Allowed

S.Saraswathi v. Balan and Another

Kerala HC4 Mar 2016RSA/286/2009

Case brief

AI extract

What is this about?

In a second appeal challenging a decree for specific performance of a property sales agreement, the High Court held that the plaintiffs failed to prove readiness and willingness to pay balance consideration. The court set aside the decree for specific performance but allowed the return of the advance payment with interest and interest charged on the property.

What did the court decide?

Impugned judgment reversed; plaintiffs directed to recover Rs.2,00,000 with interest at 9% per annum from date of judgment and interest on sum charged on property.

S.Saraswathi Vs Balan and Another — 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 P.B.SURESH KUMAR

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FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937

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RSA.No. 286 of 2009 (A)

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-----------------------(AGAINST THE JUDGMENT IN AS.NO. 102/2006 OF 1ST ADDITIONAL DISTRICT COURT, KOZHIKODE)

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(AGAINST THE JUDGMENT AND DECREE IN OS.NO. 28/2003 OF SUB COURT, KOYILANDY)

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APPELLANT/RESPONDENT/DEFENDANT:

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KANAKKATHERUVIL S.SARASWATHI, D/O.SREENIVASAN PILLAI, DOOR NO.24, THIRUVATHIYOOR, CHENNAI-19.

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BY ADVS. SRI.V.V.ASOKAN SMT.S.AMINA

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RESPONDENTS/APPELLANTS/PLAINTIFFS:

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1. OTTAKANDAM KUNIYIL BALAN, CHEMANCHERRY VILLAGE, CHEMANCHERY DESOM,

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KOYILANDY TALUK.

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2. OTTAKANDAM KUNIYIL KUNHIRAMAN, S/O.CHOYI, CHEMANCHERY VILLAGE,

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CHEMANCHERY DESOM, KOYILANDY TALUK.

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R1 & R2 BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2016, THE COURT ON 04-03-2016 DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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R.S.A. No.286 of 2009

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Dated 4^th March, 2016.

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J U D G M E N T

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The defeated defendant in a suit for specific performance is in appeal.

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The plaint schedule properties belong to the defendant. The case of the plaintiffs is that the defendant had agreed to sell the plaint schedule properties to them at the rate of Rs.9,000/- per cent for the plaint schedule item No.1 property and Rs.1,500/- per cent for the plaint schedule item No.2 property as per the terms of Ext.A1 agreement, after receiving a sum of Rs.20,000/- by way of advance sale consideration. As per Ext.A1 agreement, the balance sale consideration should have been paid by the plaintiffs to the defendant on or before 30.9.2002. It is alleged by the plaintiffs that though they were ready and willing to pay the balance sale consideration to the defendant and get conveyance deed in respect of the properties from her, the defendant did not convey the properties. Hence, the suit for specific performance.

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RSA No.286 of 2009

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The defendant admitted the execution of Ext.A1 agreement. She also admitted the receipt of Rs.20,000/from the plaintiffs by way of advance sale consideration. However, she contended that more than Rs.1,20,000/- had to be paid by the plaintiffs to her towards the balance sale consideration and the plaintiffs have not even offered the said amount within the time stipulated in the agreement. In other words, according to the defendant, the plaintiffs were not ready and willing to discharge their obligations under the agreement and it is due to the said reason that the properties could not be conveyed.

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The trial court declined the decree sought by

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the plaintiffs on the ground that they have not established the readiness and willingness to perform their part of the obligations under Ext.A1 agreement. However, in appeal, the appellate court reversed the decision of the trial court and decreed the suit. The defendant is thus aggrieved by the decision of the lower appellate court.

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Heard the learned counsel for the appellant as

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RSA No.286 of 2009

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also the learned counsel for the respondents.

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The learned counsel for the appellant contended that no evidence whatsoever was adduced by the plaintiffs to prove that they were ready and willing to pay the balance sale consideration during the subsistence of Ext.A1 agreement or thereafter and therefore the finding to the contrary rendered by the appellate court for reversing the decision of the trial court is perverse.

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Per contra, the learned counsel for the respondents pointed out that the defendant had to take steps to measure the properties agreed to be sold to convince the plaintiffs its extent and had to submit to the plaintiffs the documents necessary to satisfy her title over the suit properties as per the terms of the agreement and that since the performance of the obligations under the agreement by the plaintiffs was subject to the performance of the aforesaid obligations by the defendant, it cannot be contented that the plaintiffs were not ready and willing to discharge their obligations under the agreement.

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RSA No.286 of 2009

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In light of the submissions made by the learned

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counsel on either side, the following question of law is formulated for decision in the second appeal :

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“Is the finding of the appellate court that the plaintiffs were ready and willing to perform their obligations under Ext.A1 agreement supported by evidence?”

