In this appeal against a decree denying specific performance, the High Court upheld the lower court's finding that the appellant was not entitled to specific performance because the fourth respondent was a bona fide purchaser for value without notice of the prior agreement.
Appeal dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935
RFA.No. 624 of 2007
OS.1244/1992 of II ADDL.SUB COURT, THRISSUR.
APPELLANT/PLAINTIFF:
ADIMUKKUTTY, AGED 72 YEARS, VALIYAKATH HOUSE, S/O.MUHAMMMED, CHOWALLUR DESOM KANDANISSERY VILLAGE, THALAPPILLY TALUK.
BY ADVS.SRI.P.SANJAY
SRI.A.PARVATHI MENON
RESPONDENTS/DEFENDANTS:
R,R2 & 3 BY ADV. SRI.DINESH MATHEW J.MURICKEN R,R4 BY ADV. SRI.NAGARAJ NARAYANAN R,R4 BY ADV. SRI.SAIJO HASSAN R,R4 BY ADV. SRI.A.S.SABU R,R4 BY ADV. SRI.RAFEEK. V.K. R,R4 BY ADV. SRI.BENOJ C AUGUSTIN R,R4 BY ADV. SRI.PRATHAP PILLAI
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28-062013, THE COURT ON 05-07-2013 DELIVERED THE FOLLOWING:
M.L.JOSEPH FRANCIS, J.
R.F.A. No.624 of 2007
----------------------------------------------Dated 5th July, 2013.
J U D G M E N T
This appeal is filed by the plaintiff in O.S.1244 of 1992 on the file of II Additional Sub Court, Thrissur. Respondents 1 to 4 herein were the defendants in that suit, which was filed by the plaintiff for specific performance of an agreement for sale.
54,000/- and paid an advance amount of 10,000/- on the date of agreement and the period was fixed as three months, i.e., 15.8.1992. The 1st defendant was in possession and enjoyment of the property as per document No.1520/1986 of the Kunnamkulam Sub Registrar Office. The first defendant had to execute the Theer Deed on or before 15.8.1992. The plaintiff has again paid an amount of `18,000/- to the first defendant on 4.7.1992 and it has been endorsed in the agreement by the first defendant. The plaintiff was ready and willing to perform his part of the2
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agreement and the first defendant in some way or other adjourned the execution of the Theer deed. The 1st defendant had not performed her part of the contract. The plaintiff was ready and willing to perform his part by paying the balance amount of `26,000/-. The first defendant is reclaiming the land and making alterations. The plaintiff was ready and willing to perform his part of the contract and it is due to slackness of the first defendant the execution of the Theer Deed was adjourned.
The plaintiff prayed for execution of the Theer Deed in his favour. The plaintiff also prayed that in case the court is not inclined to grant the relief of specific performance, then the court may direct the first defendant to pay the advance amount of 28,000/- with 12% interest to the plaintiff. The plaintiff also prayed for cost of 10,000/- from the defendants.
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holder of the first defendant transferred the properties in favour of his wife, the third defendant after filing of the suit as per document No.1945/92 of Kunnamkulam Sub Registrar Office. Thereafter, the 3rd defendant had transferred these properties in favour of the 4th defendant as per document No.1079/93 of Kunnamkulam Sub Registrar Office. These documents had been executed only with the intention to harass the plaintiff and for causing irreparable injury and hardship. The plaintiff, therefore, further prayed in the suit that these documents were executed without any valuable consideration and to declare that these documents are null and void. Hence, the plaintiff prayed for a decree for specific performance of the contract as per agreement executed on 15.5.1992. The plaintiff is ready and willing to deposit the balance amount of 26,000/- in court. The plaintiff also prayed for alternative remedy for allowing him to realise the amount of 28,000/- with 12% interest from the 1st defendant from the date of suit till the date of realization with cost of `10,000/-.
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did not take any steps to execute the sale deed and that she waited till 20.8.1992 and then executed a registered power of attorney in favour of the 2nd defendant. Defendants 2 and 3 remained ex parte throughout. The 4th defendant, who subsequently bought the property from the 3rd defendant was initially set ex parte but later got it set aside and resisted the suit. His contention was that he was a bonafide purchaser and that he had made necessary improvements in the property by spending a fortune on it. He further had a case that the plaintiff and defendants 1 to 3 colluded together to cause hardships and injury to him.
