V.P. Rajappan v. Lakshmanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 5TH DAY OF FEBRUARY 2014/16TH MAGHA, 1935** ## **RSA.No. 639 of 2011 ( )** **-----------------------AS.NO. 58/2001 OF SUB COURT, OTTAPPALAM OS.NO. 63/1998 OF MUNSIFF MAGISTRATE COURT,MANNARKKAD** **--------------------------** ## **APPELLANT/ARESPONDENT/PLAINTIFF:** **-------------------------------------------------------------** **V.P. RAJAPPAN,S/O.VENGAPPARA VEETTIL PADMANABHAN, RESIDING AT SIVANKUNNU, ARAKKURUSSI AMSOM,MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN -678 582.** **BY ADVS. SRI.T.C.SURESH MENON** **SRI.JIBU P THOMAS** **SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.MATHEWS RAJU** ## **RESPONDENT/APPELLANT/DEFENDANT :** **---------------------------------------------------------------** **LAKSHMANAN,S/O.NARAYANAN CHETTIYAR, RESIDING AT NALPATH KUDIYIL VEETTIL, THENKARA AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN 678 761.** **BY SRI.T. SETHUMADHAVAN,SENIOR ADVOCATE SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## R.S.A. No. 639 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 05[th] day of February, 2014 ## **J U D G M E N T** The plaintiff, who was denied a decree for specific performance and was dissatisfied with the decree for return of the advance amount, has come up in appeal before this Court. 2. The facts absolutely necessary for the disposal of this appeal are as follows: By virtue of Ext.A1, agreement dated 21.11.1997, the defendant undertook to assign an extent of 1 acre 10 cents of paddy land for a total consideration of 80,000/-. He₹ received 42,000/- as advance on the very same day itself₹ and it is alleged in the plaint that on 12.01.1998, an amount of 13,000/- was also paid. The document was to be₹ executed on or before 21.03.1998. Going by the complaint of the plaintiff, he was always ready and willing to perform his part of the contract and he called upon the defendant to ## **R.S.A. No.639/2011** **-2-** execute the deed. He had in fact sent a notice to that effect also. Not only that the defendant did not reply, he was unwilling to execute the sale deed. That forced him to approach the court. 3. The defendant resisted the suit. Shorn off unnecessary details, his case was that, he had borrowed amount from the plaintiff for which he offered certain papers as security and that was misused by the plaintiff concocting an agreement for sale. According to him, he had never offered his property for sale and that was a fraud played by the plaintiff. 4. On issues raised by the trial court, the parties went for trial. The evidence consists of the testimony of PWs 1 and 2 and Exts. A1 to A3 were marked from the side of the plaintiff. The defendant had DW1 examined. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the agreement has been in fact executed by the defendant and that he was **-3-** ## **R.S.A. No.639/2011** the defaulting party. Finding no reasons to reject the prayer for specific performance, the suit was decreed in toto. 6. The disappointed defendant carried the matter in appeal. The lower appellate court, after having found that the agreement for sale was in fact executed by the defendant and also having found that he was at fault in not completing the contract, however found that on application of Section 20 of the Specific Relief Act, 1963, the advantage should go to the defendant and thereby declined specific performance and granted a decree for the plaintiff for return of the advance amount. 7. At the time of admission of the second appeal, following substantial question of law was formulated: “Whether the lower appellate court has exercised the discretion provided under Section 20 of Specific Relief Act, in accordance with law, while modifying the decree granted by the trial court.” ## **R.S.A. No.639/2011** **-4-** 8. There cannot much dispute at this stage regarding the execution of the document namely Ext.A1. It cannot also be disputed much that the defendant was the defaulting party. Both these questions have been answered against the defendant by both the courts below and these being questions on facts based on an appreciation of the evidence does not call for interference in the second appeal at this stage. What now remains to be considered is whether the lower appellate court was justified in applying the discretion in favour of the defendant. 9. The learned counsel appearing for the appellant contended that the conduct of the defendant, his statements in court when examined as DW1, his denial of signatures in all the documents executed before court and also the fact that he has subsequently executed documents in respect of plaint schedule property in favour of strangers are sufficient to show that he is not a man of truth and he does not deserve the discretionary remedy to be exercised in his **-5-** ## **R.S.A. No.639/2011** favour. The learned counsel emphasized that both the courts below have found that there is no fault on the part of the plaintiff and merely because, the appellate court thought that there was inequality in status Section 20 should be applied, cannot be legally sustained. Since the various aspects that go in for consideration of such exercise of discretion are all against the defendant, the lower appellate court was not justified in granting the decree as is now done. The learned counsel pointed out that there were no grounds to interfere with the judgment and decree passed by the trial court. In support of his contention, he relied on the decision reported in **Nirmala Anand** v. **Advent Corporation (P) Ltd. [2002 (8) SCC 146]** . 