Partly allowed

Puzhakkal Appukuttan v. K. Girish Kumar

Kerala HC26 Feb 2018RFA/753/2011

Case brief

AI extract

What is this about?

This appeal challenged a decree for specific performance of an agreement for sale of property by the respondent. The High Court held the respondent failed due to lapse in payment and delay. The specific performance decree was set aside; the appellant directed to refund advance with interest.

What did the court decide?

Specific performance decree set aside. Appellant directed to pay respondent Rs.1,40,000 with interest at 6% p.a. from 8.2.2008. Decree charged on property.

Puzhakkal Appukuttan Vs K. Girish Kumar — Specific Performance | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939

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-------------------AGAINST THE JUDGMENT AND DECREE DATED 12-08-2011 IN OS 438/2009 OF I ADDL.SUB COURT, KOZHIKODE

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APPELLANT/DEFENDANT:

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PUZHAKKAL APPUKUTTAN, (DIED) AGED 70 YEARS, S/O.KUTTAYI,RESIDING AT PUZHAKKAL HOUSE,, NEAR IMBICHUKUTTAN VAIDYAR KAVU,PANNIYANKARA AMSOM, DESOM,ELAYIDATHUKUZHIPARAMBA,KALLAI.P.O,, KOZHIKODE-673003.- ADDITIONAL A2 TO A7 IMPLEADED.

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ADDL. A2 - KALYANIKUTTY @ PREMA, AGED 65 YEARS, W/O.APPUKKUTTAN ,, A3 - SHEENA AGED 45 YEARS, D/O.LATE APPUKKUTTAN ,, A4 - LEENA, AGED 39 YEARS, D/O.LATE APPUKKUTTAN ,, A5 - SHAJI, AGED 38 YEARS, S/O.LATE APPUKKUTTAN ,, A6 - PRAJEESH, AGED 32 YEARS, S/O.LATE APPUKKUTTAN ,, A7 SARITHA, AGED 30 YEARS, D/O.LATE APPUKKUTTAN (ALL ARE RESIDING AT PUZHAKKAL HOUSE, NEAR IMBICHUKUTTAN VAIDYAR KAVU,PANNIYANKARA AMSOM, DESOM,ELAYIDATHUKUZHIPARAMBA,KALLAI.P.O,, KOZHIKODE-673003).

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LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.A2 TO A7 VIDE ORDER DATED 12.3.2015 IN I.A.448/15.

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BY ADVS.SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR

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RESPONDENT/PLAINTIFF:

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--------------------K. GIRISH KUMAR,AGED 36 YEARS, S/O.APPUTTY,RESIDING AT 21/2674,PRETTY DALE, PERUMUNDAM VAYAL,PANNIYANKARA AMSOM DESOM,, KALLAI.P.O,KOZHIKODE-673003.

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R1 BY ADV. SRI.A.RANJITH NARAYANAN R1 BY ADV. SRI.SHYAM PADMAN R2 BY ADV. SRI.S.K.SAJU

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-022018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.ABRAHAM MATHEW, J.

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R.F.A.No.753 of 2011

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Dated this the 26^th day of February, 2018

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JUDGMENT

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The appellant, whose legal representatives are the additional appellants was the defendant and the respondent the plaintiff in a suit for specific performance of an agreement for sale. The plaint schedule property belonged to the latter. On 7.8.2007 he entered into an agreement with the respondent for its sale for Rs.5,90,000/- and received Rs.65,000/- in advance towards the sale consideration. The respondent undertook to pay Rs.75,000/- more on or before 7.10.2007. The period of agreement was six months. He paid Rs.75,000/- as agreed by him, which was paid in installments at the request of the appellant. He has been ready and willing to perform his part of the contract. But the appellant failed to comply with his request to execute sale deed after receiving the balance sale consideration. He issued him a notice on 9.2.2008 demanding him to perform his part of the contract. He sent a reply raising false contentions. He also sent another notice informing him that he cancelled the agreement and appropriated the amount paid in

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R.F.A.No.753 of 2011 2

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advance towards his loss. On these allegations the respondent prayed for specific performance of the agreement and in the alternative return of the amount the appellant received in advance with interest at 18% per annum from 14.11.2007 and damages of Rs.2 lakh. In his written statement, the appellant contended that he entered into the agreement so that he might marry off her daughters. The initial agreement was to pay Rs.1,40,000/- in advance towards the sale consideration. But the respondent had no means to pay it; he had only Rs.65,000/- with him. So, that amount was paid on the date of the agreement; he undertook to pay the balance amount of Rs.75,000/- before 7.10.2007. He paid it only in installments. The last installment of Rs.10,000/- was paid long after the stipulated date. The transaction was not completed because the respondent had not been ready and willing to perform his part of the contract. Because of the breach committed by him the appellant could not marry off his daughter. He prayed for the dismissal of the suit. The learned Sub Judge held that the respondent has been ready and willing to perform his part of the contract and it was the appellant who committed breach of the contract. Accordingly, he passed a decree for specific performance. This is challenged in this appeal.

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R.F.A.No.753 of 2011 3

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The following points arise for consideration.

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i) Whether the respondent has been ready and willing to perform his part of the contract ?

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ii) Whether the finding of the trial court that the respondent is entitled to a decree for specific performance is correct ?

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Heard the learned counsel for the appellant and the respondent.

