Partly allowed

Sultha and Another v. Thilakan

Kerala HC13 Sept 2021RFA/119/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal regarding the return of advance amount. It confirmed the trial court's dismissal of the specific performance suit but remanded the case to allow the plaintiffs to amend the plaint to include a prayer for return of the Rs. 3,00,000 advance paid under a valid agreement.

What did the court decide?

Suit for specific performance confirmed dismissed; matter remanded to allow amendment of plaint to include prayer for return of advance amount.

Sultha and Another Vs Thilakan — 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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MONDAY, THE 13^TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943

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RFA NO. 119 OF 2010

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AGAINST THE DECREE AND JUDGMENT DATED 30/09/2009 IN OS 146/2008 OF

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ADDITIONAL SUB COURT, IRINJALAKUDA

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APPELLANTS/PLAINTIFFS:

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1 SULATHA, W/O KUTTIPARAMBIL DEVANAND, ANCHAPALAM DESOM, METHALA VILLAGE,, KODUNGALLUR TALUK.

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2 JAYAKUMAR, S/O.MURIKKUMTHARA SHANMUGHAN, ANCHAPALAM DESOM METHALA VILLAGE, KODUNGALLUR TALUK.

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BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.B.AMANULLA SMT.M.ISHA

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RESPONDENT/DEFENDANT:

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THILAKAN, S/O MULLEZHATH SANKU, ANCHAPALAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK.

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BY ADVS. SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR ORDERS ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA NO. 119 OF 2010 2

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JUDGMENT

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A suit for specific performance was dismissed by the trial court on the ground that the plaintiffs failed to prove the readiness and willingness to

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perform their part of contract, since there is no satisfactory evidence regarding the availability of funds or ability to raise funds so as to meet the balance sale consideration.

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An amount of Rs.3,00,000/- was paid by way of advance. Agreement was found to be duly executed, by the trial court. It appears that there is no reason for interfering with the said finding of the trial court and rejection of specific performance on the abovesaid ground, but due to inadvertent mistake no alternative prayer was incorporated for return of the advance amount. Since the agreement was found to be

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genuine and executed after receipt of advance of

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Rs.3,00,000/-, so as to avoid illegal enrichment, it

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is fit and proper to allow the plaintiff to amend the plaint so as to incorporate a relief of return of

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RFA NO. 119 OF 2010 3

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advance amount by exercising the power under the proviso to Section 22(2) of Specific Relief Act.

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Hence, for that limited purpose, a remand of

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the matter cannot be avoided, while confirming the decree of dismissal of the suit regarding the relief of specific performance. The trial court shall allow

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the plaintiff to amend the plaint so as to incorporate a relief of return of advance amount and shall decide the entitlement thereof by permitting the parties to raise their additional pleadings and evidence. It shall be done within three months from the date of appearance. The parties shall appear before the trial court on 04.10.2021.

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The appeal will stand allowed in apart

accordingly.

Sd/-

P.SOMARAJAN

JUDGE

msp

Sultha and Another v. Thilakan

Case brief

What is this about?

What did the court decide?

Sultha and Another v. Thilakan

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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