10. Sri. T. Sethumadhavan, the learned senior counsel appearing for the respondent on the other hand contended that the court below has in its discretion felt that specific performance cannot be granted and that discretion having been properly exercised, does not call for interference. ## **R.S.A. No.639/2011** **-6-** Referring to Ext.A1 agreement, the learned senior counsel pointed out that there are certain unusual recitals therein which might have persuaded the lower appellate court to go in favour of the respondent. It is unusual, according to the learned senior counsel, that the original document would have been handed over along with the agreement for sale. That probabilizes the version given by the defendant that it was offered as a security and the documents might have been drawn up as alleged. 11. It is now by well settled that merely because the plaintiff is seen to have always been ready and willing to perform his part of the contract and has not defaulted in any manner in pursuing his steps in furtherance of the contract, still, the court retains the discretionary power under Section 20 of the Specific Relief Act to refuse a decree for specific performance. As the Section reads, it is clear that the discretion so vested with the court is not an absolute discretion but it is to be guided by principles of equity and ## **R.S.A. No.639/2011** **-7-** other considerations. Discretion has to be exercised in accordance with law. There is a catena of decisions which deals with this subject. The common thread that runs through all these decisions is that there is no straight jacket formula to ascertain how the discretion is to be exercised and when it is to be done. All the decisions are uniform in one respect and that is, each case depends upon the facts of the said case. 12. The factual scenario will have to be appreciated in the light of the evidence adduced in this case and then a decision will have to be taken whether the discretion should be exercised to refuse specific performance. 13. The various aspects regarding this question has been considered in the decisions reported in **Saradamani Kandappan** v. **Rajalakshmi [2011 (3) KLT SN 43], Adimakutty Hydu Ali** v. **Ambujam [2003 (2) KLT 328], Laxman Tatyaba Kankate And Another** v. **Taramati Harishchandra Dhatrak [2010 (7) SCC 717]** , **Garre** ## **R.S.A. No.639/2011** **-8-** **Mallikharjuna Rao (D) by Lrs. and Others** v. **Nalabothu Punniah [2013 KHC 4186]** , **G. Jayashree And Others** v. **Bhagwandas S. Patel And Others [2009 (3) SCC 141], Susheela (Died) & Anr.** v. **T.M. Muhammedkunhi [2012 (1) KLJ 780], Garre Mallikharjuna Rao (D) by Lrs. and Others** v. **Nalabothu Punniah [2013 (4) SCC 546]** . 14. As already noticed, none of these decisions say that any particular aspect alone is to be considered. An over all evaluation of the materials, the advantages and disadvantages and the hardships that may be caused to either of the parties are the relevant criterion going by the decisions above mentioned. 15. The lower appellate court felt that the inequality in status might go in favour of the defendant though legally it cannot be said that, that factor alone can be considered for exercising the discretion in favour of the defendant. There may be other circumstances also which may go in favour of the defendant. True, the defendant's conduct has not been ## **R.S.A. No.639/2011** **-9-** commendable at all. As rightly pointed out by the learned counsel for the appellant, he has denied everything including his signature on all the documents produced in the court below. But, is that sufficient to give a decree for specific performance to the plaintiff? 16. Escalation in price, passage of time etc., have bearing on the issue. In the case on hand, 1.10 acres of paddy land was sought to be assigned for a consideration of ₹ 80,000/- in the year 1997. The learned counsel appearing for the appellant has produced two documents before this Court in order to point out that subsequently, these properties have been sold for a lesser amount. 17. But, as already noticed, price is not the only consideration. It is true that the property is a paddy land. But the lower appellate court has noticed that apart from its inequality, the rise in price is always a criterion for considering the question of exercise of discretion. Three points which seems to have weighed with the lower ## **R.S.A. No.639/2011** **-10-** appellate court are (1) inequality in status (2) rise in prices and (3) comparative hardship. It cannot be said that these are irrelevant factors. 18. As already mentioned, one may not be able to appreciate the conduct of the defendant. But it cannot be said that the lower appellate court was totally in error in applying Section 20 of the Specific Relief Act, 1963 and refusing specific performance. May be a different view is possible. But it cannot be said that the view taken by the lower appellate court is either perverse or contrary to legal principles or evidence on record. If that be so, exercising its jurisdiction under Section 100 of C.P.C. it may not be possible for this Court to interfere with the finding of the courts below. This second appeal is without merits and is accordingly dismissed. ## **P.BHAVADASAN JUDGE** ds