Vinayan v Velappan and Dhanya

RFA.No.137 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** **RFA.No.137 OF 2010** **AGAINST THE JUDGMENT AND DECREE IN OS 329/2006 DATED 17-11-2009 OF PRINCIPAL SUB COURT,KOTTAYAM** ## **APPELLANT/PLAINTIFF** **VINAYAN, AGED 48, S/O. PARAMESWARAN RESIDING AT THOPPIL HOUSE,, THAIKKATTUKARA DESOM, ALUVA,, ERNAKULAM DISTRICT.** **BY ADVS. SRI.C.T.JOSEPH SRI.JOE POLLAYIL SRI.ROSHIN IPE JOSEPH** **RESPONDENT/FIRST DEFENDANT AND ADDL. 3RD DEFENDANT (2ND DEFENDANT DECEASED PENDING SUIT)** **1 VELAPPAN, AGED 59 S/O.KRISHNAN, RESIDING AT PADINJAREPUTHENPURAYIL @, PUTHENPURAYIL, THOTTAKAM KARA,, THALAYAZHAM VILLAGE, VAIKKOM. 2 DHANYA AGED 25 D/O.VELAPPAN PADINJAREPUTHENPURAYIL @ PUTHENPURAYIL,, THOTTAKAM KARA, THALAYAZHAM VILLAGE, VAIKKOM.** ## **R2 AND R1 BY ADV. SRI.S.VINOD BHAT** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2608-2020, THE COURT ON 07-12-2020 DELIVERED THE FOLLOWING:** RFA.No.137 OF 2010 2 ## **JUDGMENT** ## **Dated this the 7th day of December 2020** Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Principal Sub Judge, Kottayam, in O.S.No.329/ 2006, the plaintiff / appellant has preferred this appeal. 2. The parties are referred to in the rank assigned to them in the suit for the purpose of convenience and clarity. 3. The case pleaded by the plaintiff is that an extent of 80 Ares and 94 sq.metre land in Sy. No.427/1 of Kallara Village is owned and possessed by the first respondent/first defendant as per sale deed No.1982 of SRO, Kaduthuruthy. An extent of 1 Hectare 8 Ares and 5 sq.meters was jointly owned and possessed by the first defendant and second defendant as per sale Deed Nos.203/1980 of the very same SRO. Those properties were agreed to be sold for a total sale consideration of Rs.2,33,500/-to the plaintiff. Towards the said agreement the plaintiff had paid a sum of Rs.70,000/- as advance. The time stipulated for execution of the agreement was six months. It was also stipulated that the first defendant had to convince the RFA.No.137 OF 2010 3 plaintiff that the property is free from encumbrance by producing encumbrance certificates, possession certificates and title deed. Before expiry of the said period, the plaintiff had issued a notice expressing his willingness to purchase the property as per the terms of the agreement. Though, the same was received there was no response from his side and hence the plaintiff was constrained to file the suit for specific performance of contract; in the alternative,to recover the sum of Rs.70,000/-paid as advance. 4. The first defendant by filing written statement resisted the suit contending that he was in dire need of money for the treatment of his wife the second defendant, who was suffering from cancer and undergoing treatment before Regional Cancer Centre. In order to arrange money to meet the expenses for treatment, he entered into the agreement with the plaintiff through one Rajesh who approached him and offered money as advance amount and the same was received by him. Though six months time was stipulated in the agreement, it was informed by Rajesh that the plaintiff was ready to execute the sale deed within a period of one month and thus he entered into the agreement to raise funds for the treatment of his wife. But the balance sale consideration was not paid by the plaintiff as agreed to and so the first defendant had to borrow money from RFA.No.137 OF 2010 4 various persons on payment of high rate of interest. As reply to the plaintiff on 19.7.2006 he intimated his willingness to execute the sale deed, but there was failure on the side of the plaintiff in executing the sale deed. Time was considered as the essence of the contract and since the plaintiff committed breach, he is not entitled to get a decree for specific performance or to get back the money from the defendant. The second defendant expired on 18.9.2006 and the third defendant was also impleaded as her legal heir. The first defendant therefore, sought for dismissal of the suit. 5. Before the court below the plaintiff was examined as PW1 and Exts.A1 to A9 were marked. On the side of the defendants B1 and B1(a) were marked and the first defendant was examined as DW1. 6. The court below after evaluation of the entire evidence concluded that the plaintiff is not entitled to get a decree for specific performance of contract, but allowed to recover the sum of Rs.70,000/- paid as advance to the first defendant. 7. Heard Sri.Roshin Ipe Joseph, the learned counsel for the petitioner, and Sri. Vinod Bhat, the learned counsel for the respondents. 8. Ext.A1 is the sale agreement dated 24.1.2006. As per the terms of the agreement for sale, the sale deed was agreed to be RFA.No.137 OF 2010 5 executed within a period of six months. Out of the two items of properties A schedule property exclusively belonged to the first defendant and B schedule belonged to the first and second defendants jointly. On the death of the second defendant the third defendant was also impleaded as her legal heir. As per Ext.A1 the total sale consideration was Rs.2,33,500/-. Out of the same an advance amount of Rs.70,000/- was admittedly received by the first defendant. At the outset it is to be noted that the suit was filed for specific performance with an alternative prayer for refund of the advance amount of Rs.70,000/-. The suit being the one for specific performance of the contract, the readiness and willingness was required to be proved by the plaintiff and it was to be considered as basic requirement. In the instant case the court below though found that the plaintiff has proved and established his readiness and willingness to perform his part of contract, declined to grant a decree for specific performance and granted only a decree for