Dismissed

Prasanna Kumar, v. Mallika Devi

Kerala HC21 Oct 2021AS/142/1997

Case brief

AI extract

What is this about?

The High Court set aside a specific performance decree granted without addressing Section 20 discretion. It held the trial court erred in handing possession via a Receiver before appeal execution. The High Court granted specific performance by directing the plaintiff to pay the additional 30% current property value.

What did the court decide?

Decree for specific performance granted with direction for plaintiff to pay additional Rs.4,95,000 as 30% of present value within three months, otherwise return of advance.

Prasanna Kumar, Vs Mallika Devi — Specific Performance | Kerala HC (2021)

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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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THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943

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AS NO. 142 OF 1997

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AGAINST THE JUDGMENT AND DECREE DATED 29.06.1996 IN OS 529/1993 OF
PRINCIPAL SUB COURT, KOTTAYAM

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APPELLANT/DEFENDANT:

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PRASANNA KUMAR,
S/O.GOVIND WARRIER,
RESIDING AT THAZHATHU VARRIATHU,
VAZHAPPALLY.

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BY ADVS.
 SRI.S.SREEKUMAR
 SRI.P. MARTIN JOSE

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RESPONDENT/PLAINTIFF:

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MALLIKA DEVI,
D/O.GOPINATHA PRABHU,
KUNANTHILLATHU,
KIZHAKKUM BHAGOM KARA,
KIZHAKKUMBHAGOM VILLAGE,
CHANGANACHERRY TALUK.

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BY ADVS.
SRI.JAGAN ABRAHAM M.GEORGE
SRI.JAISON ANTONY

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THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 21.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AS NO. 142 OF 1997

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JUDGMENT

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Unfortunate incidents have happened
in the instant case after the passing of
a decree by the trial court, presumably
on the reason that the trial court during
the pendency of a suit for specific
performance appointed a Receiver to take
possession, that too, overlooking all
settled legal principles and the various
provisions contained in the Specific
Relief Act.

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2. Yet another mischief was also seen

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done by the trial court while decreeing a
suit for specific performance, wherein
directions were issued to the Receiver to
hand over possession of the property
taken from the defendant to the plaintiff
and thereby defeated the right of appeal

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AS NO. 142 OF 1997

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available to the party and its legal
consequences thereof. Without waiting for
the exercise of appellate jurisdiction,
possession of property was handed over to
the plaintiff by giving direction to the
Receiver, that too, before execution of
the sale deed in execution of the decree.
It is so unfortunate that in a suit for
specific performance, a Receiver was
appointed by the trial court. The
possession was taken from the defendant.
In the decree it was directed to give
possession of the property to the
plaintiff immediately without waiting for
execution of a sale deed in furtherance
of the decree passed and without
permitting the parties to exhaust the
appellate jurisdiction thereby overlooked
all settled legal principles. It was

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AS NO. 142 OF 1997

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brought to the notice of this Court that

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the plaintiff who is illiterate had
acted upon the possession given by the
Receiver by constructing a building
therein, subsequently.

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3. It was submitted by the learned
counsel for the appellant that, the
decree for specific performance was
granted without addressing to Section 20
of the Specific Relief Act. The legal
position was settled by a Division Bench
of this Court in Antony K.O. and another

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v. M.K.Krishnankutty Menoki and others
( 2017 (1) KHC 479 = 2017 (1) KLJ 357 :
ILR 2017 (1) Ker 444) in the following
lines:

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“ The question at what time the
Court has to exercise its discretion

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is also well evident from a mere

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AS NO. 142 OF 1997

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reading of Section 20 of the
Specific Relief Act, which would
arise only after finding that it is
lawful to grant the relief sought
for in favour of the plaintiff. In
all other provisions of law wherein
discretion could be exercised stands
for exercising discretion in a
positive way for granting some
relief to the parties and not for
refusing any relief. But, the
discretionary power incorporated and
embodied under Section 20 stands on
a different footing in which the
Court has to exercise discretion
not for granting the relief, but for
refusing the same. It has got its
own character and peculiarity, apart
from other provisions contained in
other laws for the time being in

