Allowed

Jose.M.Kadavan v. Kuriyas J.Kiadavan

Kerala HC12 Dec 2022RFA/609/2004

Case brief

AI extract

What is this about?

In an appeal against a decree for specific performance of a contract for sale, the High Court held that the trial court erred by ignoring statutory requirements under the Specific Relief Act. The appeal was allowed, and the decree was set aside due to lack of proof of execution and failure to address readiness and willingness.

What did the court decide?

Decree for specific performance granted by the trial court set aside; appeal allowed.

Jose.M.Kadavan Vs Kuriyas J.Kiadavan — Specific Performance | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

MONDAY, THE 12TH DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944

¶5

RFA NO. 609 OF 2004

¶6

AGAINST THE JUDGMENT AND DECREE DATED 18.08.2004 IN OS 1/2002 OF
SUB COURT, CHERTHALA

¶7

APPELLANT/1ST DEFENDANT IN THE OS:

¶8

JOSE.M.KADAVAN, AGED 47,
S/O.LATE MATHEW, "SAMEEKSHAYIL", PALLIPPURAM MURI,
PALLIPPURAM VILLAGE, CHERTHALA THALUK,
ALAPPUZHA DISTRICT.

¶9

BY ADVS.
SRI.VARGHESE C.KURIAKOSE
SRI.JACOB SEBASTIAN
SRI.PRAVEEN K. JOY

¶10

RESPONDENTS/PLAINTIFFS:

¶11

1 KURIYAS J.KADAVAN, AGED 66, S/O.JOSEPH J.KADAVAN, KADAVAN'S VILLA, KAKKANATTU KARAYIL, VAZHAKKALA VILLAGE, KANAYANNUR TALUK.

¶12

2 BINOY K.KADAVAN, AGED 28, S/O.KURIYAS J.KADAVAN, KADAVAN'S VILLA, KAKKANATTU KARAYIL, VAZHAKKALA VILLAGE, KANAYANUR TALUK.

¶13

BY ADV SRI.G.S.REGHUNATH

¶14

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

RFA NO. 609 OF 2004

¶16

¶17

JUDGMENT

¶18

Based on Ext.A6, a subsequent agreement for sale
in furtherance of the earlier agreement for sale,
Ext.B1, a decree for specific performance of the
contract was granted by the trial court, that too
without addressing the discretion that can be
exercised under Section 20 of the Specific Relief
Act, 1963. The first agreement is Ext.B1, dated
17/05/1999. It is stated that an amount of
Rs.1,20,000/- was received by way of advance by
agreeing to sell the property having an extent of 27
cents at the rate of Rs.10,000/- per cent. The
agreed period is six months. Just before the lapse
of six months period, Ext.A6 was executed on
03/10/2000 enumerating the very same terms and
conditions with respect to the very same property
granting a further time of six months for its
execution. The defendant in turn contested the suit
admitting the signature affixed as that of him in
Exts.B1 and A6, but disputed and denied its

¶19

¶20

RFA NO. 609 OF 2004

¶21

execution. What is advanced by the defendant is that
these signed papers were entrusted along with two
cheques to the plaintiff by way of security to a loan
transaction of Rs.1 lakh. In order to prove the due
execution of Exts. A6 and B1 documents, except the
interested testimony of one of the plaintiffs as PW1,
no other evidence was adduced. PW1 is the son of the
first plaintiff. Subsequently, the father and mother
of PW1 had filed another suit for realisation of
amount covered by two cheques dated 31/12/2001 in
O.S.No.38/2002. It is submitted that the amount
covered by that suit was already paid and it was
for Rs.1,50,000/- and that suit was instituted during
the pendency of the present suit for specific
performance of contract. It is too hard to digest
that after the alleged execution of Ext.B1 on
17/05/1999 and Ext.A6 on 03/10/2000, two other
cheques were issued in favour of the plaintiffs for
an amount of RS.1,50,000/- by the defendant. On the
other hand, it would lend support to the very case
advanced by the defendant pertaining to the existence

¶22

RFA NO. 609 OF 2004

¶23

¶24

of the loan transaction and execution of signed stamp
paper and issuance of signed blank cheque to the
plaintiffs. The amount offered by way of sale
consideration comes to only Rs.10,000/-, which is
unconscionable and cannot be accepted even for a
moment while taking the prevailing value of the
property in existence at the time when it was
executed. It is for an extent of 27 cents. The period
agreed into under Ext.B1 document was subsequently
enhanced to another six months under Ext.A6, that too
without assigning any reason for the extension. This
would necessarily take away the readiness and
willingness, if any, pleaded by the plaintiffs in
compliance of the requirement under Section 16 of the
Specific Relief Act. All these relevant factors have
been overlooked by the trial court. The initial
burden lies on the plaintiff to prove the due
execution of Ext.A6 agreement was not discharged as
there is no other independent evidence for its due
execution. The interested testimony of one of the
plaintiffs cannot be substituted in the place of

¶25

RFA NO. 609 OF 2004

¶26

¶27

proof when it was brought under challenge.
Necessarily, the finding rendered by the trial court
regarding the genuineness of Ext.A6 cannot be
sustained. Hence, the decree granted for specific
performance will stand set aside.

¶28

The appeal is allowed accordingly. No costs.

¶29

Sd/P.SOMARAJAN JUDGE

¶30

msp

Jose.M.Kadavan v. Kuriyas J.Kiadavan

Case brief

What is this about?

What did the court decide?

Jose.M.Kadavan v. Kuriyas J.Kiadavan

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

Similar cases

Cyril Victor Thomas Vs Theresa P. Thomas

The New India Assurance Co.Ltd. Vs Moideen and Others

Chandran Vs State of Kerala

Girish Vs State of Kerala

Kumaru Vs State of Kerala