Venkiteswaran v. Pushkaran

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** **RFA.No. 44 of 2011** **AGAINST THE JUDGMENT IN OS 483/2008 of PRINCIPAL SUB COURT,NORTH PARAVUR DATED 31-03-2010** ## **APPELLANT/DEFENDANT:** **VENKITESWARAN,S/O.DAMODARAN PILLAI, VEMBILLI HOUSE, METHALA DESOM, METHALA VILLAGE,, KODUNGALLUR TALUK.** **BY ADVS. SRI.N.K.MOHANLAL SRI.M.K.ABDULLA (MANADATH)** ## **RESPONDENT/PLAINTIFF:** **PUSHKARAN S/O NARAYANAN,THONIPPALLATH CHAMAKKALA, EAST KADUNGALLOOR KARA, KADUNGALLOOR, VILLAGE, PARUR TALUK.** **BY ADV. SRI.P.VISWANATHAN (SR.) BY ADV.P.N.RAMAKRISHNAN NAIR** ## **OTHER PRESENT:** **ADV.AJITH VISWANATHAN FOR RESPONDENT.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2018, THE COURT ON 25.2.2019 DELIVERED THE FOLLOWING:** RFA.No. 44 of 2011 2 ## **JUDGMENT** A decree for specific performance granted in favour of the plaintiff in O.S.No.483/2008 on the file of the Sub Court, North Paravur, is under challenge. 2. Facts in a nutshell are as follows: An extent of 5 cents of land scheduled in the plaint is owned and possessed by the defendant. His sister Saraswathy Amma has also 3 cents adjacent to the said 5 cents. As per an agreement dated 12.9.2004 he had agreed to sell his 5 cents of property for a total sale consideration of Rs.2,25,000 **/** - and the adjacent property for Rs.1,35,000/- to the plaintiff. A sum of Rs.35,000/- was received as advance. A stipulation was also incorporated in the agreement that the plaintiff has to clear off the liabilities due to Kodungalloor Service Co-operative Bank and the balance sale consideration has to be paid within one month from the date of death of Kavukutty Amma, the mother of the defendant. It was also stipulated in the agreement that the plaintiff had to effect the repair works of the building at his RFA.No. 44 of 2011 3 expense and accordingly, the plaintiff had spent Rs.20,000/under that count. The defendant could not execute the sale deed for the 3 cents of property, as it is owned by his sister who is not a party to the agreement. Though he was ready and willing to perform his part of the contract there was default on the side of the defendant in execution of the sale deed and when it was realized that the intention of the defendant was to cheat him, the suit was filed with an alternative relief for return of a sum of Rs.3,22,881/- 3. The defendant though admitted the agreement contended that the plaintiff did not perform his part of contract by effecting the maintenance and repair works of the building and as a result a portion of the kitchen collapsed. So it was unsafe for his mother to continue to reside in the building and she was shifted to Kodungalloor against her wish where he was residing. His mother expired on 28.11.2008 at Kodungalloor. As breach was committed by the plaintiff, the sale deed was not executed and he was not entitled to get a decree for specific performance was the stand taken by the defendant. 4. Before the court below, PW1 to PW3 were examined and RFA.No. 44 of 2011 4 Exs.A1 to A4 were marked on the side of the plaintiff. The defendant was examined as DW1. Ext.C1 was also marked. After evaluating the evidence the court below decreed the suit for specific performance. Aggrieved by the judgment and decree, the appellant/defendant is before this court with this appeal. 5. I heard Sri.N.K.Mohanlal, the learned counsel for the appellant/defendant and Sri.Ajith Viswanathan, the learned counsel for the respondent/plaintiff. 6. The relief for specific performance is purely discretionary. 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 readiness and willingness has to be shown through out and has to be established. The plaint schedule property belongs to the defendant and he agreed to sell it for a total sum of Rs.2,25,000/- and received an advance amount of Rs.35,000/-. The execution of Ext.A1 agreement, the receipt of Rs.35,000/- as advance out of the sale consideration are admitted by the defendant. As per the terms of the agreement, the plaintiff has to clear off the liabilities outstanding before the Kodungalloor Service Cooperative Bank as the property was RFA.No. 44 of 2011 5 mortgaged by the defendant. In tune with the terms of the agreement, it is revealed from Ext.A2 series and Ext.A4 as well by the evidence of PW3 that the plaintiff had in total remitted Rs.1,77,694/- and thus cleared the liabilities within a period of one year. So apart from the advance amount of Rs.35,000/-, he had remitted Rs.1,77,694/- towards the sale consideration. Therefore, it is clear that a major portion of the sale consideration had already been paid by the plaintiff and the defendant had admitted that the loan transaction had been closed by the plaintiff by remitting the amount due to the bank on various dates. 