Dismissed

Kumari v. Sasi

Kerala HC28 Jun 2016OP(C)/242/2016

Case brief

AI extract

What is this about?

The High Court dismissed a petition filed under Order 39 Rule 2 CPC. The petitioner, who failed to pay Rs. 7,65,000 within 8 months per a compromise decree, sought a direction to sell the property. The Court held that the petitioner lost the option to pay and must execute the sale deed upon receiving the balance consideration, rendering the form of relief not maintainable.

What did the court decide?

The petitioner's prayer for an order appointing a commission to sell the property was dismissed.

Kumari Vs Sasi — Specific Performance | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938

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OP(C).No. 242 of 2016 (O)

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IA.NO.7272015 IN OS 82/2013 OF SUB COURT, KOCHI DTD.2.11.2016

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PETITIONER(S):

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KUMARI, AGED 54 YEARS,

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W/O.LATE PARAMAN, RESIDING AT VELLUTHAITHARA, NAYARAMBALAM KARA, NAYARAMABALAM VILLAGE-685 209.

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BY ADV. SRI.SUNIL.M.KARANY

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RESPONDENT(S):

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SASI, AGED 55, S/O.BAVACHAN, KAITHAVALAPPIL, NAYARAMBALAM P.O., KOCHI-682 509.

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BY ADVS. SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 242 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1. TRUE COPY OF THE MEDIATION AGREEMENT IN ENTERED INTO BY THIS PETITIONER AND THE RESPONDENT DATED 16/10/2014.

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EXT.P2. TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE POLICE DATED 15/5/2015.

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EXT.P3. TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE POLICE DATED 15/5/2015 IN PROOF OF SUBMITTING EXT.P2.

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EXT.P4. TRUE COPY OF THE LAWYER NOTICE ISSUED BY THE LAWYER TO THE RESPONDENT DATED 22/5/2015.

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EXT.P5. TRUE COPY OF THE ORDER PASSED BY THE HONORABLE COURT BELOW IN IA 727/2015 DATED 2/11/2015.

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EXT.P6. TRUE COPY OF THE JUDGMENT OF HONOURABLE MUNSIFF'S COURT, KOCHI IN OS NO.74/2012 DATED 18/8/2012.

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RESPONDENT(S)' EXHIBITS:

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------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

K.HARILAL, J.

O.P.(C). No.242 of 2016

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Dated this the 28^th day of June, 2016

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JUDGMENT

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The petitioner is the defendant in O.S.No.82/2013

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on the files of the Sub Court, Kochi, as well as the petitioner in I.A.No.727/2015 filed therein. The above Original Suit is one for specific performance of an agreement for sale and the matter in dispute was settled between the parties before the Mediation Centre. On the basis of the above settlement, a compromise decree has been passed on 23/10/2014. As per the terms of compromise, an amount Rs.7,65,000/is to be paid by the petitioner herein to the respondent, within a period of 8 months and if she fails to pay the said amount, within the prescribed time, the respondent/plaintiff has to deposit the balance amount of Rs.1,45,000/- and on such deposit, the petitioner has to execute the sale deed in favour

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OP(C).242/16 :2:

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of the respondent. The petitioner has not paid Rs.7,65,000/-within 8 months from 16.10.14. In that context, the petitioner filed an objection to get the sale deed executed after accepting Rs.1,45,000/- to be deposited by the respondent as the balance consideration, as Rs.3 lakhs is due from the petitioner to Nayarambalam Service Co-operative Bank.

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The respondent had deposited Rs.1,45,000/- as balance consideration and sought for a direction to the petitioner to execute the sale deed as per the terms of compromise through the process of the court. Then the petitioner filed the above I.A. seeking an order for appointing a commission to conduct the sale of the property enabling her to pay Rs.7,65,000/-, which shall be agreed to be paid within eight months from 16.10.2014. After considering the objection filed by the respondent, the court below rejected the said application by Ext.P5. The legality and correctness of the reasonings, whereby the court below rejected said

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OP(C).242/16 :3:

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application, are under challenge in this original petition.

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Heard the learned counsel for the petitioner.

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Going by the impugned order, it is seen that as

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per the terms of compromise decree, the petitioner has to pay Rs.7,65,000/- within eight months from 16.10.2014 to the respondent and if she fails to do so, the respondent is entitled to pay the balance sale consideration of Rs.1,45,000/- to the petitioner and the petitioner has to receive the said amount and execute the sale deed in favour of the plaintiff in respect of the plaint schedule property. It stands admitted that the petitioner failed to pay Rs.7,65,000/- within 8 months from 16.10.2014. If that be so, the petitioner is liable to execute the sale deed with respect to the plaint schedule property after receiving the balance sale consideration of Rs.1,45,000/- from the respondent. There is no other option. She has lost the chance of paying Rs.7,65,000/- to the respondent as she

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OP(C).242/16 :4:

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failed to pay the said amount within 8 months from 16.10.2014.

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In the absence of right to sell the property, after the cut off date to pay Rs.7,65,000/-, the application to appoint an Advocate Commissioner to sell the property itself is not maintainable. Thus, the court below is justified in dismissing the application. I do not find any kind of illegality in the impugned order.

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This original petition is devoid of merits and dismissed accordingly.

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K. HARILAL, JUDGE

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okb.29/6

Kumari v. Sasi

Case brief

What is this about?

What did the court decide?

Kumari v. Sasi

Case brief

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What did the court decide?

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