Allowed

Mullappally Yesodha v. Puthooru Chandran

Kerala HC1 Mar 2019RSA/964/2005

Case brief

AI extract

What is this about?

In an appeal against a decree for specific performance of a sale contract, the High Court, finding discrepancies in execution and lack of title deed delivery, allowed the appeal in part. It set aside the decree and awarded the plaintiff return of the sale consideration amount with interest.

What did the court decide?

Decree for specific performance set aside; decree granted in favour of plaintiff for return of Rs.20,150/- with interest at 6% p.a. from date of suit until recovery.

Mullappally Yesodha Vs Puthooru Chandran — Specific Performance | Kerala HC (2019)

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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.SOMARAJAN

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FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940

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RSA.No. 964 of 2005

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AGAINST THE JUDGMENT AND DECREE DATED 21-03-2005 IN AS 80/2003 OF SUB COURT, TIRUR

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AGAINST THE JUDGMENT AND DECREE DATED 31-03-2003 IN OS 143/2001 OF MUNSIFF COURT, TIRUR

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APPELLANT/RESPONDENT/DEFENDANT:

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MULLAPPALLY YESODHA, D/O NARAYANAN, PURATHUR, TIRUR TALUK, MALAPPURAM DISTRICT.

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BY ADVS. SRI.K.RAMACHANDRAN SMT.R.MEERA

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RESPONDENT/APPELLANT/PLAINTIFF:

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PUTHOORU CHANDRAN, S/O KUNHIMON, PURATHOOR AMSOM DESOM, P.O. PURATHUR,, TIRUR TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.T.KRISHNANUNNI (SR.)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 964 of 2005 2

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JUDGMENT

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A suit for specific performance of contract

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for sale based on Ext.A1 contract ended in dismissal in the Trial Court (Musiff's Court, Tirur) in O.S.NO.143/2001, but it was reversed in appeal by the First Appellate Court (Sub Court, Tirur) in A.S.No.80/2003 by granting a decree of

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specific performance. Aggrieved by the said decree and judgment, the defendant came up with this appeal.

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The question came up for consideration is whether the First Appellate Court is justified in decreeing the suit granting specific performance of the contract ignoring the circumstance under

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which the contract was executed?

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Ext.A1 is the contract for sale. The

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signature found affixed in Ext.A1 contract for

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sale admitted by the defendant. But, advanced a

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case that he had affixed his signature and executed the document only by way of security to a

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RSA.No. 964 of 2005 3

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loan transaction between the plaintiff and the defendant. The plaintiff was permitted to take

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yield from the property belong to the defendant.

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Going by Ext.A1 agreement, it is clear that

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nothing was left out to be performed by the plaintiff in the contract for sale. The entire sale consideration which comes to Rs.20,150/- was

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paid on the date of execution of Ext.A1 contract

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for sale. It is not explained anywhere in the contract or in the plaint why the plaintiff had not obtained a deed of conveyance on that day

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itself when he had paid the entire sale consideration and why he had given 6 months time

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for getting the document executed. It is true

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that, during the course of argument, a case was advanced by the learned senior counsel that the original of the document was pledged in a bank and that is why the sale deed was not executed on that

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day. But, no such case advanced in Ext.A1

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agreement or in the plaint. Even if it is assumed that the document was pledged with the bank, that is not a reason for not executing the sale deed on

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RSA.No. 964 of 2005 4

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that day when he had received the entire sale consideration. It is against the prudency of an ordinary man and shrouded by improbabilities rather than probabilities. No reasonable or prudent man will give the entire sale

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consideration to a person without getting the sale deed executed. The execution of a mere agreement itself would show that there is something vitiate

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behind it. Intervention of mediators while executing Ext.A1 agreement is also specified in Ext.A1. It pre-supposes the fact that there

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existed some disputes between the parties and it was resolved through mediators. Ext.A1 is the

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result of the resolution arrived at by the parties. This would speak what is behind it. In

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the absence of a satisfactory explanation from the plaintiff under what circumstance why he had not obtained the sale deed executed on that day itself would be sufficient enough to reject the claim made by the plaintiff. Needless to say that specific performance is resting on the principle of equity and the court is not bound to grant

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RSA.No. 964 of 2005 5

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specific performance, even if it is found to be

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lawful to do so, and discretion has to be exercised not to grant a specific performance. The expression 'not to grant' gives a peculiar nature

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to the discretion to be exercised in the matter of

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specific performance rather from other provisions

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enabling and empowering the court to exercise jurisdiction. This court had settled the legal

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position in Antony K.O. and another v.

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M.K.Krishnankutty Menoki and others (2017(1) KHC 479). Further, the title deed of the property

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was not handed over to the plaintiff at the time

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of payment of entire sale consideration. Though,

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a contention was raised that possession was also

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handed over to the plaintiff, no satisfactory

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evidence adduced to show his possession over the property except his interested self serving version that he was in possession of the property but advanced a case of trespass into the property

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by the defendant. All these would vitiate the

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execution of Ext.A1 contract for sale and it would

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probabilise the case advanced by the defendant

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RSA.No. 964 of 2005 6

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rather than that of the plaintiff. There is an alternative prayer in the suit for return of the advance amount. As such the decree and judgment of the Trial Court and the First Appellate Court are liable to be modified to that extent, by allowing this appeal in part. I do so.

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The appeal is allowed in part. The decree

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and judgment of both the Trial Court and the First

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Appellate Court are set aside and granted a decree in favour of the plaintiff for return of an amount of Rs.20,150/- with interest at 6% per annum from the date of suit till the date of

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recovery of the amount from the defendant.

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No order as to cost of second appeal.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A. TO JUDGE

msp

Mullappally Yesodha v. Puthooru Chandran

Case brief

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Mullappally Yesodha v. Puthooru Chandran

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