacity or ability to raise the funds for paying the balance sale consideration and he was ready to pay the same to the defendant and that was specifically averred and RFA 426/2011 11 proved before the court. He placed reliance on the purchase effected by him for a plot of 3.49 Ares at Nadapuram in the year 2008 and another plot of 4.56 Ares at Nadapuram itself during relevant period to establish the fact that he was having financial capacity to raise funds for adjusting the balance consideration. Of- course, he did not placed on record his account books or such other documents to establish that he had the money with him at the relevant time to pay the balance sale consideration to perform his part of the contract. It is significant to note that in **Azhar Sultana v. Rajamani [2009(2)KLT SN 3(C.No.4)SC,** the Supreme Court has held that **“** it was not necessary that the entire amount of consideration should be kept ready and the plaintiff must file proof in respect thereof.” In short, his capacity to pay the balance sale consideration at the relevant point of time stands established by the evidence adduced by the plaintiff and no contra evidence was available. RFA 426/2011 12 ## 12. In **N.P.Thirugnanam v. Dr.R.Jagan Mohan Rao** **[(1995)5 SCC 115]** it was held by the Apex Court that the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. In paragraph 5 it was held as follows: “5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c)of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to RFA 426/2011 13 grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.” RFA 426/2011 14 13. The defendant, as DW1 had deposed before the court that he was abroad for about 35 days and his son was missing for some time and therefore he placed a request before the plaintiff for some more time for execution of the agreement. It is abundantly clear that the defendant had some personal problem in connection with the missing of his son during the relevant period. DW1 has also fairly admitted before the court that he has not taken any steps to get the encumbrance certificate, tax clearance certificate etc. to enable the plaintiff to get the sale deed executed in his favour. It has come out in evidence that part payments of Rs.6 lakhs was effected on 10.5.2007 and Rs.5 lakhs on 23.11.2007. So it is clear that time was not considered as the essence of the contract and that was the reason for accepting part payments of the sale consideration after the time fixed for execution of the sale deed. The contention of the defendant that sale agreement was cancelled in the year 2008 also could not be accepted RFA 426/2011 15 for a moment for the reasons stated above. It has also come out in evidence that pursuant to agreement he has neither taken the encumbrance certificate pertaining to the property nor handed over it with the connected documents so as to enable the plaintiff to draft the sale deed. So that would also project as a default on the side of the defendant in performing his part of the contract. 14. It is also pertinent to note that when DW1 was in the box, he made an attempt to appear that the plaintiff had taken initiative to alienate the property to somebody else, but he admitted that he had not raised such a contention in the written statement filed by him. On an evaluation of the entire evidence adduced by the parties, it could be seen that the plaintiff was always ready and willing to perform his part of the contract and there was no circumstance to infer that the sale deed was not executed or the contract was not materialized due to the fault on the side of the plaintiff. RFA 426/2011 16 15. The relief for specific performance is purely discretionary. In **Surya Narain Upadhyaya** v **Ram Roop Pandey and others** (1995 Supp (4) SCC 542) the Apex court while dealing with Section 20 of the Specific Relief Act held as follows : “4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in S.20 of the Act.........'' . 16. In the present case plaintiff with the intention to purchase the property so as to construct a residential building for his residence had entered into the contract. There is absolutely no evidence to substantiate the contention raised by the defendant that he is a real estate dealer and his intention was to sell the property for more RFA 426/2011 17 sale consideration to amass money. Considering all these facts, I do not think that the court below has not evaluated the evidence in the correct perspective so as to warrant an interference in this appeal. It is also to be noted that the defendant could not adduce any reliable evidence to show that he had sustained a loss of Rs. 3 lakhs as claimed by him so as to adjust it towards the sale consideration. 17. For the aforesaid reasons, I do not find any justifiable or reasonable ground for interference with the judgment and decree under challenge. Accordingly, while affirming the judgment and decree, I dismiss this appeal leaving the parties to bear their own costs. **Sd/-** **SHIRCY V.** **JUDGE** ks