Allowed

Bhagavathi Parambath Pushparajan v. K.T.Rema

Kerala HC14 Sept 2021RFA/45/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by a bonafide purchaser pendente lite challenging a decree for specific performance. The court held the trial court's decree bad in law for failing to address Section 20 of the Special Relief Act, primarily due to lack of evidence regarding readiness, willingness, and financial capacity of the plaintiff.

What did the court decide?

The appeal allowed; decree of the trial court set aside; return of advance amount of Rs.1,50,000/- with interest granted against the 1st defendant.

Bhagavathi Parambath Pushparajan Vs K.T.Rema — 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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TUESDAY, THE 14^TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943

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RFA NO. 45 OF 2013

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AGAINST THE JUDGMENT AND DECREE DATED 06.10.2012 IN O.S.NO.580/2008 OF I^ST ADDITIONAL SUB COURT, KOZHIKODE.

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APPELLANT/2ND DEFENDANT:

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BHAGAVATHI PARAMBATH PUSHPARAJAN S/O.LATE APPUTTY, KAKKATTKUNNUMMAL HOUSE, MEDICAL COLLEGE P.O., KOZHIKODE TALUK.

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BY ADV SRI.AVM.SALAHUDIN

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RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:

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1 K.T.REMA D/O.CHIRUKANDAN, VADAKKUVEETTIL, NELLIKODE AMSOM KOVOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673001.

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2 N.M.SHEEBA D/O.HARIDASAN, NAIKKARA MADATHIL, VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673001.

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R1 BY ADV. SRI.P.K.RAMKUMAR R2 BY ADV. SRI.JESWIN P.VARGHESE

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA NO. 45 OF 2013

JUDGMENT

The second defendant in the suit, who claims to be a bonafide purchaser without noticing the existing contractual obligation based on a sale agreement dated 19.05.2008 came up challenging the decree for specific performance of the contract.

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It is submitted that, the second defendant/appellant is bound by the decree that may be passed in the suit being a pendente lite transferee, for which, the learned counsel for the respondents relied on two decisions in Arjan Singh v. Punit Ahluwalia & Ors [2008(8) SCC 348] and Jagan Singh (Dead) Through Lrs v. Dhanwanti & Ors 2012(2) SCC 628.

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It is a case wherein the appellant,

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the bonafide purchaser, who stepped into the

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RFA NO. 45 OF 2013

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shoes of the 1^st defendant, the owner of the

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property being a pendente lite purchaser challenged the decree on the ground that, the decree of specific performance is not in accordance with the mandate under Section 20 of the Special Relief Act (hereinafter referred to as the Act) and in violation of the mandate under Section 16 of the Act. The plaintiff never mounted on the box to give any direct evidence regarding the readiness and willingness to perform her part of the contract. The total sale consideration comes to Rs.2,88,000/- out of which, what is paid in advance comes to Rs.1,50,000/-. The balance amount comes to Rs.1,38,000/- and the period of contract is for three months,i.e. upto 19.08.2008. Within that time, no demand notice was issued for the reason best known to the

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plaintiff. Though she advanced a case that

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RFA NO. 45 OF 2013

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her husband had approached the 1^st defendant with a demand to execute the document within that time, no satisfactory evidence was adduced to show that she was having funds or ability to raise funds sufficient to meet balance sale consideration. It is so crucial that the plaintiff has not produced any document to show or any satisfactory evidence that she was having sufficient means so as to meet the balance sale consideration of Rs.1,38,000/- or ability to raise the same within a period of three months starting from 19.05.2008. The non-issuance of a written demand notice would assume importance at this juncture and looms large, especially when there is no evidence regarding the capacity to collect the balance amount due under the sale agreement. This would certainly take away the readiness and willingness alleged by her.

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RFA NO. 45 OF 2013

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Further, the decree of the trial court

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is bad in law due to non-consideration of

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Section 20 of Special Relief Act. A Division Bench of this Court had the occasion to laid down the legal position in Antony K.O. and Another v. M.K.Krishnankutty Menoki [2017(1) KHC 479 = AIR 2017 NOC 202 = 2017(1) KLJ 357] under which, it was laid down that, the discretion that has to be exercised under Section 20 of the Act is not for granting a relief of specific performance, but for not to grant the said relief, even if it is found to be lawful to do so. The principle of equity is very much engrafted under Section 20 of the said Act, so as to exercise a sound discretion on the question of grant of a decree of specific performance by attending all circumstances pertaining to the agreement and the manner in which, it was sought to be

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RFA NO. 45 OF 2013

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performed. When there is laches on the part of the plaintiff, either to show the readiness and willingness or any other laches, it would disentitle the grant of specific performance, especially when read along with Section 20 of the Act. The decree granted by the trial court without addressing the scope and ambit of Section 20 of the Act is really bad in law.

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The question of lis pendens or right of a pendente lite tranferee would arise only after a decree was passed in favour of the plaintiff for specific performance. That does not mean that the plaintiff is entitled to a decree for specific performance simply because of a transfer pendente lite .

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There is an alternative prayer for return of the advance amount. The 1^st defendant, the owner of the property remained

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RFA NO. 45 OF 2013

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ex-parte after submitting the written statement. Hence, it is lawful to grant a decree of return of the advance amount, which comes to Rs.1,50,000/-, and it will carry interest @ 12% per annum from the date of expiry of Ext.A1 sale agreement, i.e. on 19.08.2008 till the date of suit and @ 12% interest from the date of suit till the date of decree of the trial court and thereafter @ 6% per annum till the date of the realization as against the 1^st defendant.

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The appeal will stand allowed accordingly.

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Sd/-

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P.SOMARAJAN JUDGE

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SPV

Bhagavathi Parambath Pushparajan v. K.T.Rema

Case brief

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Bhagavathi Parambath Pushparajan v. K.T.Rema

Case brief

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