An appeal against a judgment dismissing a suit for specific performance. The appellant failed to prove he was ready and willing to pay the balance consideration. The appeal is dismissed.
The appeal fails and is dismissed. No order as to costs.
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R.F.A. No. 436 of 2009
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941
RFA.No.436 OF 2009
AGAINST THE JUDGMENT AND DECREE IN OS 73/2006 DATED 13-02-2009 OF PRINCIPAL SUB COURT,KOLLAM
APPELLANT/PLAINTIFF:
UNNIKRISHNA PILLAI AGED 39 YEARS, S/O.ACHUTHAN PILLAI, KANJIKKAL VEEDU, PERUMATHURA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK.
BY ADVS. SRI.SHABU SREEDHARAN SRI.N.A.JOHN JACOB SRI.C.K.PRASAD
RESPONDENTS/DEFENDANTS:
1 GOPALAKRISHNA PILLAI, S/O.KUTTAPPA PANICKER, KRISHNA BHAVANAM VEETTIL, VARAVILA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK.
2 VALSALA KUMARI D/O.CHELLAMMA, KRISHNA BHAVANAM VEETTIL, VARAVILA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK.
R1 BY ADV. SRI.B.MOHANLAL
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
24-10-2019, THE COURT ON 26-11-2019 DELIVERED THE FOLLOWING:
R.F.A. No. 436 of 2009
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CR
MARY JOSEPH, J.
Dated this the 26th day of November, 2019
JUDGMENT
This appeal is against the judgment and decree dated 03.02.2009 of Principal Sub Court, Kollam in O.S No.73 of 2006. A suit for specific performance of agreement for sale executed among the plaintiff and defendants on 11.12.2004 was filed by the plaintiff against defendants. The case of the plaintiff was that as per the agreement for sale executed among himself and the defendants, 33½ cents of property comprised in Re-Sy.No.703/9 and 703/14-1 of Clappana village obtained by the defendants jointly by virtue of sale deed Nos.3748/94, 3749/04 and 3470/98 have been agreed to be sold to the plaintiff for a total sale consideration of Rs.5¼ lakhs. Rs.1,50,000/- was paid by the plaintiff to the defendants as advance sale consideration on 11.12.2004 itself. Time limit of six months from the date of agreement was fixed for executing the sale deed. Though the plaintiff was ready and willing to pay the balance sale consideration within 6 months itself, in view of the request of the
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defendants for extended time, his part could not be performed. According to the plaintiff though the defendants were requested to appear before the Sub Registry, Oachira alongwith the relevant documents pertaining to title of the property proposed to be sold, the execution of the sale deed could not be accomplished for his failure to attend there. The plaintiff came to know that the defendants are taking hasty steps to sell the properties to strangers in violation of the agreement for sale executed by them. The suit in question was filed seeking for a direction to the defendants to execute the sale deed in favour of the plaintiff after receiving the balance sale consideration. An order of injunction was also sought for restraining the defendants from alienating the plaint schedule property or from committing any wastes and mischiefs therein.
joint written statement filed, have contended that they are ready and willing to perform the part assigned to them by the terms of the agreement for sale and are ready and willing to execute the sale deed in favour of the plaintiff. Despite approaching the plaintiff several times and expressing their willingness to execute the sale deed on or before 10.06.2005, the plaintiff has failed to pay the balance sale consideration and in that context, the advance sale consideration paid by him was forfeited as per the terms of the
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agreement for sale. The documents pertaining to the properties proposed to be sold were handed over to the plaintiff at the time of execution of the agreement itself. On 10.06.2005, the date of expiry of six months' period provided in the agreement for sale, though the defendants were personally present before the Sub Registry Office, Oachira and waited there till 5 pm with a view to execute the sale deed, despite any information transpired to him, the plaintiff did not turn up to perform his part and therefore the execution of the sale deed failed. Though mediators intervened with a request for grant of further time and time was extended for two days, the execution of sale deed was not materialised. On 13.06.2005, the defendants made themselves available personally before Sub Registry Office, Oachira and remained there till 5 p.m, but the plaintiff willfully evaded to present there personally to execute the sale deed. The original title deed and other documents related to the property proposed to be sold to the plaintiff were also handed over by the defendants. It was also stipulated in the agreement for sale that if execution of sale deed was not accomplished within the time granted, the amount given as advance sale consideration to the defendants will be forfeited. Therefore, knowingly that the failure of the plaintiff to perform his part of the contract would result in forfeiture of the amount paid as advance
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sale consideration, the plaintiff entered into the agreement. According to the defendants absolutely no cause of action is there for the plaintiff to get any of the reliefs sought for in the suit. Accordingly, the suit was sought to be dismissed.
determination :
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sale consideration at the time when the agreement for sale was entered on 11.12.2004.