return of the advance amount exercising the discretionary jurisdiction provided under Section 20 of the Specific Relief Act, 1963. As the court has found that the plaintiff has proved that he was willing to perform his part of contract and he was having funds /sufficient source to raise funds so as to pay the balance sale consideration, the only question to RFA.No.137 OF 2010 6 be looked into is whether the court below is right in declining the prayer for specific performance of contract and granting a decree for refund of the advance amount. It is significant to note that no cross appeal was filed by the defendants challenging the findings of the court below and without a cross appeal the defendants have no right to challenge the findings that the plaintiff was ready and willing to perform his part of contract and had funds to pay the sale consideration. So the only question to be looked into is whether the court below is right in exercising its discretion under Section 20 of the Specific Relief Act ,1963 against the plaintiff. 9. The transaction was of the year 2006, ie; before the amendment of the Specific Relief Act, 2018. It is profitable to reiterate Section 20 of Specific Relief Act, 1963 (for short 'the Act') which reads as follows: “20. Discretion as to decreeing specific performance. (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such 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 and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance. RFA.No.137 OF 2010 7 (a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1 : Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2 : The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of RFA.No.137 OF 2010 8 ## specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.” 10. Therefore, the jurisdiction to decree specific performance is discretionary and the court is not bound to grant a relief in favour of the plaintiff/aggrieved party merely because it is lawful to do so. The court should take into consideration meticulously all the facts and circumstances in each case, the conduct of the parties etc, in granting a decree for specific performance. As referred above the entire property involved in this transaction does not belong to the first defendant. His wife was having half right over item B schedule property. But the recital in Ext.A1 would show that the first defendant had agreed to alienate B schedule property also to the plaintiff for which he had no right at that point of time. He had only half right over the B schedule property as the other half belonged to his wife. 11. It is pertinent to note that the definite case of the first defendant was that his wife/the second defendant was completely laid up due to cancer and she had undergone treatment before various hospitals namely PVS Hospital, Lord's Hospital, Cosmopolitan Hospital, Thiruvananthapuram and Regional Cancer Centre, RFA.No.137 OF 2010 9 Thiruvananthapuram during the said period of execution of Ext .A1. In the above background, it is seen that DW1, the first defendant had deposed before the court that as the second defendant was suffering from cancer, he was in dire need of money and so he decided to alienate the property to meet the unexpected and exorbitant expenses required for her treatment and thus he entered into the agreement with the plaintiff through one Rajesh who approached him to purchase the property on behalf of the plaintiff. His case was that he never had a direct transaction with the plaintiff but execution of Ext.A1 agreement was through the above referred Rajesh. According to the first defendant as he was in dire need of money, he in fact informed Rajesh regarding his urgency for money within a month of the date of execution of the agreement and on behalf of the plaintiff, Rajesh agreed the same though the time stipulated in the agreement was six months. It is revealed from the records that the second defendant expired on 18.9.2006 while undergoing treatment in the Cancer Centre. The date of expiry of the agreement was 24.7.2006 and the death of the second defendant was immediately after the same. DW1 had a case that as the document was not executed within the stipulated time though time was considered as the essence of the contract, the balance sale consideration was not available with him to RFA.No.137 OF 2010 10 utilize for the treatment of his wife as it was not paid by the plaintiff. The first defendant further contended that as his wife expired, he was not interested to execute the document. The plaintiff in fact kept away from parting with the balance sale consideration, which was highly essential for him for the treatment of his wife at that point of time. It is also contended by the defendants that since the second defendant died after the expiry of the period of the agreement, the third defendant derived right over the property of the second defendant and she is also not willing to execute the sale deed in favour of the plaintiff due to her sentimental attachment to the property. In the background of the above contention, it is pertinent to note that no document was produced by the defendants in the suit regarding the treatment of the second defendant, but in the appeal by filing I.A No.1 of 2019 ( under Order XLI Rule 27 of the CPC) the copies of the treatment records have been produced by the 1[st] defendant in order to establish the case that the defendants' intention to sell the property was to gather money for the treatment of the second defendant. The contention of the defendants that the execution of the agreement was to raise funds for the treatment of the second defendant was not denied by the plaintiff and the plaintiff did not adduce evidence to prove that the said contention was a false RFA.No.137 OF 