Unnikrishna Pillai v. Gopalakrishnan Pillai and Valsala Kumari

R.F.A. No. 436 of 2009 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** **RFA.No.436 OF 2009** **AGAINST THE JUDGMENT AND DECREE IN OS 73/2006 DATED 13-02-2009 OF PRINCIPAL SUB COURT,KOLLAM** ## **APPELLANT/PLAINTIFF:** **UNNIKRISHNA PILLAI AGED 39 YEARS, S/O.ACHUTHAN PILLAI, KANJIKKAL VEEDU, PERUMATHURA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK.** **BY ADVS. SRI.SHABU SREEDHARAN SRI.N.A.JOHN JACOB SRI.C.K.PRASAD** ## **RESPONDENTS/DEFENDANTS:** **1 GOPALAKRISHNA PILLAI, S/O.KUTTAPPA PANICKER, KRISHNA BHAVANAM VEETTIL, VARAVILA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK. 2 VALSALA KUMARI D/O.CHELLAMMA, KRISHNA BHAVANAM VEETTIL, VARAVILA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK.** ## **R1 BY ADV. SRI.B.MOHANLAL** ## **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON** **24-10-2019, THE COURT ON 26-11-2019 DELIVERED THE FOLLOWING:** R.F.A. No. 436 of 2009 2 ## **CR** ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 436 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of November, 2019 ## **JUDGMENT** This appeal is against the judgment and decree dated 03.02.2009 of Principal Sub Court, Kollam in O.S No.73 of 2006. A suit for specific performance of agreement for sale executed among the plaintiff and defendants on 11.12.2004 was filed by the plaintiff against defendants. The case of the plaintiff was that as per the agreement for sale executed among himself and the defendants, 33½ cents of property comprised in Re-Sy.No.703/9 and 703/14-1 of Clappana village obtained by the defendants jointly by virtue of sale deed Nos.3748/94, 3749/04 and 3470/98 have been agreed to be sold to the plaintiff for a total sale consideration of Rs.5¼ lakhs. Rs.1,50,000/- was paid by the plaintiff to the defendants as advance sale consideration on 11.12.2004 itself. Time limit of six months from the date of agreement was fixed for executing the sale deed. Though the plaintiff was ready and willing to pay the balance sale consideration within 6 months itself, in view of the request of the R.F.A. No. 436 of 2009 3 defendants for extended time, his part could not be performed. According to the plaintiff though the defendants were requested to appear before the Sub Registry, Oachira alongwith the relevant documents pertaining to title of the property proposed to be sold, the execution of the sale deed could not be accomplished for his failure to attend there. The plaintiff came to know that the defendants are taking hasty steps to sell the properties to strangers in violation of the agreement for sale executed by them. The suit in question was filed seeking for a direction to the defendants to execute the sale deed in favour of the plaintiff after receiving the balance sale consideration. An order of injunction was also sought for restraining the defendants from alienating the plaint schedule property or from committing any wastes and mischiefs therein. 2. The defendants entered appearance in the suit and in the joint written statement filed, have contended that they are ready and willing to perform the part assigned to them by the terms of the agreement for sale and are ready and willing to execute the sale deed in favour of the plaintiff. Despite approaching the plaintiff several times and expressing their willingness to execute the sale deed on or before 10.06.2005, the plaintiff has failed to pay the balance sale consideration and in that context, the advance sale consideration paid by him was forfeited as per the terms of the R.F.A. No. 436 of 2009 4 agreement for sale. The documents pertaining to the properties proposed to be sold were handed over to the plaintiff at the time of execution of the agreement itself. On 10.06.2005, the date of expiry of six months' period provided in the agreement for sale, though the defendants were personally present before the Sub Registry Office, Oachira and waited there till 5 pm with a view to execute the sale deed, despite any information transpired to him, the plaintiff did not turn up to perform his part and therefore the execution of the sale deed failed. Though mediators intervened with a request for grant of further time and time was extended for two days, the execution of sale deed was not materialised. On 13.06.2005, the defendants made themselves available personally before Sub Registry Office, Oachira and remained there till 5 p.m, but the plaintiff willfully evaded to present there personally to execute the sale deed. The original title deed and other documents related to the property proposed to be sold to the plaintiff were also handed over by the defendants. It was also stipulated in the agreement for sale that if execution of sale deed was not accomplished within the time granted, the amount given as advance sale consideration to the defendants will be forfeited. Therefore, knowingly that the failure of the plaintiff to perform his part of the contract would result in forfeiture of the amount paid as advance R.F.A. No. 436 of 2009 5 sale consideration, the plaintiff entered into the agreement. According to the defendants absolutely no cause of action is there for the plaintiff to get any of the reliefs sought for in the suit. Accordingly, the suit was sought to be dismissed. 