7. The plaintiff's definite case is that he was always ready and willing to pay the balance sale consideration and to get the sale deed executed in his favour, but there was failure on the side of the defendant in executing the sale deed in his favour. He had adduced evidence to prove that the repair works were effected by him by spending an amount of Rs.20,000/-. According to him, he had removed the tiles and replaced the same and the broken window was also replaced by him by spending an amount of Rs.300/- per person per day and the work in fact continued for RFA.No. 44 of 2011 6 more than three days. 8. It is discernible from records that the terms of the agreement to effect repair works and maintenance works of the building was because the defendant's aged mother who was having some sentimental attachment to the residential house situated therein had the desire to reside there till her death. The plaintiff as the proposed purchaser agreed for that condition though it appears to be strange or surprising one. In compliance of the said condition, he had spent money for the maintenance works, is his definite contention. In order to substantiate that he spent money, he could not produce any documents, though he had examined PW2 the worker engaged by him to effect the repair works. PW2 a carpenter by profession had fully supported the case of the plaintiff that he had effected the repair works of the building as directed by the plaintiff but nothing was brought out in evidence to discard his testimony. It is also pertinent to note that though the defendant had contended that since the repairs were not effected by the plaintiff, a portion of the kitchen collapsed and thus the building had turned out to be one quite unsuitable and unsafe to reside and so he had to shift his mother RFA.No. 44 of 2011 7 from the building. Of course, there is no reason to disbelieve the case of the defendant that his mother was shifted to Kodungallur where he resides with his family and she died while residing with him. But the evidence adduced by PW2 would fully support the case of the plaintiff that the repair and maintenance were done periodically in terms of the agreement. So the totality of the circumstances would indicate that the case of the plaintiff that he had performed his part of the contract and he was always ready and willing to get the document executed in his favour stands proved. 9. As referred above he had remitted an amount of Rs.1,77,694/- to clear off the liability created by the defendant and the balance amount to be paid as the sale consideration is only a meagre amount. The readiness and willingness to get the document executed is revealed from the materials placed before the court by the plaintiff. 10. Clause 16(c) of the Specific Relief Act says that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or he is always ready and willing to perform the essence of the RFA.No. 44 of 2011 8 contract. In **Vinodan v. Sunilkumar and Others [2015(2)KLJ 579]** a Division Bench of this Court held that 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. ## 11. In **Sita Ram v. Radhey Shyam [AIR 2008 SC 143]** , it is held as follows: “10. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. (See Aniglasle Yohannan v. Ramlatha and Ors.(2005 (7) DCC 534). ## In **Azhar Sultana v. Rajamani [2009(2)KLT SN 3 (C.No.4)** SC it was held that “Section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract”. 12. Therefore, it is clear that a decree for specific RFA.No. 44 of 2011 9 performance can be granted only to a person who could prove his readiness and willingness to perform his part of contract and that has to be gathered by evaluating the entire facts involved in the dealings between both parties. Here the fact that he had cleared the outstanding loan before the Co-operative Society by effecting payment of Rs. 1,77,694/- itself would show that he was willing to purchase the property in terms of Ext.A1. Likewise, the evidence of PW2 would fortify his contention that he had effected repair works in terms of the agreement and that would also establish that he was ready and willing to perform his part of the contract. It is significant to note that by repaying the loan amount outstanding and by carrying out the repair works he had paid considerable amount of sale consideration and the balance to be paid is only a meagre amount. Therefore, it could be seen that he was having sufficient funds with him and the readiness to pay off the balance sale consideration is discernible from the facts revealed from the evidence on record. Of-course the relief for specific performance is purely discretionary. A close and meticulous evaluation of the entire facts involved, I am of the opinion that the finding of the learned trial judge that the plaintiff RFA.No. 44 of 2011 10 was always ready and willing to perform his part of the contract to get the document executed in his favour appears to be absolutely correct and the learned trial Judge correctly exercised his discretion by granting a decree for specific performance of contract. Therefore, the appeal stands dismissed confirming the judgment and decree for specific performance. The defendant shall execute the sale deed in favour of the plaintiff within two months from today, on receipt of the balance sale consideration. The parties shall bear their respective costs. **Sd/-** SHIRCY V. smm JUDGE