Partly allowed

Mary Antony v. Roy Joseph

Kerala HC11 Jan 2022RFA/98/2013

Case brief

AI extract

What is this about?

This Regular First Appeal challenges a decree for specific performance of a sale agreement regarding residential property. The High Court found the plaintiff failed to prove readiness and willingness due to unreliable evidence regarding funds. The appeal was partly allowed, ordering payment of an additional sum for specific performance or return of advance with interest.

What did the court decide?

Plaintiff to deposit Rs. 15 lakhs without interest within five months for specific performance decree; failing which, suit decreed for return of advance with 12% p.a. interest.

Mary Antony Vs Roy Joseph — Specific Performance | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943

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RFA NO. 98 OF 2013

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AGAINST THE JUDGMENT AND DECREE DATED 29.09.2012 IN OS 478/2009 OF
SUB COURT, ALAPPUZHA

¶7

APPELLANTS/ DEFENDANTS:

¶8

1MARY ANTONY
AGED 66 YEARS
W/O.ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD SOUTH
VILLAGE, ALAPPUZHA-8.

¶9

2JANCY
AGED 43 YEARS
D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD
SOUTH VILLAGE, ALAPPUZHA-8.

¶10

3APPLONIA
AGED 37 YEARS
D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD
SOUTH VILLAGE, ALAPPUZHA-8.

¶11

4 ANNAMMA

¶12

AGED 34 YEARS
D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD
SOUTH VILLAGE, ALAPPUZHA-8.

¶13

5MATILDA
AGED 33 YEARS
D/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD
SOUTH VILLAGE, ALAPPUZHA-8.

¶14

6ANTONY
AGED 32 YEARS
S/O.MARY ANTONY, BAVAKKAD HOUSE, THUMPOLY WARD, ARYAD
SOUTH VILLAGE, ALAPPUZHA-8.

¶15

BY ADVS.
SRI.K.S.HARIHARAPUTHRAN
SRI.DIPU JAMES
SRI.GEORGE MATHEW
SRI.P.M.ISMAIL
SRI.M.D.SASIKUMAR

¶16

RFA NO. 98 OF 2013

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¶18

RESPONDENT/PLAINTIFF:

¶19

ROY JOSEPH
AGED 40 YEARS
S/O.M.F.JOSEPH, KANJIRAMCHIRA, ARYADU SOUTH
VILLAGE, ALAPPUZHA-7, NOW EMPLOYED AT KUWAIT,
REP. BY HIS POWER OF ATTORNEY HOLDER & WIFE,
JEE MARY ROY, AGED 30, KANJIRAMCHIRA, ARYADU
SOUTH VILLAGE, ALAPPUZHA-7.

¶20

BY ADVS.
SRI.MATHEW JOHN (K)
SRI.MATHEW DEVASSI
SRI.ABY J AUGUSTINE

¶21

THIS REGULAR FIRST APPEAL HAVING COME UP FOR
HEARING ON 11.01.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶22

RFA NO. 98 OF 2013

¶23

¶24

JUDGMENT

¶25

A suit for specific performance granted by
the trial court is under challenge. It is
pertaining to 11.250 cents of property with a
residential building therein. The defendants
have agreed to sell the same for a total
consideration of Rs.12,50,000/- by executing
Ext.A2 agreement dated 20.06.2009, by which, an
advance amount of Rs.2,25,000/- was received by
stipulating a period of six months. Just before
the expiry of the period agreed into, Ext.A3
notice was issued on 08.12.2009 demanding
performance of part of contract to the
defendants, to which, Ext.A5 reply was issued
disputing the alleged subsequent payment of
Rs.50,000/- and also disputing the readiness and
willingness alleged. The trial court on
consideration of the evidence and after hearing
both the parties, decreed the suit by granting

¶26

RFA NO. 98 OF 2013

¶27

¶28

specific performance, against which the
defendants came up.