3. The trial court had framed the following issues for determination : - “1) Whether the plaintiff is entitled to get a decree of specific performance of the agreement dtd: - 12-12-04? - 2) Whether the plaintiff is entitled to get a decree of perpetual injunction as prayed for? - 3) Reliefs and costs?” 4. The plaintiff has adduced oral evidence of PWs 1 to 4 and documentary evidence as Exts.A1 and A2. The defendants have adduced oral evidence of DWs 1 to 4 and documentary evidence as Exts.B1 to B17. The trial court has answered all the issues against the plaintiff and dismissed the suit. The aggrieved plaintiff is before this Court now challenging the judgment and decree. 5. The contention of Sri.Shabu Sreedharan, the learned counsel for the appellant was that in the agreement for sale time for execution of sale deed was fixed as six months from the date of the agreement. According to him, in that context, the sale deed must have to be executed on or before 10.06.2005. Admittedly, Rs.1,50,000/- was paid by the plaintiff to the defendants as advance R.F.A. No. 436 of 2009 6 sale consideration at the time when the agreement for sale was entered on 11.12.2004. 6. The learned counsel has contended on the basis of recitals in the agreement for sale that defendants have to convince the plaintiff that their title to the property proposed to be sold was perfect and valid in all respects. For the purpose, the defendants are required to hand over the title deeds and documents relevant to establish perfection of their title. According to him, only when the documents pertaining to the property proposed to be sold were handed over to the plaintiff to make him convince about perfection of title and lack of encumbrances on it that the plaintiff is required to pay the balance sale consideration to the defendants and cause the sale deed executed in his favour. According to the learned counsel, though the defendants have pleaded in the written statement and stated while one among them being examined as DW1 that the title deeds and other relevant documents pertaining to the property proposed to be sold were given to the plaintiff on 11.12.2004, the date of execution of the agreement for sale itself, it has come out from the oral evidence of PW4, that the documents were in the custody of Service Co-operative Bank, Clappana. PW4 is none other than the Secretary of the above bank and submitted on the basis of Exts.X1 and X1(a), documents pertaining to the loan R.F.A. No. 436 of 2009 7 availed from the Bank by the defendants that an equitable mortgage of the properties in question has been created by him in favour of the Bank. PW4 was examined on 26.08.2008. According to PW4 even as on that date, the release deed has not been obtained by the defendants from the bank. According to PW4, the loan firstly availed by the 1[st] defendant by deposit of title deeds relating to the property was on 15.04.1994. It was closed on 16.03.2006 and the title deeds were received back on 05.11.2006. She has reiterated that the original document relating to the property was in the custody of the bank from 11.12.2004 till 05.11.2006. Therefore, the factum established from the evidence of PW4 was that the document pertaining to the title of some of the properties proposed to be sold were deposited with the bank as on date of execution of agreement for sale itself and was in the custody of the bank from 11.12.2004 till 05.11.2006. Therefore, the version of defendants that they had given the title deed and other documents to the plaintiff to establish perfection of title on the date of execution of agreement for sale itself is unbelievable. It is stipulated in the agreement for sale that only when the defendants have produced the relevant documents pertaining to the property proposed to be sold, the plaintiff shall cause to pay the balance sale consideration to get the sale deed executed in his favour. Therefore the R.F.A. No. 436 of 2009 8 contention of the learned counsel was that the documents pertaining to the properties sought to be sold being in the custody of the bank and not with the defendants at the relevant time, they are the breakers of the contract. According to the learned counsel, the plaintiff was ready and willing to pay the balance sale consideration and get the sale deed executed in his favour, but due to failure of the defendants to convince about his valid and perfect title of the property at the relevant time, his part of the contract could not be performed by him. According to the learned counsel the trial court failed to appreciate the evidence adduced by the plaintiff in its proper perspective and in view of that wrong perception of evidence, the judgment and the decree under challenge were rendered. According to him interference of the judgment is warranted in the circumstances. 