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Ext.A1 agreement is dated on 24.4.2002. As noted above, the defendant has admitted the execution of the said agreement as also receipt of the advance sale consideration. The contention raised by the defendant was only that the plaintiffs were not ready and willing to purchase the property by paying the balance sale consideration during the subsistence of the agreement. It is beyond dispute that in the light of the provision contained in section 16(c) of the Specific Relief Act, it was obligatory for the plaintiffs to aver and prove that they were ready and willing to perform their part of the obligations under the agreement. Strangely in this case, despite the fact that the readiness and willingness of the

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RSA No.286 of 2009

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plaintiffs were disputed, the plaintiffs have not adduced any evidence to establish the same except the oral testimony tendered by the second plaintiff. Ext.A1 agreement specifically recites that the plaintiffs shall pay the balance sale consideration on or before 30.9.2002. The plaintiffs have not issued any communication to the defendant before the said date expressing their readiness and willingness to pay the balance sale consideration as is usually done in cases of this nature. It is admitted that after 30.9.2002, the defendant had sent a notice to the plaintiffs stating that since the balance amount payable under the agreement has not been paid by the plaintiffs to her within the time stipulated in the agreement, she is not liable to convey the suit properties to the plaintiffs. The plaintiffs have no case that they have sent any reply to the said notice of the defendant stating that they were prepared to pay the balance sale consideration to the defendant and that it is on account of the failure on the part of the defendant to measure the property and convince the plaintiffs as to the title of the defendant over the property, they have not paid the balance

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RSA No.286 of 2009

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sale consideration to the defendant. The explanation offered by the second plaintiff while giving evidence as PW2 for not having sent any reply to the notice of the defendant is that the conveyance deed could not be obtained as the defendant was residing at the relevant time in the State of Tamil Nadu. Further, it is seen that though the balance sale consideration should have been paid by the plaintiffs as per the terms of the agreement on or before 30.9.2002, despite the fact that the defendant had issued a communication to the plaintiffs that she is not willing to convey the properties as per the terms of the agreement, the plaintiffs have not instituted the suit immediately after receipt of the notice from the defendant. Instead, it is conceded that the suit was instituted about a year later, on 18.9.2003. Further, the plaintiffs have not produced any documents to show that they had with them the balance amount payable to the defendant during September, 2002 or any time thereafter. From the aforesaid facts and circumstances, the only inference possible is that the plaintiffs were not ready and willing to perform their obligation under the

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RSA No.286 of 2009

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agreement. The finding rendered by the appellate court to the contrary is not supported by any evidence and hence perverse.

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True, the defendant has a case that time was

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the essence of the contract. A perusal of the decision of the lower appellate court indicates that what is considered by the lower appellate court in the appeal is the question as to whether time was the essence of Ext.A1 agreement. The lower appellate court found that in a contract for sale of immovable property in India, time is not normally the essence of the contract and it is on that basis, the decision of the trial court was reversed and the suit was decreed by the appellate court. True, time is normally not the essence of a contract for sale or purchase of immovable property in India, but that does not mean that the plaintiff in a suit of this nature can ignore the stipulation as regards time for payment of balance sale consideration and get the conveyance deed by paying the balance sale consideration at his whims and fancies. Even though time is not the essence of the contract in a given case, the court can certainly reckon the time if any, prescribed by

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RSA No.286 of 2009

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parties in the contract for performance of their obligations for the purpose of deciding the readiness and willingness of the parties. If the purchaser is ready and willing to perform his part of the obligations and if he could not do so on account of the breach of the obligations on the part of the vendor, the specific performance cannot be declined merely for the reason that time for payment of the balance sale consideration as fixed in the agreement has expired. But, in a case where the vendor performs all his obligations under the contract within the time stipulated and the plaintiff does not even offer the balance sale consideration to the defendant during the subsistence of the contract or thereafter, the court can certainly make an inference that the plaintiff was not ready and willing to perform his part of the obligations. In the instant case, if, as a matter of fact, the plaintiffs were ready and willing to pay the balance sale consideration and they have not paid the same on account of the breach committed by the defendant as regards her obligations under the contract, they could have certainly given a communication to the defendant calling upon her to take

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RSA No.286 of 2009

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steps to discharge her obligations under the contract. As noted above, the explanation offered by the plaintiffs for not purchasing the property by paying the balance sale consideration was only that the conveyance deed could not be obtained from the defendant as she was not available in the State at the relevant time. As such, the question as to whether time was the essence of the contract or not did not arise for consideration in this case.

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It is seen that though the trial court declined the decree for specific performance sought for by the plaintiffs, they were not granted a decree for return of the advance sale consideration admittedly paid by them to the defendant. It is beyond dispute that the advance sale consideration of Rs.20,000/- was paid by the plaintiffs to the defendant on 24.4.2002. Since the advance amount was paid about 14 years ago and since the defendant had made use of the said amount all these years, interests of justice demand that the plaintiffs shall be paid something more in the place of Rs 20,000/- paid by them to the defendant as early as on 24/4/2002. In this

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RSA No.286 of 2009

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context, the learned counsel for the appellant has readily offered that she is prepared to pay, having regard to the value of money, a sum of Rs.2,00,000/- (Rupees two lakhs only) to the plaintiffs.

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In the result, the question framed for decision in the second appeal is answered in favour of the appellant. Consequently, the impugned judgment of the lower appellate court is set aside and O.S. No.28 of 2003 on the file of the Sub Court, Koyilandy is decreed permitting the plaintiffs to recover a sum of Rs.2,00,000/- from the defendant with interest at the rate of 9% per annum from the date of this judgment charged on the plaint schedule property. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

S.Saraswathi v. Balan and Another

Case brief

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S.Saraswathi v. Balan and Another

Case brief

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