Appeal against dismissal of suit for specific performance of sale agreement. Court held decree cannot be granted as non-party co-owner not joined and excessive delay with nominal advance exercised discretion against performance.
Appeal dismissed; plaintiff not entitled to specific performance of the contract.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 8TH DAY OF OCTOBER 2021 / 16TH ASWINA, 1943
RFA NO. 688 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 30/06/2011 IN OS 142/2008 OF
SUB COURT, NEYYATTINKARA
APPELLANT/PLAINTIFF:
SASIKUMARAN, S/O KESAVAN, T.C.48/899 (4), K.S.K SADAN,KALLADIMUKAM,KONCHIRAVILA, THIRUVANANTHAPURAM.
BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY
RESPONDENTS/DEFENDANTS:
1 USHA KUMARI, W/O SURENDRAN, G.S. BHAVAN, MUNDUKONAM, MARANALLOOR.
4 PEEYOSH.S.PAUL, G.S BHAVAN, MUNDUKONAM, MARANALLOOR.
R1,R3,R4 BY ADVS.SRI.A.R.DILEEP SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL SRI.MANU SEBASTIAN SMT.NAVA VARGHESE SRI.V.SUNIL KUMAR PANACHAMOODU-R2
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ORDERS/HEARING ON 08.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA NO. 688 OF 2011 2
JUDGMENT
The plaintiff, agrieved by the rejection of
decree of specific performance of a contract, came up in appeal with respect to Ext.A1 contract for sale pertaining to 25 cents dated 21/12/2007. The agreed consideration was at the rate of Rs.18000/- per cent,
and it would come to Rs.4,50,000/-. What is given by way of advance is only a nominal amount of Rs.3000/-. The agreed period was six months. It is thereafter, the suit for specific performance was filed in the year 2008. The trial court dismissed the suit, against which the plaintiff came up.
is the second respondent in the appeal, is not a party. But, in the original title deed, there is a
clause incoroporated by the executant, the third
defendant, that the property shall not be alienated without his consent and without making her a party to
the document. It is a partial restriction on
alienation and hence valid. As such, Ext. A1
RFA NO. 688 OF 2011 3
agreement cannot be specifically enforced without the juncture of third defendant, who is not a party to the agreement.
performance can be granted, even if it is found to be
lawful to do so. The agreement is dated 21/04/2007 and now more than 14 years already elapsed. what is received by way of advance is only a nominal amount, less than 5% of the total consideration agreed. Hence, it is a fit case
wherein the descretion can be exercised not to grant
specific performance, especially in view of long lapse of more than 14 years. In both the counts, the plaintiff is not entitled to specific performance.
Hence, appeal lacks in merit, deserves only a
dismissal and I do so.
Sd/-
P.SOMARAJAN
JUDGE
msp
3 issues framed by the court
Whether agreement for sale can be specifically enforced against a co-owner who is not a party to the agreement.
Whether expenditure is a fit case for grant of specific performance considering the long lapse of over 14 years and nominal advance.
Whether discretion under Section 20 of Specific Relief Act warrants refusing specific performance due to delay and inadequate consideration.
1 provisions across 1 enactments
SASIKUMARAN, S/O KESAVAN
USHA KUMARI, W/O SURENDRAN
SUMATHY, D/O.AALIAS
SONO.S.PAUL
PEEYOSH.S.PAUL
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
