Allowed

Thayyil Tazhe Kuniyil Dilip Kumar v. Puthiyedath Ramakrishnan

Kerala HC5 Jul 2022RFA/220/2019

Case brief

AI extract

What is this about?

This appeal against a decree for specific performance and return of deposit was allowed. The plaintiff failed to prove readiness and willingness, invalidating the specific performance claim. However, the court granted a decree for return of the admitted advance amount with interest.

What did the court decide?

Decree for specific performance refused; decree granted for return of advance amount of Rs.50,000 with interest at 6% per annum from the date of suit.

Thayyil Tazhe Kuniyil Dilip Kumar Vs Puthiyedath… — 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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TUESDAY, THE 5^th DAY OF JULY 2022 / 14TH ASHADHA, 1944

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RFA (Indigent) NO. 220 OF 2019 (B)

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AGAINST THE JUDGMENT & DECREE DATED 21.12.2018 IN OS No. 27/2017 OF

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SUB COURT, VATAKARA

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CMCP 34/2019 OF HIGH COURT OF KERALA

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APPELLANT/DEFENDANT:

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THAYYIL TAZHE KUNIYIL DILIP KUMAR, AGED 49 YEARS, S/o SEKHARAN, ANUGRAHA FLAT NO.1, NEAR VATAKARA TALUK, CO-OPERATIVE HOSPITAL, VATAKARA POST, PIN-673101.

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BY ADVS. K.S.BABU N.SUDHA BOBBY U. NAIR BABU SHANKAR DHANUJA M.S MINU SIBY ROY JAYADEVAN T.N.

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TARA PREM

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RESPONDENT/PLAINTIFF:

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PUTHIYEDATH RAMAKRISHNAN, AGED 67 YEARS, S/o NARAYANAN NAMBIAR, RESIDING AT SARANGA, ERAMALA AMSOM, AADIYUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE 673501.

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BY ADVS. SRI.P.B.KRISHNAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA (Indigent) No.220 of 2019

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JUDGMENT

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A decree for specific performance of contract based on

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Ext.A1 agreement dated 10/08/2017 was granted by the trial

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court against which the defendant came up. The total sale consideration comes to Rs.12,92,500/- i.e. @ Rs.50,000/-

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per cent for 10.46 Ares equivalent to 25.85 cents. The period of contract was upto 30/1/2018.

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The defendant challenged the validity of Ext.A1

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agreement on the ground that it was obtained under duress

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and he was under intoxication at the time when it was

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executed. But it is an admitted case that subsequent to

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Ext.A1 agreement dated 10/08/2017, he had issued Ext.A2

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notice to the plaintiff on 30/8/2017 repudiating the

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contract as he was under the influence of intoxication due

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to consumption of alcohol. An agreement which was executed

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without knowing its content or under duress would stand

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vitiated. A mere intoxication or influence of intoxication

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would not make the document invalid unless the influence of

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intoxication is of the nature sufficient to impair the

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RFA (Indigent) No.220 of 2019 3

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entire mental ability to understand the nature and content of the document. The fact that just after few days he had issued Ext.A2 notice of revocation would sufficiently show that the factum of execution of Ext.A1 agreement was within his notice right from the moment of its execution and this would sufficiently show that there was no complete impairment of mental capacity at the time of its execution, even if it is admitted that he was under the influence of alcohol at the relevant time. So the challenge raised on the said ground cannot be sustained.

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It is a case wherein the plaintiff did not mount on the box in order to satisfy the readiness and willingness as mandated under Section 16 of the Specific Relief Act which would engulf the elements of mental condition. No other satisfactory evidence was also adduced to show the readiness and willingness to perform his part of contract. But at the same time, it is not at all necessary in all cases that the plaintiff should mount on the box in order to satisfy the said requirements though involves mental elements. But there should be sufficient evidence to reveal the mental condition and readiness and willingness on the

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RFA (Indigent) No.220 of 2019 4

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part of the plaintiff. In the absence of such evidence sufficient to reveal and establish readiness and

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willingness, the plaintiff should mount on the box to testify by cross-examination and non-examination of plaintiff in that situation would stand fatal to the case.

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In the instant case, no satisfactory evidence was adduced to show the readiness and willingness as mandated under Section 16 of the Act and the plaintiff did not mount on the box to give any direct evidence. Necessarily, no decree for specific performance can be granted.

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Yet another reason is also available to non-suit the plaintiff, since there is no prayer for alternative relief for return of the advance amount. But, it is a case

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wherein the defendant had admitted the receipt of

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Rs.50,000/- and expressed his willingness to return the

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same with interest. It is not permissible to reject the relief of return of advance amount when it is admitted by the defendant and expressed willingness to return the same

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with interest in his written statement. Hence, the

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admission would cure the defect of non-incorporation of alternative relief in the suit and bar under Section 22 of

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RFA (Indigent) No.220 of 2019 5

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Specific Relief Act. Hence, it is permissible to grant a decree for return of the advance amount of Rs.50,000/(Rupees Fifty Thousand) with interest @ 6% per annum from the date of suit till the date of realization. I do so. The deposit of amount, if any, can be adjusted towards the amount due.

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The appeal is allowed accordingly. No costs. The appellant has to pay the court fee within two months, failing which it shall be recovered under Order XXXIII Rule 14 C.P.C. by forwarding a copy of the decree to the District Collector concerned.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Thayyil Tazhe Kuniyil Dilip Kumar v. Puthiyedath Ramakrishnan

Case brief

What is this about?

What did the court decide?

Thayyil Tazhe Kuniyil Dilip Kumar v. Puthiyedath Ramakrishnan

Case brief

What is this about?

What did the court decide?

What the court decided

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