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availed from the Bank by the defendants that an equitable mortgage of the properties in question has been created by him in favour of the Bank. PW4 was examined on 26.08.2008. According to PW4 even as on that date, the release deed has not been obtained by the defendants from the bank. According to PW4, the loan firstly availed by the 1st defendant by deposit of title deeds relating to the property was on 15.04.1994. It was closed on 16.03.2006 and the title deeds were received back on 05.11.2006. She has reiterated that the original document relating to the property was in the custody of the bank from 11.12.2004 till 05.11.2006. Therefore, the factum established from the evidence of PW4 was that the document pertaining to the title of some of the properties proposed to be sold were deposited with the bank as on date of execution of agreement for sale itself and was in the custody of the bank from 11.12.2004 till 05.11.2006. Therefore, the version of defendants that they had given the title deed and other documents to the plaintiff to establish perfection of title on the date of execution of agreement for sale itself is unbelievable. It is stipulated in the agreement for sale that only when the defendants have produced the relevant documents pertaining to the property proposed to be sold, the plaintiff shall cause to pay the balance sale consideration to get the sale deed executed in his favour. Therefore the
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contention of the learned counsel was that the documents pertaining to the properties sought to be sold being in the custody of the bank and not with the defendants at the relevant time, they
are the breakers of the contract. According to the learned counsel, the plaintiff was ready and willing to pay the balance sale consideration and get the sale deed executed in his favour, but due to failure of the defendants to convince about his valid and perfect title of the property at the relevant time, his part of the contract could not be performed by him. According to the learned counsel the trial court failed to appreciate the evidence adduced by the plaintiff in its proper perspective and in view of that wrong perception of evidence, the judgment and the decree under challenge were rendered. According to him interference of the judgment is warranted in the circumstances.
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According to him, for failure of the plaintiff to pay the balance sale consideration within the time stipulated in the agreement for sale, the suit was dismissed by the trial court. It is canvassed by the learned counsel that interference with the impugned judgment is totally uncalled for.
above, it is apposite to extract Clause (c) of Section 16 of the Specific Relief Act, 1963 (for short 'the Act') hereunder.
“ 16. Personal bars to relief
Specific performance of a contract cannot be enforced in favour of a person-
(a) xxxxxxxxxx
(b) xxxxxxxxxx
(c) [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation : For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction.”
9. The words “who fails to prove” incorporated in the
Section was substituted for the words “who fails to aver and
prove”, that were originally available. The words were substituted in the provision by way of amendment of the Act by Specific Relief (Amendment) Act, 2018 and cause of action in
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the suit in question being related to the year 2004, the position prior to the Amendment is contextually relevant and applicable also. Therefore, the plaintiff must aver in the plaint that he has performed or has always been ready and willing to perform the essential terms of contract which are to be performed by him other than the one, which has been prevented to be performed or waived from performance by the defendant. In the case on hand, defendants have neither prevented the plaintiff from performing any part of the contract nor has waived any part from his performance. Therefore, it is incumbent upon the plaintiff in the case on hand to plead that he was ready and willing to perform the part attributed to him by the terms of the agreement for sale. The plaintiff is bound not only to plead, but also to prove that the part meant to be performed by him in
the agreement for sale was already performed or that he has been ready and willing to perform the essential terms of the contract or is still ready and willing to perform his part.
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"ബ�ക� വ�ലയർതമ�യ 3,75,000/- രപ ക��ടത� വ�ദ�യക� ച�ലവ�ൽ ത�റ�ധ�ര� എഴത� വ�ങനത�ന� വ�ദ� എപ$�ഴ� ഇപ$�ഴ� സദ� സനദന�യ�ടളത� ആയത�ന പവണന ആധ�ര കചലവ�ൾ ഉൾക$ക�യള സ�ഖ2 വ�ദ� പകലണ�യ�രനതമ�ണ�.”
specifically pleaded about his readiness and willingness to perform his part of the contract. The plaintiff has categorically stated in the above extract that the balance sale consideration of Rs.3,75,000/- was readily available with him and he was always ready and willing to pay the same to get the sale deed executed in his favour.