7. Per contra, Sri..B.Mohanlal, the learned counsel for the defendants urged that the trial court cannot be found fault with for the manner in which it appreciated the evidence and answered the issues against the plaintiff. According to him the factum that the title deeds of the properties have been deposited with the bank by the defendants while availing loan was known to the plaintiff and it was the plaintiff who has defaulted to pay the balance sale consideration within the time stipulated in the agreement. R.F.A. No. 436 of 2009 9 According to him, for failure of the plaintiff to pay the balance sale consideration within the time stipulated in the agreement for sale, the suit was dismissed by the trial court. It is canvassed by the learned counsel that interference with the impugned judgment is totally uncalled for. 8. In the context of the rival contentions advanced as above, it is apposite to extract Clause (c) of Section 16 of the Specific Relief Act, 1963 (for short 'the Act') hereunder. ## “ **16. Personal bars to relief** Specific performance of a contract cannot be enforced in favour of a person- (a) xxxxxxxxxx (b) xxxxxxxxxx (c) [who fails to 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 :_ For the purposes of clause (c),- (i) where a 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; (ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction.” 9. The words “who fails to prove” incorporated in the Section was substituted for the words “who fails to aver and prove”, that were originally available. The words were substituted in the provision by way of amendment of the Act by Specific Relief (Amendment) Act, 2018 and cause of action in R.F.A. No. 436 of 2009 10 the suit in question being related to the year 2004, the position prior to the Amendment is contextually relevant and applicable also. Therefore, the plaintiff must aver in the plaint that he has performed or has always been ready and willing to perform the essential terms of contract which are to be performed by him other than the one, which has been prevented to be performed or waived from performance by the defendant. In the case on hand, defendants have neither prevented the plaintiff from performing any part of the contract nor has waived any part from his performance. Therefore, it is incumbent upon the plaintiff in the case on hand to plead that he was ready and willing to perform the part attributed to him by the terms of the agreement for sale. The plaintiff is bound not only to plead, but also to prove that the part meant to be performed by him in the agreement for sale was already performed or that he has been ready and willing to perform the essential terms of the contract or is still ready and willing to perform his part. 10. Therefore, whether the plaintiff has incorporated pleadings of the above nature in the plaint is crucial in the context. 11. It is true that in the plaint such a plea was raised by the plaintiff and is extracted hereunder: R.F.A. No. 436 of 2009 11 "ബ�ക� വ�ലയർതമ�യ 3,75,000/- രപ ക��ടത� വ�ദ�യക� ച�ലവ�ൽ ത�റ�ധ�ര� എഴത� വ�ങനത�ന� വ�ദ� എപ$�ഴ� ഇപ$�ഴ� സദ� സനദന�യ�ടളത� ആയത�ന പവണന ആധ�ര കചലവ�ൾ ഉൾക$ക�യള സ�ഖ2 വ�ദ� പകലണ�യ�രനതമ�ണ�.” 12. From the above extract, it is clear that plaintiff has specifically pleaded about his readiness and willingness to perform his part of the contract. The plaintiff has categorically stated in the above extract that the balance sale consideration of Rs.3,75,000/- was readily available with him and he was always ready and willing to pay the same to get the sale deed executed in his favour. 