Partly allowed

Sheila Raman P.Kutty v. P.R.Haridas

Kerala HC19 May 2022RFA/121/2021

Case brief

AI extract

What is this about?

The High Court allowed the appeal partially, holding that a plaintiff cannot seek specific performance after repudiating the contract via a demand notice. The court set aside the lower court's decree and remanded the matter for fresh consideration regarding compensation. Court fees were refunded.

What did the court decide?

Decree for specific performance set aside; matter remanded to trial court for fresh consideration on compensation; court fees refunded to appellant.

Sheila Raman P.Kutty Vs P.R.Haridas — Specific Performance | Kerala HC (2022)

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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 19^TH DAY OF MAY 2022 / 29TH VAISAKHA, 1944

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RFA NO. 121 OF 2021

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AGAINST THE JUDGMENT AND DECREE DATED 16-2-2021 IN OS 41/2018 OF SUB COURT, OTTAPPALAM.

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APPELLANT/DEFENDANT IN O.S :

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SHEILA RAMAN P.KUTTY, AGED 54 YEARS, D/O. P.R.KUTTY, 18, SEAGULL ANGELORE SOCIETY PESTOMSAGAR, CHEMBUR, MUMBAI, (NOW RESIDING AT THE QUARTERS OF GOVERNMENT MEDICAL COLLEGE, KANNUR-670 503.)

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BY ADVS. R.LAKSHMI NARAYAN R.RANJANIE

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RESPONDENTS/PLAINTIFFS IN O.S :

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1 P.R.HARIDAS, AGED 67 YEARS, S/O. P.R.NAIR, ERANDATH PATHAYAPURA VEEDU, OTTAPALAM P.O., OTTAPALAM TALUK, PIN- 679101.

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2 HARIDAS BUILDERS, REPRESENTED BY MANAGING PARTNER P.R. HARIDAS, AGED 67 YEARS, S/O. P.R.NAIR, ERANDATH PATHAYAPURA VEEDU, OTTAPALAM P.O., OTTAPALAM TALUK, PIN- 679101

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R1 & R2 BY ADVS.R.SREEHARI & P.B.KRISHNAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA No.121 of 2021 2

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P.SOMARAJAN, J.

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------------------------------------------------

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RFA No.121 of 2021

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----------------------------------------------------

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Dated this the 19^th day of May, 2022.

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J U D G M E N T

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The main question that came up for consideration in

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this appeal is whether it is permissible to grant specific performance at the instance of the plaintiff who repudiated the contract by issuing a demand notice prior to the institution of the suit. It is pertaining to the purchase of an apartment for an agreed consideration of around Rs.37,19,150/-, for which Ext.A1 agreement was entered into between the plaintiff, the owner of the flat and the defendant, the proposed purchaser, a Doctor by profession. Out of the agreed consideration of Rs.37,19,150/-, an amount of Rs.33,77,220/- was paid in advance. Admittedly, Ext.A3 notice was issued by the owner of the building, the plaintiff repudiating the contract prior to the institution of the suit. It is well settled that once the contract was repudiated, the person who repudiated the contract cannot

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RFA No.121 of 2021 3

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sue for its due performance. The above said legal position was overlooked by the trial court and granted a decree for specific performance of the contract directing the defendant to pay the balance sale consideration of Rs.3,22,780/- and to get the sale deed executed from the plaintiff. It is also fairly conceded by both the counsel that there is a failure on the part of the trial court to consider the entitlement of compensation based on the breach of contract alleged, hence pressed for a remand of the matter to the trial court. Without prejudice, the right of the parties to amend the plaint and the written statement, the decree granting specific performance is hereby set aside and the matter is remanded back to the trial court for fresh consideration.

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The parties are permitted to amend their plaint and the written statement. They may be allowed to adduce additional evidence, if any. The trial court shall dispose of the suit afresh untrammelled by any of the observations contained in the impugned judgment as well as this

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RFA No.121 of 2021 4

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judgment.

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The parties shall appear before the trial court on 07-06-2022.

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The appeal is allowed in part accordingly. No costs. Since there is no default on the part of the appellant

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and remand was ordered not on the fault of the appellant, the Registry is directed to refund the court fee to the appellant under Section 67 of the Kerala Court Fees and Suits Valuation Act, 1959.

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Sd/-

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P. SOMARAJAN, JUDGE

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amk

Sheila Raman P.Kutty v. P.R.Haridas

Case brief

What is this about?

What did the court decide?

Sheila Raman P.Kutty v. P.R.Haridas

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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