2010 11 one, raised by the defendants only to evade execution of the sale deed. In the suit except the plaintiff and the first defendant as PW1 and DW1 respectively, no other witnesses were examined. The contention raised by the defendants that they suffered very heavy loss due to the non execution of the sale deed has to be accepted as such in the absence of contra evidence on the side of the plaintiff and so the records would indicate that the execution of the sale agreement was only to raise funds to meet the expenses for the treatment of the second defendant. The court below mainly relying on that aspect held that though the plaintiff was ready and willing to execute the sale deed it could not be materialized, and as DW1 lost his beloved wife and the third defendant lost her loving mother, and they have sentimental attachment to the scheduled properties, the extent of hardship that caused to the defendants, is more than the hardship caused to the plaintiff due to the non execution of the document. It is a relevant factor which the court below has taken note of. 12. More over the contention of the defendants that the plaintiff is a builder has also come out in evidence from the documents produced by him. It has clearly come out in evidence that he intended to purchase the property not with the intention to construct a residential building for his personal use, but for some other purpose. RFA.No.137 OF 2010 12 Though he raised an allegation that he wanted to set up a house for his mother, as she liked the plot, she was not examined before the court to substantiate the said contention. So the court below after meticulously evaluating the evidence found that the hardship that will be caused to the defendants will be more than the hardship that will be caused to the plaintiff due to the non execution of the sale deed or non-performance of the sale agreement. The court below also found that unfair advantage will be caused to the plaintiff if a decree for specific performance is granted in his favour, thereby directed the defendants to return the amount received as advance with interest at the rate of 6%. As referred above, it is well settled that under Section 20 of the Act the court is not bound to grant a decree for specific performance merely because it is lawful to do so, but is bound to act in a sound and reasonable manner guided by judicial principles which would take in, the principles of justice, equity and good conscience. Therefore, specific performance of contract is not automatic but is one of discretion of the court to be exercised reasonably and the court has to consider whether it will be fair, just and equitable on the circumstances of the case, the conduct of the parties and their respective interests under the agreement. When the jurisdiction to decree specific performance is discretionary, the contingencies and the RFA.No.137 OF 2010 13 totality of circumstances mentioned above appears to be sound, reasonable and guided by judicial principles to exercise the discretion in favor of the defendants. (See **A.C.Arulappan v Ahalya [(2001) 6 SCC 600]** , **Laxman Tatyaba Kankate and another v. Taramat Harishchandra Dhatrak (AIR 2010 SC 3025)** and **Shamsher Singh v. Rajinder Kumar [(2015) 5 SCC 531]** . When the totality of the circumstances involved are taken care of, it appears as too harsh to grant a decree of specific performance against the defendants. Therefore, while balancing the equities in the facts and circumstances of the case, I find that if it is granted, the plaintiff will get undue advantage and result in hardship to the defendants. 13. In the instant case, the I.A filed under Order XLI Rule 27 of CPC, the medical records which relate to the treatment of the second defendant have sought to be admitted as additional evidence by the defendants. In fact the defendants have not produsced the original documents but what is produced before the court is only the photocopies of the documents. It is clearly stated in the affidavit attached to the petition that the originals were submitted for claiming monetary benefits on the death of the second defendant. As mentioned above the plaintiff has not challenged the contention raised by the defendants regarding the treatment of the second defendant. RFA.No.137 OF 2010 14 The case of the defendants that the second defendant was suffering from cancer and the attempt of the defendants to sell the properties was to raise funds to meet the treatment expenses and that she died immediately after the time stipulated in the agreement for its execution etc stands unchallenged. In my opinion in such a situation the court below has proceeded correctly in evaluating the claim put forth by the defendants regarding the loss sustained by them. Hence, I find that this petition is not liable to be allowed and therefore the production of these documents are absolutely unnecessary to decide the controversy at this stage. Hence, I A is only to be dismissed and I find that the documents are not required to decide the issue involved in this case. 14. On a meticulous evaluation of the entire evidence available on record, I do not find any ground to interfere with the finding of the court below. The court below has exercised the discretionary jurisdiction available under Section 20 of the Specific Relief Act, 1963 Act correctly by granting a decree for refund of the advance. Therefore, I find that there is no merit in the appeal and hence the appeal is liable to be dismissed. In the result, the judgment and decree of the court below is hereby confirmed. Therefore, the appeal stands dismissed. However, RFA.No.137 OF 2010 15 in the facts and circumstances of the case, I leave the parties to bear their respective costs. Sd/- SHIRCY V JUDGE smm