¶29

2. The property agreed to be sold admittedly
is the only place of abode of the first
defendant and her children. But she decided to
sell the property for the purpose of meeting the
marriage expenses of her two unmarried
daughters, the defendants 4 and 5 and also for
meeting the treatment expenses of the sixth
defendant, a crippled son.

¶30

3. The suit was instituted through a power
of attorney holder. Oral evidence was also
tendered through the said power holder. The
plaintiff did not mount on the box to give
direct evidence. It was taken up as a ground to
reject the readiness and willingness deposed
through the power holder. It was submitted that
the statutory requirement under Section 16(c) of
the Specific Relief Act would constitute some

¶31

¶32

RFA NO. 98 OF 2013

¶33

mental element coupled with intention to perform
the essential terms of contract to be performed
by the plaintiff, for which, there should be
direct evidence amenable to cross examination.
Hence, it was argued that the non-examination of
the plaintiff would be fatal as against the
requirement to be established under Section
16(c) of the Specific Relief Act. But, in order
to prove the readiness and willingness to
perform the essential terms of contract by the
plaintiff, it is not at all necessary to insist
direct evidence when other evidences are
sufficient enough to discharge the statutory
requirement. A mere oral evidence tendered
through the witnesses cannot be substituted in
the place of direct evidence to be given by the
plaintiff so as to discharge the statutory
requirement under Section 16(c) of the Act,
unless there is evidence to show any positive
and affirmative action disclosing the mental

¶34

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RFA NO. 98 OF 2013

¶36

element and intention regarding the readiness
and willingness to perform his part of contract.
In other words, the availability of amount
either in cash or otherwise with the plaintiff
sufficient to meet the requirement, though
constitutes a relevant factor, may not by itself
discharge the burden to prove readiness and
willingness unless spoken to directly by him by
mounting on the box and tested its credibility
by cross examination. Paragraph 15 of the
judgment of the Division Bench of this Court in
Susheela (died) and Others v. T.M.Muhammedkunhi
(2012 (1) KHC 508 (DB)) is extracted below for
reference:

¶37

“15. A distinction may be
drawn between readiness to perform
the contract and willingness to
perform the contract. Readiness
means the capacity of the
plaintiff to perform the contract
and it includes his financial
ability to raise the money to pay

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RFA NO. 98 OF 2013

¶39

¶40

the purchase price. Even if the plaintiff has the financial capacity to pay the purchase price and he thereby shows readiness to perform the contract, that need not necessarily mean that he is willing to perform his part of the contract. Unless he is also willing to perform his part of the contract, mere readiness to do so cannot be of no avail to him. He may, nevertheless be disqualified from seeking specific performance of the contract if he is really unwilling to buy the property although he may be ready to do so. (See Raj Rani Bhasin (Smt.) v. S. Kartar Singh Mehta - AIR 1975 Delhi 137).“

¶41

4. Even going by the oral evidence tendered

¶42

by PW1, the power holder, she was having an
amount of Rs.8,50,000/- in cash and availed a
loan of Rs.5,50,000/- out of which a demand
draft for Rs.5,00,000/- was drawn as on the date
of expiry of period of contract, for which she
relied on Ext.A7 certificate issued by the then

¶43

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RFA NO. 98 OF 2013

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Manager of South Indian Bank, Convent Road. PW2
is the Bank Manager of the said Bank at the time
when he was examined and he pleaded ignorance
with the details of Ext.A7. It seems to be so
strange that the certificate issued by the then
Manager did not contain even the number of the
loan account. On the other hand, the Demand
Draft was returned on the same day to the bank.
It causes reasonable doubt as to the genuineness
of Ext.A7 certificate especially when it did not
contain the bank details or even the account
number under which the loan facility was
extended and it would lend support to the case
advanced by the defendants regarding the alleged
foul play in creating a record in collusion with
the then Manager. Even going by Ext.A7, though
the loan amount is stated to be Rs.5,50,000/-,
the DD drawn which was submitted back on the
same day comes to Rs.5,00,000/- without
specifying the loan account or its details.