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consideration was entrusted with his uncle and the latter has undertaken to pay that to the defendants at any point of time. Though he has agreed to obtain a document from his uncle and to produce it to establish the entrustment of money with him, he failed to do so. He has categorically denied that a document was not available to show that money was with him at the relevant time. But he failed neither to examine his uncle nor to produce any document from his uncle as spoken by him to establish entrustment of money with him, for payment of balance sale consideration. On the contrary, he has stated that no documents was available with him to establish his source of money for payment of balance sale consideration.
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them. It was spoken by PW2 that he had gone to the Sub Registrar's Office with the plaintiff on 13.06.2005, the day on which the extended period of time got expired and waited there till 10.15 am, but the defendants did not reach there. According to him, himself and the plaintiff had gone to the residence of the defendants at 11 am on the day and was told by the latter that the documents pertaining to the title of the property were not obtained from the bank.
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had the source to avail the money for payment to the defendants as balance sale consideration, he is not entitled to obtain a decree for specific performance in his favour. As contemplated under Section 16(c), specific performance of a contract cannot be enforced in favour of a person who fails to plead and prove either that he has performed or that he is ready and willing to perform the essential terms of agreement for sale, which has been agreed by him to perform.
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precedes grant of a decree for specific performance in the case on hand was the readiness and willingness of the plaintiff to perform his part of the contract. Evidence to establish availability of money with him or any source for him to avail money, from the inception of execution of agreement for sale, till his examination in the suit filed seeking for a decree of specific performance is essential for the success of the plaintiff in the suit on hand. That is the fundamental aspect to be established by the plaintiff for obtaining a decree for specific performance.
“6. In order to get a decree for specific performance, the appellant must prove that he was and is still ready to perform his part of the agreement. Admittedly the property was not measured and the draft of the sale deed was not prepared. It is true that the respondent has a case that the appellant had never approached either the respondent or her father Pokku Haji. If actually, the appellant was ready and willing to perform his part of the contract, he might have atleast sent a notice stating his readiness and willingness. Apart from the interested testimony of the appellant there is no other evidence to show his readiness and willingness to perform his part of the contract. That mediators allegedly intervened in the transaction was not examined. The relief of specific performance is a discretionary remedy and that discretion must be exercised on sound principles and circumstances. The readiness and willingness of the appellant to perform his part of the contract is a question of fact
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to be inferred from the facts and circumstances of each case. The conduct of the party and the attending circumstances also is to be looked into. Here, in this case, the appellant has not adduced any evidence to show that the balance of sale consideration was ready with him. There is only the self serving evidence of PW-1 alone regarding the same. During examination, he has admitted that he was having bank accounts in three different banks. But he has not produced the pass books in respect of the accounts or other documents. In the circumstances it cannot be found that the appellant was ready and willing to perform his part of the contract.”
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period stipulated in the agreement for sale and also at the relevant time when the suit was pending consideration. The plaintiff must establish his readiness and willingness to pay the amount stipulated by the agreement for sale successfully and satisfactorily during trial. When the plaintiff fails to prove that crucial element, decisive in the matter of exercise of discretion by the court whether to grant the equitable remedy of specific relief or not, the plaintiff will not succeed and the decree of specific performance is only to be declined. The trial court has considered the evidence adduced by the plaintiff in its correct perspective and found that he has failed to establish his readiness and willingness to perform his part as per Ext.A1. This Court finds no reason to interfere with the judgment under challenge.
In the result, the appeal fails and is dismissed. No order as to costs.
Sd/-
MARY JOSEPH,
JUDGE
NAB
3 issues framed by the court
Whether the appellant is entitled to a decree for specific performance of an agreement for sale when he failed to prove readiness and willingness to pay the balance consideration.
Whether the trial court correctly rejected the appellant's plea that the defendants had not produced title documents.
Whether the appellant discharged the burden of proving his financial capacity to pay the balance sale consideration.
Colour shows how this judgement treated each authority
Basheer v. KhadeejaRelied on¶19
Basheer v. Khadeeja [2001 (2) KLT 632]
1 provisions across 1 enactments
UNNIKRISHNA PILLAI
GOPALAKRISHNA PILLAI
VALSALA KUMARI
MARY JOSEPH
As recorded by the court registry
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