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AS NO. 142 OF 1997

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force. So, the real impact of
Section 20 should be and must be
understood under the background of
those aspects. It is a mandate upon
the Court to address the question of
exercise of discretion before
granting or refusing a decree for
specific performance and it has to
be exercised only after finding that
it is lawful to grant a relief of
specific performance in favour of
the plaintiff. A decree which was
granted without addressing and
without exercising the discretion
under Section 20 of the said Act is
bad in law. The Court is duty bound
to address the question of exercise
of discretion under Section 20 of
the Specific Relief Act while
granting or refusing to grant a

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AS NO. 142 OF 1997

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decree of specific performance. The
said discretion has to be exercised
only after finding that it is lawful
to grant the relief prayed for in
suit in favour of the plaintiff.”

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4. The decree which was granted
without addressing the discretion to be
exercised under Section 20 is bad in law
and cannot be sustained.

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5. Ext.A1, agreement, is dated
20.06.1992, by which the parties have
agreed to sell 5½ cents of property for a
total amount of Rs.26,250/- by receiving
an advance amount of Rs.10,000/-. There
is no dispute with respect to the due
execution of Ext.A1 agreement and receipt
of advance amount of Rs.10,000/-. PW2,
one Shenoy, was examined in order to

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AS NO. 142 OF 1997

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show that he had purchased the property
belonging to the husband of plaintiff for
an amount of Rs.9,000/- and that it was
sold for the purpose of effecting payment
of balance sale consideration. According
to the plaintiff, the said amount of
Rs.9,000/- was paid on 30.07.1992 before
the expiry of the period of contract,
i.e., within two months. The payment of
said amount is disputed by the defendant.
But, nothing was brought out in cross-
examination to discredit the oral
evidence of PW2, wherein he had deposed
that he had witnessed the payment of
Rs.9,000/- to the defendant, who is also
a witness to the abovesaid sale deed.
This would clearly show the readiness and
willingness on the part of the plaintiff
to perform his part of contract. Earnest

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AS NO. 142 OF 1997

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efforts were made for obtaining necessary
funds by selling the property of her
husband for an amount of Rs.9,000/-.
The credibility of witness, PW2, has to
be ascertained in the light of execution
of the sale deed and it would lend
support to the plaintiff’s case regarding
the readiness and willingness. The
balance sale consideration would come to
Rs.7,250/-. The period of contract was up
to 20.08.1992. PW3 is the brother of the
above said Shenoy, who is a witness to
the payment of Rs.9,000/-, besides the
execution of Ex.A1 agreement and receipt
of advance amount. PW4 is the mediator.
PW2 and PW3 had given oral evidence in
tune with the case advanced by the
plaintiff with respect to payment of
Rs.9,000/-, out of balance consideration

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AS NO. 142 OF 1997

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as on 30.7.1992, besides the due
execution of Ext.A1 agreement and receipt
of advance amount. The fact that the
defendant had opted to receive the
balance sale consideration in piecemeal
as on 30.07.1992 would show the
understanding.

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6. Then comes the question of

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discretion that has to be applied in view
of Section 20 of the Specific Relief Act.
As discussed earlier, a Division Bench of
this Court had laid down the legal
position that the discretion has to be
exercised not to decree the suit even if

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it is found to be lawful to do so. In
other words, it has to be exercised in a
negative way bearing the principle of
equity, good conscience and intention of
parties. As discussed in earlier

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AS NO. 142 OF 1997

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paragraph, an amount of Rs.19,000/- was
received out of the total sale
consideration which would constitute
nearly 70% of the sale consideration
agreed upon. The fact that her husband
took pain to sell the property as on
30.07.1992 would lend sufficient support
to the plaintiff regarding readiness and
willingness. It is after the receipt of
Rs.19,000/-, the defendant went back from
the contract and that has resulted in the
institution of the present suit for
specific performance.