13. It is now turn to scrutinize the oral evidence tendered by plaintiff as PW1 to see whether he has spoken categorically about the availability of money with him or about the source wherefrom he could gather the same, to be paid as balance sale consideration. In the proof affidavit filed by him, he has sworn to those aspects strictly in tune with his pleadings as extracted above. During cross examination, he has deviated from the above stand and stated that he was not maintaining an account with any bank. According to him he was at Gulf and during that period also he had not maintained any account with a bank. He is maintaining an account in the name of his uncle and wife. According to him, the money required for paying balance sale R.F.A. No. 436 of 2009 12 consideration was entrusted with his uncle and the latter has undertaken to pay that to the defendants at any point of time. Though he has agreed to obtain a document from his uncle and to produce it to establish the entrustment of money with him, he failed to do so. He has categorically denied that a document was not available to show that money was with him at the relevant time. But he failed neither to examine his uncle nor to produce any document from his uncle as spoken by him to establish entrustment of money with him, for payment of balance sale consideration. On the contrary, he has stated that no documents was available with him to establish his source of money for payment of balance sale consideration. 14. PW2 was examined mainly for establishing that the balance sale consideration was agreed to be paid by the plaintiff to the defendants on the latter making him convince that his title to the property proposed to be sold is perfect and valid. Yet another aspect proposed to be established by the plaintiff by examining PW2 was that there were several occasions, when the defendants had approached the plaintiff seeking for extension of time for execution of sale deed and therefore they at fault. The defendants have told them that the relevant documents to establish their valid title to the property were not available with R.F.A. No. 436 of 2009 13 them. It was spoken by PW2 that he had gone to the Sub Registrar's Office with the plaintiff on 13.06.2005, the day on which the extended period of time got expired and waited there till 10.15 am, but the defendants did not reach there. According to him, himself and the plaintiff had gone to the residence of the defendants at 11 am on the day and was told by the latter that the documents pertaining to the title of the property were not obtained from the bank. 15. PW3 was none other than the local committee member of C.P.M. and a social worker. PW3 was examined by the plaintiff to establish that at the time of execution of agreement for sale documents relating to title over the property were not available with the defendants. It is stated by PW3 that he has approached the defendants demanding execution of sale deed in favour of the plaintiff but the defendants did not accede to that. Extension of time was sought by them severally stating diverse reasons and for the failure of the defendants to hand over the relevant documents alone that execution of the sale deed in favor of the plaintiff within the time limit stipulated in the agreement for sale was defeated. PW3 has also gone to the extent of stating that the money required for paying the balance sale consideration in full was available to the plaintiff. R.F.A. No. 436 of 2009 14 16. The evidence tendered by PW4 is already discussed with and it has nothing to do with the availability of money with PW1 for paying the balance sale consideration. Apart from the interested version of PW1, there is total want of evidence to substantiate that he was having sufficient funds with him to pay the balance sale consideration. Plaintiff's specific case was that he was not maintaining any accounts with the bank at the relevant time. Therefore, it was impossible for him to produce materials like pass book or statement of accounts from the bank to substantiate his version that money was available with him at the relevant time to make the payment of balance sale consideration. Though he had stated that he had deposited the required fund in the joint account of his uncle and wife, for non examination of any one of them and non production of a document pertaining to that deposit, his version has turned unreliable. 17. The 2[nd] defendant as DW1 has totally denied the claim of PW1 that the amount was ready with him during the three months' period stipulated under Ext.A1 and even thereafter. In a context, when the plaintiff failed to establish that money was readily available with him or that he had the cash in deposit or R.F.A. No. 436 of 2009 15 had the source to avail the money for payment to the defendants as balance sale consideration, he is not entitled to obtain a decree for specific performance in his favour. As contemplated under Section 16(c), specific performance of a contract cannot be enforced in favour of a person who fails to plead and prove either that he has performed or that he is ready and willing to perform the essential terms of agreement for sale, which has been agreed by him to perform. 