Dismissed

Sasikala v. K.Sukumaran

Kerala HC6 Oct 2016RSA/1225/2010

Case brief

AI extract

What is this about?

This second appeal challenges a decree in a suit for specific performance and recovery of advance. The High Court upheld the lower courts' finding that the defendant was not ready and willing to execute the sale deed due to subsisting mortgage and admitted failure to discharge liabilities. Consequently, the appeal was dismissed.

What did the court decide?

The second appeal is dismissed and all pending interlocutory applications are dismissed.

Sasikala Vs K.Sukumaran — 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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THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938

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RSA.No. 1225 of 2010 (D )

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AGAINST THE JUDGMENT & DECREE DATED 03-07-2010 IN AS 165/2007 of DISTRICT COURT, PALAKKAD

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AGAINST THE JUDGMENT & DECREE DATED 30-11-2006 IN OS 422/2005 of MUNSIFF COURT, CHITTUR

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APPELLANT(S)/APPELLANT/DEFENDANT:

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SASIKALA, W/O.MANI, AGED 40 YEARS, RESIDING AT PAYATHU VEEDU, ETHANUR VILLAGE, KODUVAYUR NO.II VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.K.SHRIHARI RAO

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SRI.R.RAJAGOPAL SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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K.SUKUMARAN, AGED 50 YEARS, S/O.K.T.KUNJUPAZHANI, RESIDING AT KAKKAYUR, NADAKKAVU, KODUVAYUR NO.II VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678001.

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BY ADV. SRI.BINOY VASUDEVAN BY ADV. SMT.P.G.BABITHA

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.1225 of 2010

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Dated this the 6^th day of October, 2016

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JUDGMENT

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~ ~ ~ ~ ~

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The appellant is the defendant in a suit for realisation of money based upon an agreement for sale entered into between the appellant and the respondent. The parties are referred to as in the judgment passed by the trial court. The plaintiff and the defendant entered into Ext.A1 agreement to sell the plaint schedule property to the plaintiff for an amount of Rs.4,10,000/- within a period of five months and the plaintiff paid an amount of Rs. 50,000/- as advance sale consideration to the defendant. According to the plaintiff, he was ready and willing to pay the balance sale consideration and to get the sale deed executed before 21.5.2005, within the period stipulated in Ext.A1. But the defendant was not willing to execute the sale deed in favour of the plaintiff after accepting the balance sale consideration. To substantiate his readiness and willingness the plaintiff was examined as

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RSA.1225/10-D :2:

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P.W.1 and Exts.A1 to A10 were marked in evidence.

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On the other hand, the defendant contended that the plaintiff was not ready and willing to pay the balance sale consideration, though she was ready and willing to execute the sale deed in favour of the plaintiff as agreed in Ext.A1. It is also contended that subsequent on Ext.A1, the husband of the defendant had entered into Ext.B1 agreement to purchase another property and had arranged a housing loan from the South Indian Bank and on the breach of contract from the part of the plaintiff Ext.B1 agreement also had been broken. To substantiate the defendant's contentions, the defendant was examined as D.W.1 and Exts.B1 to B6 were marked.

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After analysing the aforesaid evidence on record the courts below concurrently arrived at a finding that the defendant was not ready and willing to execute the sale deed. The said finding was arrived mainly on the reason that as per the agreement it was obligatory on the part of the plaintiff to make the property free from all encumbrances; but, admittedly, the mortgage in favour of the South Indian Bank was subsisting as such and the

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RSA.1225/10-D :3:

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defendant failed to redeem the mortgage till the expiry of the period provided in the agreement to execute the sale deed. The mortgage in favour of the South Indian Bank was not disputed by the defendant.

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The plaintiff has given both oral and documentary evidence to prove that he had collected necessary amount for payment of balance consideration expecting that the defendant would take all necessary steps for execution of the document on 21.5.2005 after discharging the liability which stood in favour of the South Indian Bank, Koduvayur Branch and he was present before the Sub Registry on 21.5.2005 expecting execution of the sale deed by the defendant and the said fact is evidenced by Ext.A6. The defendant in cross-examination admitted that she had not discharged the liabilities over the property and she had neither passed nor shown the original document to the plaintiff, and that admission itself is sufficient to prove that the defendant was not ready and willing to execute the sale deed within the stipulated time. Thus, the courts below are justified in arriving at a finding that the defendant was not ready and wiling to execute the sale

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RSA.1225/10-D :4:

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deed, though the plaintiff was ready to get it executed after paying the balance sale consideration.

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Coming to the entitlement of advance sale

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consideration of Rs.50,000/-, the defendant contended that the said amount was paid as earnest money and the plaintiff is not entitled to get the said amount, as he had committed breach of contract. After analysing the evidence on record, the courts below concurrently found that there is absolutely nothing to show that it was paid as earnest money. Even if it is earnest money, in the light of the earlier finding that the plaintiff has not committed breach of contract, the said argument pales to insignificant. There is no question of forfeiture of amount on breach of contract by the defendant and the courts below are justified in granting a decree for realisation of the said amount from the defendant. Thus, there is nothing illegal, improper or irregular in any of the findings in the impugned judgments under challenge. The courts below have appreciated the evidence, on record, in its correct perspective and arrived at findings, which are justifiable under law.

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RSA.1225/10-D :5:

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In the absence of any illegality or impropriety in

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the findings, this Court is not inclined to interfere with the impugned judgments under Section 100 of the C.P.C.

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Consequently, this appeal will stand dismissed.

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All pending interlocutory applications will stand dismissed.

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Sd/K.HARILAL, Judge.

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okb/Nan

Sasikala v. K.Sukumaran

Case brief

What is this about?

What did the court decide?

Sasikala v. K.Sukumaran

Case brief

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