Dismissed

Satya Narayana v. Prabha Mony K.K

Kerala HC9 Feb 2018RFA/21/2016

Case brief

AI extract

What is this about?

In this special first appeal, the appellants challenged the trial court's decree for specific performance of an agreement for sale. The High Court upheld the decree, finding the plaintiff proved ready and willing to perform while the defendants were not. The procedural defect in service of summons was deemed insufficient to set aside the decree.

What did the court decide?

Appeal dismissed; original decree for specific performance upheld.

Satya Narayana Vs Prabha Mony K.K — Specific Performance | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

¶4

FRIDAY, THE 9TH DAY OF FEBRUARY 2018 / 20TH MAGHA, 1939

¶5

RFA.No. 21 of 2016

¶6

AGAINST THE JUDGMENT AND DECREE IN OS 34/2013 of ADDL.SUB COURT,NORTH PARAVUR DATED 18-08-2015

¶7

APPELLANTS/DEFENDANTS

¶8

1 SATYA NARAYANA ALIAS SATHYANARAYAN GUTTULA, AGED 58 YEARS, S/O.G.SAHIB, UNNISAM PARAMBIL, PALLURUTHY, KOCHI-682 006, NOW RESIDING AT 4/18, SANKARAYAGUDEM, ANDRA PRADESH, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER RANI, AGED 47 YEARS,D/O.G.SAHIB AND

¶9

W/O.RAJANI RAMA RAO APPARI RESIDING AT NO.1-83-30, MIG-50, SECTOR -V, DOUBLE ROAD, MVP COLONY, VISAKHAPATNAM, ANDHRA PRADESH -530 017, AND NOW AT CC 20/279, UNNISAM PARAMBIL, PALLURUTHY, KOCHI-682 006.

¶10

2 RANI, AGED 47 YEARS,

¶11

D/O.G.SAHIB, H.No.1-83-30, MIG-50, SECTOR -V, DOUBLE ROAD, MVP COLONY, VISAKHAPATNAM, ANDHRA PRADESH -530 017, NOW RESIDING AT UNNISAM PARAMBIL, PALLURUTHY, KOCHI-682 006.

¶12

3 BABY, AGED 40 YEARS,

¶13

D/O.G.SAHIB, UNNISAM PARAMBIL, PALLURUTHY, KOCHI-682 006 NOW RESIDING AT DOOR NO.2-10-25, BESIDE STUDIO, MINDHI VILLAGE, NEAR MINDHI IDEAL SCHOOL, VISAKHAPATNAM, ANDRA PRADESH - 530 012.

¶14

4 G.ROOPAVATHI, AGED 50 YEARS, W/O.LATE CHINNA SATYA NARAYANA, C/O.K.SARADHA, FLAT NO.47, DOOR NO.3 194/4, CHAITHANYAPURI COLONY, OLD MADHURAWAND P.M, PALAM POST, VISAKHAPATNAM, ANDHRA PRADESH, NOW RESIDING AT H NO.17-30, BABUJI NAGAR, MADHURAWAND, VISAKHAPATNAM, ANDRA PRADESH- 530 048.

¶15

5 G.ANANDHKUMAR ALIAS GUTTULA ANAND KUMAR, AGED 35 YEARS, S/O.LATE CHINNA SATYA NARAYANA, C/O.K.SARADHA, FLAT NO.47, DOOR NO.3 194/4, CHAITHANYAPURI COLONY, OLD

¶16

MADHURAWAND PM, PALAM POST, VISAKHAPATNAM, ANDHRA PRADESH, RESIDING AT DOOR NO.10-50-68, JSM COLONY, NEAR SEVEN HILLS HOSPITAL, MAHARANIPETA, VISAKHAPATNAM CITY AND DISTRICT, ANDHRA PRADESH-530 002, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER GUTTULA RUPAVATHI, W/O.LATE G.SATYA NARAYANA, AGED 50 YEARS, H.NO.17-30, BABUJI NAGAR, MADHURAWADA, VISAKHAPATNAM,

¶17

RFA.No. 21 of 2016 2

¶18

ANDHRA PRADESH-530 048.

¶19

6 G. RAJESH BABU GUTTULA, AGED 34 YEARS, S/O.LATE CHINNA SATYA NARAYANA, DEVIPRASADAM, S.H.MOUNT

¶20

P.O., KOTTAYAM, KERALA-686 006, RESIDING AT C/O.K.SARADHA, FLAT NO.47,DOOR NO.3 194/4, CHAITHANYAPURI COLONY, OLD MADHURAWAND PM, PALAM POST, VISAKHAPATNAM, ANDHRA PRADESH, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER G.ROOPAVATHI, W/O.LATE CHINNA SATYA NARAYANA, AGED 50 YEARS, C/O.K.SARADHA,

¶21

FLAT NO.47, DOOR NO.3 194/4, CHAITHANYAPURI COLONY, OLD MADHURAWAND PM, PALAM POST, VISAKHAPATNAM, ANDHRA PRADESH, RESIDING AT PLOT NO.49, DOOR NO.3-44/1/1, OLD MADHURAWADA, CHAITHANYAPURI COLONY,

¶22

VISAKHAPATNAM,ANDHRA PRADESH

¶23

7 G.ANITHA @ DUNABOYENA ANITHA, AGED 31 YEARS, D/O.LATE CHINNA SATYA NARAYANA, C/O.K.SARADHA, FLAT NO.47,

¶24

DOOR NO.3,194/4,CHAITHANYAPURI COLONY, OLD MADHURAWAND PM, PALAM POST, VISAKHAPATNAM, ANDHRA PRADESH, NOW RESIDING AT D.NO.2-30/1, RAJEV NAGAR COLONY, NEAR LAKSHMI NARAYANA TEMPLE, OLD DAIRY FARM, VISAKHAPATNAM, ANDHRA