18. It is clear from the discussion above that the plaintiff though has approached the trial court filing the suit seeking for a decree for specific performance, has thoroughly failed to establish categorically that he was possessed of the money required to be paid as balance sale consideration at any point of time. He has no case that the entire sale consideration was paid by him to the defendants. It has come out in evidence that the documents to establish valid and perfect title for the defendants are in the custody of the bank while the contract for sale was executed. Oral evidence was tendered by PW1 to the effect that Ext.A1 was executed knowingly of such a factum. The failure of the defendant to perform his part of Ext.A1 has only secondary importance in a contract for sale. The prime requirement that R.F.A. No. 436 of 2009 16 precedes grant of a decree for specific performance in the case on hand was the readiness and willingness of the plaintiff to perform his part of the contract. Evidence to establish availability of money with him or any source for him to avail money, from the inception of execution of agreement for sale, till his examination in the suit filed seeking for a decree of specific performance is essential for the success of the plaintiff in the suit on hand. That is the fundamental aspect to be established by the plaintiff for obtaining a decree for specific performance. 19. A Division Bench of this Court in **Basheer v. Khadeeja [2001 (2) KLT 632]** had settled the legal position clear as extracted hereunder : “6. In order to get a decree for specific performance, the appellant must prove that he was and is still ready to perform his part of the agreement. Admittedly the property was not measured and the draft of the sale deed was not prepared. It is true that the respondent has a case that the appellant had never approached either the respondent or her father Pokku Haji. If actually, the appellant was ready and willing to perform his part of the contract, he might have atleast sent a notice stating his readiness and willingness. Apart from the interested testimony of the appellant there is no other evidence to show his readiness and willingness to perform his part of the contract. That mediators allegedly intervened in the transaction was not examined. The relief of specific performance is a discretionary remedy and that discretion must be exercised on sound principles and circumstances. The readiness and willingness of the appellant to perform his part of the contract is a question of fact R.F.A. No. 436 of 2009 17 to be inferred from the facts and circumstances of each case. The conduct of the party and the attending circumstances also is to be looked into. Here, in this case, the appellant has not adduced any evidence to show that the balance of sale consideration was ready with him. There is only the self serving evidence of PW-1 alone regarding the same. During examination, he has admitted that he was having bank accounts in three different banks. But he has not produced the pass books in respect of the accounts or other documents. In the circumstances it cannot be found that the appellant was ready and willing to perform his part of the contract.” 20. It is the burden of the plaintiff to plead and establish about his financial capacity and readiness to pay the balance sale consideration. When the plaintiff failed to discharge his burden as aforesaid, he cannot take the advantage of the failure of the defendants to perform his part as per the agreement for sale. The plaintiff has approached the trial court to obtain a direction to the defendants to execute the sale deed in respect of the property agreed to be sold in his favour. Therefore, evidence must come on record to establish either that he has already performed his part or that he is ready and willing to perform his part of the contract. It is neither incumbent upon the plaintiff to deposit the money sufficient to meet the balance sale consideration in the court unless so directed. He must adduce cogent evidence to establish his source of money throughout the R.F.A. No. 436 of 2009 18 period stipulated in the agreement for sale and also at the relevant time when the suit was pending consideration. The plaintiff must establish his readiness and willingness to pay the amount stipulated by the agreement for sale successfully and satisfactorily during trial. When the plaintiff fails to prove that crucial element, decisive in the matter of exercise of discretion by the court whether to grant the equitable remedy of specific relief or not, the plaintiff will not succeed and the decree of specific performance is only to be declined. The trial court has considered the evidence adduced by the plaintiff in its correct perspective and found that he has failed to establish his readiness and willingness to perform his part as per Ext.A1. This Court finds no reason to interfere with the judgment under challenge. In the result, the appeal fails and is dismissed. No order as to costs. Sd/- **MARY JOSEPH,** **JUDGE** NAB