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There is no dispute that the appellant and the respondent entered into Ext A1 agreement for sale of the plaint schedule property belonging to the former for Rs.5,90,000/- and there was a payment of Rs.65,000/- on the date of the agreement. The respondent undertook to pay Rs.75,000/- on or before 7.10.2007. He paid Rs.50,000/- on 9.8.2007 and Rs.15,000/- on 16.8.2007. He paid the balance amount of Rs.10,000/- only on 14.11.2007. That was more than one month after the stipulated date. The learned Sub Judge held that there was no fault on the part of the respondent because the appellant received the amount without any objection. In the light of the contention that the respondent was not able to pay the balance sale consideration the

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R.F.A.No.753 of 2011 4

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inability of the respondent even to pay the meagre amount of Rs.10,000/- becomes very relevant. Instead of disclosing the truth that there was delay in paying the amount of Rs.10,000/-, in his plaint he stated that he paid the 'balance amount of Rs.10,000/-towards Rs.75,000/- as agreed'. Admittedly, this is false. In his crossexamination the respondent (PW1) admitted that there was fault on his part, though he denied the suggestion that was because of his financial difficulty. What could be the reason ? He paid Rs.50,000/- on 9.8.2007 and Rs.15,000/- on 16.8.2007. According to him it was at the request of the appellant he paid those two amounts though he was bound to pay the total amount on 7.10.2007. This does not appear to be probable in the circumstances of the case. It is clear that he was unable to pay even Rs.75,000/- in a lump as undertaken by him in the agreement.

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The respondent (PW1) deposed that he sold gold ornaments to enable him to pay a part of the balance sale consideration; his sister gave him the rest of the amount. This is a testimony anybody can give. Except the interested testimony of PW1 there is nothing to prove it. This evidence should be appreciated in the light of his admission that he could not even pay the whole amount of Rs.75,000/- as agreed by him

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R.F.A.No.753 of 2011 5

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before the stipulated date. The finding of the learned Sub Judge that the financial capacity of the plaintiff is not disputed is patently wrong.

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The trial court also found that there was no evidence to prove

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that the appellant had handed over the documents relating to the property to the respondent within the period mentioned in Ext A1 agreement. The court failed to take notice of the fact that the appellant was not bound to hand over her title deed to the respondent before she was paid the balance sale consideration. So the learned Sub Judge fell in error in holding that the appellant committed breach when he failed to hand over the documents relating to the property to the respondent.

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The transaction should have been completed by 7.2.2008. The respondent caused Ext A2 lawyer notice dated 8.2.2008 to be sent to the appellant demanding him to perform his part of the contract. As seen from the postal receipt produced along with the notice, it was sent on 9.2.2008. The postal acknowledgment card produced along with the notice shows that it was received by the appellant; but the date of receipt is not known. Meanwhile, the appellant caused Ext A3 lawyer's notice dated 14.2.2008 issued to the respondent informing him that he committed breach of the contract and the amount paid in advance

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R.F.A.No.753 of 2011 6

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towards the sale price was appropriated towards the loss sustained by the appellant. Thereafter, on 21.2.2008 he sent a reply to Ext A2 notice sent by the respondent's counsel. It is seen from Ext B1 encumbrance certificate dated 24.2.2007 and Ext B2 possession certificate dated 31.12.2007 that the appellant had taken steps towards the completion of the transaction. He was not supposed to hand over these documents to the respondent before he was paid the balance sale consideration.

¶37

The learned Sub Judge held that the respondent admitted that there was some fault on his part. But it is not known what was the fault committed by him. It appears that the appellant (DW1) made the admission without knowing its significance. His specific case in the pleadings in the witness box is that he had done what he was bound to do under the agreement. It was for the respondent to prove that he has been ready and willing to perform his part of the contract. In no uncertain terms he admitted that there was fault on his part. It is in spite of this, the learned Sub Judge took notice of the testimony of DW1 and held that the respondent is entitled to a decree for specific performance.

¶38

The appellant has a case that he entered into the agreement so that he might marry off his daughters and because of the breach

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R.F.A.No.753 of 2011 7

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committed by the respondent he could not do so. This finds mention in Ext A3 notice and Ext A4 reply notice. In his examination in-chief (DW1) he deposed to it. There was no cross-examination.

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The suit was instituted on 1.7.2009 ie about 1 ½ years after the respondent issued notice demanding performance of the contract. The respondent would say that there were negotiations between the parties, which was the reason for the delay. The respondent also admitted that there were some negotiations. Merely because there were negotiations the court cannot hold that the delay is irrelevant. The long delay in instituting the suit even after the appellant refused to execute the sale deed also indicates that the respondent was not ready to purchase the property after paying the balance sale consideration.

¶42

To sum up, the respondent could not pay in a lump the amount of Rs.75,000/- which he had agreed to pay. He was unable to pay even the meagre amount of Rs.10,000/-. The inordinate delay in instituting the suit after the appellant refused to execute sale also speaks against him. The purpose for which the appellant wanted to sell the property was defeated by the delay caused by the respondent. This is not a fit case to grant a decree for specific performance.

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R.F.A.No.753 of 2011 8

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Now the question is whether the respondent is entitled to the refund of the amount paid in advance towards the sale consideration. The appellant would say that because of the breach committed by the respondent he could not marry off his daughters and he suffered a loss. It certainly caused him hardship and mental agony. But there is no evidence to show that he sustained any monetary loss. He is not entitled to appropriate the amount received towards the sale consideration in the absence of any allegation of his sustaining monetary loss. He is bound to repay it with interest at 6% per annum from 7.2.2008.

¶45

In the result, this appeal is allowed in part. The decree of the trial court is set aside and a modified decree is passed as follows: The appellant is directed to pay the respondent Rs.1,40,000/- (Rupees one lakh forty thousand only) with interest at 6% per annum from 8.2.2008 till realisation. The decree amount is charged on the plaint schedule property. The parties will suffer their costs.

¶46

K.ABRAHAM MATHEW JUDGE

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Puzhakkal Appukuttan v. K. Girish Kumar

Case brief

What is this about?

What did the court decide?

Puzhakkal Appukuttan v. K. Girish Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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