This appeal challenges the decree in a suit for specific performance of a sale agreement. The High Court dismissed the appeal upholding the lower court's finding that the plaintiffs were ready and willing to perform, while the defendants arbitrarily delayed sale deed execution.
The appeal is dismissed. Parties to suffer their 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 A.HARIPRASAD
THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940
RFA.(INDIGENT) No. 295 of 2018
AGAINST THE JUDGMENT AND DECREE DATED 30-07-2016 IN OS NO. 128/2012 of SUB COURT, MANJERI
APPELLANT/ADDL.DEFENDANT NO.3:
VAYANKARA NIRMALA DEVI, AGED 54 YEARS, W/O.LATE BALAKRISHNAN NAIR, PALAKKAD TALUK, PARALI VILLAGE, THENOOR PO.
BY ADVS. SRI. T.K. RADHAKRISHNAN SMT.CHITRA R.SHENOY SRI.HARIKRISHNAN
RESPONDENTS/PLAINTIFFS 1 & 2, DEFENDANT NO.2 & ADDL.DEF NOS.4,5 & 6:
RFA (Indigent) No.295/2018
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R1 & R2 BY ADV. SRI. R. RAJESH KORMATH
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Appellant is the 3rd defendant in a suit for specific performance decreed against her and other defendants. She is the legal representative of deceased 1st defendant. Other legal representatives of 1st defendant are defendants 4 to 6. The plaint schedule property belongs to defendants 1 and 2. They agreed to sell it to the 1st plaintiff for a consideration of Rs.9,75,000/- and executed Ext.A1 contract for sale on 17.12.2009. 1st plaintiff paid Rs.3,25,000/- as advance towards the sale consideration. Defendants agreed that they would execute the sale deed in respect of the property after closing a loan outstanding towards Manjeri Service Cooperative Bank. They also agreed to handover all the documents on or before 30.12.2009. On receipt of Rs.1,25,000/- more towards the sale consideration, the defendants put the 1st plaintiff in possession of the property and also permitted him to take income from the property. According to the plaint averments, the 1st plaintiff was always ready and willing to perform his part of the contract. Though the defendants had paid off the entire loan amount, they did not get the documents back and a release deed from the bank. In the meanwhile, the fair value of the property
RFA (Indigent) No.295/2018
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had been fixed exorbitantly. 1st defendant therefore filed an application before the District Collector concerned to get the fair value reduced. Defendants 1 and 2 agreed to execute a sale deed in respect of the property after reduction of the fair value by the authorities. Thereafter, the parties entered into another agreement on 01.07.2010 which is marked as Ext.A2, wherein also the defendants agreed to execute the sale deed. On one pretext or the other the sale was prolonged at the instance of the defendants. Hence the suit for specific performance of Ext.A1 agreement.
were impleaded. Defendants 1 and 2 filed a joint written statement contending that they had agreed to sell the property to the plaintiffs and Exts.A1 and A2 agreements are also admitted. According to them, the actual sale price was Rs.9,90,000/- and the plaintiffs did not pay the balance sale consideration of Rs.20,000/-. They also admit that fair value of land was fixed at an exorbitant rate and steps were taken to get it reduced. It is the contention of the defendants that despite sending registered notice (Ext.A22) on 15.12.2011 rescinding the contract, the plaintiffs did not send a reply. The suit is liable to be dismissed.
and defendants. Exts.A1 to A25 are the documents produced by the plaintiffs. No document was produced by the defendants.
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below wrongly decreed the suit ignoring the fact that the plaintiffs were not ready and willing to perform their part of the contract. According to the learned counsel for the appellant, the 1st defendant while going out for undertaking a treatment had intimated the 1st plaintiff by Ext.A19 registered letter that he had to get the document executed on an early date. In reply to this contention, learned counsel for the plaintiffs/contesting respondents contended that pursuant to Ext.A19, a power of attorney was got executed at the instance of the plaintiffs in favour of the 2nd defendant. It is also the contention of the appellants that on delaying the performance, Ext.A22 notice was issued at the behest of the 1st defendant for which no reply was sent by the plaintiffs despite contending that they intended to rescind the contract. In answer to this contention, learned counsel for the plaintiffs would contend that the entire sale consideration was paid as is evident from Exts.A1 and A2 and the plaintiffs were put in possession of the property. What was remaining was only to execute a document and that should have been done by the defendants. It is averred and proved by PW1 that he was ready and willing to perform his part of the contract. The contention raised by the appellant that Rs.9,90,000/- was the sale consideration fixed between the parties is not borne out from any records. In fact that contention is against the written terms in Exts.A1 and A2.
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In the result, the appeal is dismissed. Parties are directed to
suffer their costs.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD
Sd/- A.HARIPRASAD JUDGE
RFA (Indigent) No.295/2018
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RFA (Indigent) No.295/2018
The order dated 08.04.2022 in RFA (Indigent) No.295/2018 that "The appeal was disposed of on merit as early as on 06.09.2018. At that time, this Court failed to notice the fact that permission was granted to appeal as an indigent person. Hence, the direction was not issued under Rule 14 of Order XXXIII CPC to recover the court fee. Hence, the same will stand incorporated by directing the appellant to pay the court fee within two weeks from today, failing which, it shall be recovered under Rule 14 of Order XXXIII CPC by sending a copy of the judgment and decree to the concerned District Collector" is incorporated to the judgment dated 06.09.2018 in RFA (Indigent) No.295/2018.
Sd/-
JOINT REGISTRAR
cks
2 issues framed by the court
Whether the plaintiffs were ready and willing to perform their part of the contract despite alleged delays in execution.
Whether the lower court correctly found that the appellants delayed performance arbitrarily preventing specific performance.
VAYANKARA NIRMALA DEVI
N. SREEPRAKASH
SHEFA SREEPRAKASH
VISWANATHAN
K. SATHYABHAMA
DIVYA
A. HARIPRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