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decreed allowing the plaintiff to realise an amount of 28,000/with 12% interest from 4.7.1992 and for an amount of 10,000/as costs. The plaintiff was allowed to realise this amount from defendants 1 to 4 personally and their assets and charge was created for that amount with respect to the plaint schedule property. Being dissatisfied with the decree disallowing the relief of specific performance, the plaintiff filed this appeal.
the learned counsel appearing for the respondents.
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below did not use the discretion, which ought to have been applied while deciding a suit for specific performance in the proper manner. The learned counsel appearing for the respondents supported the judgment of the court below.
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better to refer to the terms and conditions of the contract itself. In Ext.A1, it is specifically stated that time is the essence of the contract and the assignment of the property has to be effected within the stipulated time. On the date of execution of Ext.A1 agreement for sale, the plaintiff paid an advance amount of 10,000/- to the first defendant and on 4.7.1992, the plaintiff paid further amount of 18,000/- which was endorsed on that agreement. Thus, in total, the plaintiff had paid `28,000/towards sale consideration to the first defendant. As per the stipulation contained in Ext.A1 agreement for sale, the assignment deed has to be executed within three months, i.e., on or before 15.8.1992. The plaintiff filed the present suit for specific performance on 28.9.1992.
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with the balance of sale consideration. Therefore, the first defendant executed a power of attorney in favour of the second defendant on 24.8.1992. According to the 4th defendant, he purchased the property from the third defendant for a sale consideration of `1,05,000/- and the 4th defendant conducted necessary enquiries before the purchase and he was convinced that the property was free from all encumbrances. The 4th defendant was employed in Gulf in 1992 and therefore, he conducted enquiry through his relatives. The power of attorney holder of the 4th defendant was examined as DW1 and the wife was examined as DW2. DW1 and DW2 deposed that they conducted detailed enquiry with respect to the property and that the plaintiff, who is residing near the property had knowledge regarding their purchase and even at the time of measuring that property, the plaintiff did not intervene and did not raise any objection. DW1 and DW2 deposed that at the time of purchase, the property was a nilam and therefore, they reclaimed the nilam after obtaining necessary sanction from the authorities and constructed a multi-storeyed house spending an
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amount of `16,00,000/- and from 1993 onwards, the 4th defendant is residing in that house with his family. The plaintiff has not sent any lawyer notice to the 1st defendant asking her to execute the sale deed after receiving the balance of sale consideration within the stipulated time mentioned in Ext.A1 agreement. The first defendant executed the power of attorney in favour of the second defendant. The second defendant assigned the property to the third defendant as per Ext.B3 sale deed No.1945/92. Ext.B4 is the sale deed No.1097/93 executed by the third defendant in favour of the 4th defendant assigning the plaint schedule property to him.
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defendant is a bonafide purchaser for value without notice of earlier agreement. Considering Section 19(b) of the Specific Relief Act, performance of an agreement for sale cannot be enforced against a transferee bonafide purchaser for value without notice of the original agreement. Therefore, the court below is fully justified in finding that the 4th defendant is entitled to get the benefit of Section 19(b) of the Specific Relief Act. Since the court below has exercised the discretion judicially in accordance with the settled principles of law, I find no reason to interfere with the judgment and decree of the court below allowing alternative relief instead of specific performance.
Accordingly, this appeal is dismissed as it is without any merits. There is no order as to costs.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs
(true copy)
2 issues framed by the court
Whether the appellant is entitled to a decree for specific performance of the agreement for sale or only to alternative monetary relief.
Whether the transferee in the fourth respondent is a bona fide purchaser for value without notice of the earlier agreement under Section 19(b) of the Specific Relief Act.
1 provisions across 1 enactments
Adimukkutty
Shahidha
Ahdul Hameed
Sulu
Aboobacker
M.L.Joseph Francis
As recorded by the court registry
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