¶46

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RFA NO. 98 OF 2013

¶48

Prima facie, it appears that the certificate is
seen issued without disclosing the account
number or loan account number maintained with
the said bank in the name of the plaintiff or
the power holder. Only general answers were
given pertaining to issuance of Ext.A7 by PW2
without touching into its genuineness and no
records were called for or summoned so as to
prove its genuineness. Hence, Ext.A7
certificate will not render any assistance to
the plaintiff. The fact that the alleged DD
was drawn on the date of expiry of the alleged
agreement i..e on 20/06/2009 and the same was
returned on the same day would itself show
something fishy behind it. Hence, there is
failure on the part of the plaintiff to prove
the readiness and willingness to perform the
essential terms of contract.

¶49

5. The various aspects regarding the
exercise of discretion under Section 20 of the

¶50

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RFA NO. 98 OF 2013

¶52

Specific Relief Act has been dealt with by this
Court in Vasudevakurup v. Haridasan (2021 (6)
KLT 782), after referring a three Judge Bench
decision of the Apex Court in Her Highness
Maharani Shantidevi P.Gaikwad v. Savjibhai
Haribhai Patel and Others (AIR 2001 SC 1462) and
also the decisions of the Apex Court in
A.C.Arulappan v. Smt.Ahalya Naik (AIR 2001 SC
2783) Tejram v. Patirambhau (AIR 1997 SC
2702)and in Kanshi Ram v. Om Prakash Jawan and
Others (AIR 1996 SC 2150),S.Rangaraju Naidu v.
S.Thiruvarakkarasu (AIR 1995 SC 1769),Azhar
Sultana v.B.Rajamani and Ors (AIR 2009 SC
2157),Gobind Ram v. Gian Chand (AIR 2000 SC
3106), Damacherla Anjaneyulu and Another v.
Damacheria Venkata Seshaiah and Another (AIR
1987 SC 1641), besides the the decision of a
Division Bench of this Court in Antony K.O and
Another v. M.K.Krishnankutty Menoki and Others
(2017 (1) KHC 479 = 2017 (1) KLJ 357).

¶53

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RFA NO. 98 OF 2013

¶55

6. The learned counsel for the respondent/

¶56

plaintiff at the fag end of the argument
expressed his willingness to pay an additional
amount of Rs.7.5 lakhs. It is submitted that

¶57

the property is situated in the prime centre of
the Alappuzha district. According to the
defendants, it would worth more than Rs.30
lakhs. While taking into consideration the undue
delay of more than 13 years and the
circumstances under which Ext.A2 agreement for
sale was executed and also taking into
consideration the extent of advance amount paid
which is less than 1/5th of the agreed sale
consideration, it is fit and proper to apply the
ratio laid down in the abovesaid decisions by
striking a balance. Hence, it is hereby ordered
that the plaintiff shall pay or deposit an
additional amount of Rs.15,00,000/- (Rupees
Fifteen Lakhs) without the liability of interest
in addition to the sale consideration (including

¶58

RFA NO. 98 OF 2013

¶59

the amount deposited), within a time schedule of
five months from today for the grant of decree
of specific performance, failing which, the
decree of the trial court granting specific
performance will stand set aside and the suit
will stand decreed in part granting a decree of
return of advance amount of Rs.2,25,000/-
(Rupees Two lakhs Twenty Five Thousand) with
interest @ 12% per annum from the date of suit
till realization from the defendants and charged
upon the plaint schedule property.

¶60

The appeal is disposed of as above.

¶61

 Sd/-

¶62

P.SOMARAJAN
JUDGE

¶63

SPV

Mary Antony v. Roy Joseph

Case brief

What is this about?

What did the court decide?

Mary Antony v. Roy Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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