¶25

PRADESH-530 040, REPRESENTED BY HER POWER OF ATTORNEY HOLDER GUTTULA RUPAVATHI, W/O.LATE G.SATYA NARAYANA, AGED 50 YEARS, H NO.17-30, BABUJI NAGAR, MADHURAWADA , VISAKHAPATNAM, ANDHRA PRADESH-530 048

¶26

BY ADVS.SRI.SAJI.P.JOSEPH SMT.G.MINI (PALATH) SRI.A.K.ABDUL LATHEEF SMT.K.A.SABITHA SRI.K.T.SAJU

¶27

RESPONDENT/PLAINTIFF:

¶28

PRABHA MONY K.K, AGED 52 YEARS, W/O.K.P.CLEMENT, RESIDING AT G.O.QUARTER NO.III/15, KAKKANAD, VAZHAKKALA VILLAGE, THRIKKAKKARA MUNICIPALITY, ERNAKULAM (FROM KONATHU PUTHENVEEDU, KALLIMEL MURIYIL, VETTIYAR VILLAGE, MAVELIKKARA).

¶29

BY ADVS. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA)

¶30

THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶31

cms

¶32

K.ABRAHAM MATHEW J.

¶33

R.F.A.No.21 of 2016

¶34

Dated this the 9^th day of February, 2018

¶35

JUDGMENT

¶36

The defendants in O.S.No.34 of 2013 on the file of Additional Sub Judge, North Parur are the appellants. The suit was instituted by the sole respondent for specific performances of an agreement for sale. The parties are referred to as plaintiff and defendants. Defendants 1 to 4 are the children of one G.Sahib to whom the plaint schedule property belonged. On his death the property devolved on them. On 3.5.2012 the plaintiff and defendants 1 to 4 entered into Ext B1 agreement for sale. The consideration was Rs.2,60,000/- per cent. The plaintiff paid Rs.One lakh in advance towards the sale consideration. The period of agreement was six months. On 29.10.2010 the plaintiff issued a notice to the defendants demanding them to perform their part of the contract. The notices were returned with the endorsement 'unclaimed'. Thereupon, the plaintiff instituted the suit. Pending the suit the second defendant died. Additional defendants 5 to 8 are his legal heirs. Defendants 1, 3 and 4 contended that the transaction was not completed because the plaintiff had not been ready and willing to perform her part of the contract. The court after the trial found that the plaintiff had been ready and willing to perform her part of the contract and accordingly, it decreed the suit. This is challenged.

¶37

Heard the learned counsel for the appellants and the respondent.

¶38

The plaint schedule property is situated in Aluva in Ernakulam district. Admittedly, the defendants were residing outside Kerala. There is no dispute that defendants 1 to 4 executed Ext B1 agreement for sale. The only

¶39

R.F.A.No.21 of 2016 2

¶40

contention is that the plaintiff has not been ready and willing to perform her part of the contract.

¶41

Before the suit was instituted the plaintiff sent to defendants 1 to 4 Ext A4 series notices. Ext A3 series are the postal receipts. Ext A4 postal articles were returned with the endorsement 'unclaimed'. It is thereafter the plaintiff instituted the suit. The plaintiff was examined as PW1. She has deposed that she has been ready and willing to perform her part of contract. In the cross-examination it was brought out that she, who is a teacher, had withdrawn Rs.Eleven lakhs from her Provident Fund Account and she had the balance amount with her so that she might pay the balance sale consideration. There is nothing to disbelieve it.

¶42

After the issuance of Ext A4 series notices defendants 3 and 4 issued Ext A5 notice dated 2.11.2012 informing the plaintiff about their readiness and willingness to perform their part of the contract. Further they informed the plaintiff that the other defendants were not ready and willing to do so. Defendants 3 and 4 requested the plaintiffs to wait for some more time or to receive back the amount of Rs.One lakh paid by defendants 1 to 4 towards the sale consideration. So it appears that the defendants could not execute the sale deed because there was dispute among themselves. It is also pertinent to note that in response to Ext A5 notice the plaintiff issued Ext A6 notice dated 13.12.2011 asking them to inform her before 31.1.2013 the date on which the sale deed could be executed. But there was no response.

¶43

Learned counsel for the appellants submits that the amount received towards sale consideration was repaid by them by way of two demand drafts.

¶44

R.F.A.No.21 of 2016 3

¶45

That may be true. But the plaintiff did not encash them. She was not bound to receive back the amount.

¶46

The respondent/plaintiff has succeeded in proving that she has been

¶47

ready and willing to perform her part of the contract, and defendants 1 to 4 have not been.

¶48

Learned counsel further submits that there was no service of summons of the additional defendants 5 to 8 who are the legal representatives of deceased second defendant. The summons was issued at their Visakhapatanam address. But the summons was published in Kerala only. That is a procedural irregularity alone. That alone cannot be a ground to set aside the decree. I find no reason to disagree with the trial court that the respondent is entitled to a decree for specific performance.

¶49

In the result, this appeal is dismissed. The parties shall bear their costs.

¶50

Sd/-

¶51

K.ABRAHAM MATHEW JUDGE

¶52

cms

¶53

/True copy/ P.S.to Judge

Satya Narayana v. Prabha Mony K.K

Case brief

What is this about?

What did the court decide?

Satya Narayana v. Prabha Mony K.K

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Rukku Polymers Vs the Catholic Syrian Bank

K.K.Padmakumar Vs Abraham Eapen

Ratnakaran Vs Prasannakumari

Shafeeq Vs State of Kerala

Kandathiparambu Sri.Bhuvameswari Devaswm Vs P.Ambika

Sasi Vs Subashini