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7. The learned counsel for the

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appellant submitted that the plaintiff
claimed possession over the property
which was disputed by the defendant. It
was not mentioned anywhere in the
agreement or in the demand notice.

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AS NO. 142 OF 1997

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Further this Court in Mathew Varghese v.
Krishnan and Others [2020(1) KHC 433 =
2020(1) KLT 643] decisions had laid down
that Section 53A of the Transfer of

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Property Act is inoperative.

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8. It is not at all necessary to go
further in the matter regarding the
possession as the trial court had
committed a very serious mistake by
appointing a Receiver to take possession
and directed the Receiver to hand over
the possession of the property, that too,
before exhausting the remedy by way of
appeal and before getting the sale deed
executed. It was submitted that, the
plaintiff took possession under the
sanctity of the impugned decree from the
Receiver and had constructed a building
therein. But no evidence was adduced in

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AS NO. 142 OF 1997

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that behalf. I.A. No.1/2021 was

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submitted in order to show the
construction of a building in that
property subsequent to the possession
given to the plaintiff by the Receiver.

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Two documents were produced along with
abovesaid application. One is the
revenue tax receipt and other is the
building tax receipt, which would prima
facie show construction of a building
over the property. But it is now well
settled that without testing the
genuineness of the document by providing
a right of cross- examination, it cannot
be accepted in evidence. IA.No.2/2021 is
also filed for accepting additional
evidence under which the receipt of
Rs.9,000/- signed by the defendant
produced. Since test by cross examination

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AS NO. 142 OF 1997

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is required in order to admit these two
documents, unless admitted, this court
cannot accept the same in evidence.
Hence, both the applications will stand
dismissed.

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9.During the course of argument,

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thelearnedcounselforthe
appellant/plaintiff submitted that the
property is now worth more than
Rs.3,00,000/- per cent. Initially, a
concession was made by the learned
counsel for the plaintiff expressing his
willingness to pay the present value of

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the property since a building was
constructed over the property by the
plaintiff under a mistaken impression.
Later on, it was withdrawn. As such, the
case was posted as 'to be spoken to'.
There is not much dispute regarding the

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AS NO. 142 OF 1997

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present value of the property and as
such, though the discretion to be
exercised under Section 20 of the
Specific Relief Act stands against the
plaintiff for the purpose of doing

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justice to the parties, I am of the view
that specific performance can be granted
by striking a balance by directing the
plaintiff to pay an additional amount of
Rs.4,95,000/- (Rupees Four Lakhs Ninety
Five Thousand only) being the 30% of the
present value of the entire property, in
additiontothebalancesale

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consideration within three months,
failing which there will be a decree for
return of the advance amount which comes
to Rs.19,000/- with interest @ 12% per
annum from the date of suit till today
and thereafter @ 6% per annum till the

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AS NO. 142 OF 1997

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date of recovery charged upon the plaint
schedule property and in that event, the
relief of specific performance will stand
rejected. Hence decreed accordingly. It
is made clear that it will not have any
binding precedent, but only for
safeguarding the interest of both parties
and to compensate the loss sustained by
the parties due to the mistake committed
on the part of the trial court.

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Theappealisdisposedof

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accordingly.

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 Sd/-

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P.SOMARAJAN

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JUDGE

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SPV

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AS NO. 142 OF 1997

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APPENDIX

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RESPONDENT’S ANNEXURE

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ANNEXURE A-1 :LAND RECEIPT DATED 11.10.2021.

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ANNEXURE A-2 :PROPERTY TAX RECEIPT DATED
17.09.2021.

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ANNEXURE A-3 :ORIGINAL RECEIPT DATED 30.07.1992
EXECUTED BY THE APPELLANT.

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//TRUE COPY//

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PA TO JUDGE

Prasanna Kumar, v. Mallika Devi

Case brief

What is this about?

What did the court decide?

Prasanna Kumar, v. Mallika Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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