Partly allowed

Pookkidi Gopinathan v. Kana Puthiya Purayil Ramachandran

Kerala HC1 Mar 2023RFA/199/2012

Case brief

AI extract

What is this about?

Appeal against dismissal of a specific performance suit. Court held specific performance denied due to plaintiff's failure to prove financial capacity and lack of measurement clause. However, set aside trial court's failure to return paid advance amount.

What did the court decide?

Decree for return of advance amount of Rs. 2 lakhs with interest at 6% p.a. and costs granted against respondents.

Pookkidi Gopinathan Vs Kana Puthiya Purayil Ramachandran — Specific Performance | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944

¶5

RFA NO. 199 OF 2012

¶6

AGAINST THE JUDGMENT AND DECREE DATED 30.11.2011 IN OS 160/2008 OF SUB COURT, PAYYANNUR

¶7

APPELLANT/PLAINTIFF:

¶8

POOKKIDI GOPINATHAN, S/O.JANAKI AMMA, AGED 49 YEARS,
BUSINESS, RESIDING AT PAYYANUR AMSOM, KOKKANISSERI
DESOM, (PO) KOKKANISSERI, KANNUR-670 307.
BY ADV SRI.MAHESH V RAMAKRISHNAN

¶9

RESPONDENTS/DEFENDANTS NOS.2 TO 8:

¶10

1 KANA PUTHIYA PURAYIL RAMACHANDRAN, AGED 53 YEARS, EMPLOYED IN GULF, RESIDING AT CHERATT, KUNHIMANGALAM AMSOM, (PO) EDANAD, KANNUR-670 327.

¶11

2 KANA PUTHIYA PURAYIL RAJEEVAN, AGED 43 YEARS, BUSINESS, RESIDING AT CHERATT, KUNHIMANGALAM AMSOM, (PO) EDANAD, KANNUR-670 327.

¶12

*3 KANA PUTHIYA PURAYIL JANAKI, W/O.LATE POOKKIDI VADAKKEDATH, KUNHIRAMAN,

¶13

AGED 78 YEARS, CHERATT, (PO) EDANAD, KANNUR-670 327.(DIED )

¶14

4 KANA PUTHIYA PURAYIL LALITHA, AGED 53 YEARS, W/O.KRISHNAN, CHERATT, (PO)EDANAD, KANNUR-670 327.

¶15

5 SHYAMALA, W/O.SREEDHARAN, AGED 51 YEARS, NEAR POLICE STATION, PAYYANUR-670 307.

¶16

6 PRASANNA, W/O.UNNIKRISHNAN, AGED 48 YEARS, NEAR PERINGOME BANK, (PO) PERINGOME, PIN-670 308.

¶17

7 SURESH, AGED 43 YEARS, S/O.LATE POOKKIDI VADAKKEDATH KUNHIRAMAN, CHERATT, (PO) EDANAD, KANNUR-670 327.

¶18

IT IS RECORDED THAT R3 DIED AND R1,R2, R4 TO R7 IN THE
PARTY ARRAY ARE RECORDED AS LEGAL HEIRS OF DECEASED R3
VIDE ORDER DTD 2/6/2015 IN MEMO DTD 27/02/2015 CF
NO.2160/2015

¶19

R1 & R2 BY ADVS.C.MURALIKRISHNAN

¶20

 ABRAHAM GEORGE JACOB

¶21

 AKSHAY R.

¶22

R5 & R7 BY ADV.M.V.AMARESAN

¶23

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶24

RFA NO. 199 OF 2012

¶25

¶26

JUDGMENT

¶27

A suit for specific performance in the

¶28

alternative for the return of the advance amount was
dismissed by the trial court, against which the
plaintiff came up in appeal.

¶29

2. The questions came up for consideration in
this appeal are whether the trial court is justified
in dismissing the entire suit overlooking the
alternative relief sought for return of the advance
amount and in not granting relief of specific
performance.

¶30

3. Ext.A1 is the agreement by which it was agreed
to convey the property belonging to the first
defendant at the rate of Rs.1 lakh per cent and an
initial amount of Rs.2 lakhs was paid in advance out
of the sale consideration, for which there is no
dispute from the defendants. The defendants, inter
alia contended that they had entered into Ext.B5
agreement with respect to some other property with
the mother of plaintiff, by which the sale

¶31

¶32

RFA NO. 199 OF 2012

¶33

consideration of Rs.2 lakhs was adjusted towards the
advance amount under Ext.A1 document. But it was not
disclosed anywhere in Ext.B5 agreement, or in the
sale deed. In fact, Ext.B5 agreement is totally
silent about the case now advanced by the defendants
regarding the alleged adjustment. In the said
circumstances, it is not at all permissible to
substitute the oral version, the interested testimony
in the place of proof. Necessarily, the defence set
up by the defendants will fail and cannot be
accepted. The specific performance of the suit was
denied by the trial court, mainly on the reason that
the property was not measured out, cannot be
sustained. A strange reasoning was made by the trial
court that there is no such clause incorporated under
Ext.A1 for measuring out the property. This is the
way in which the matter was considered and
appreciated by the trial court. Even going by the
agreement, it was agreed to pay Rs.1 lakh per cent.
It would show that without measuring the property,
the sale consideration that is payable under the

¶34

¶35

RFA NO. 199 OF 2012

¶36

agreement cannot be ascertained. It should be at the
rate of Rs.1 lakh per cent. So the rejection of
relief of specific performance on the ground that
there is no provision incorporated to measure out the
property in the agreement cannot be sustained.

¶37

4.It is quite interesting that the plaintiff
came up with a suit for specific performance, though
he was not even having the capacity or ability to
collect the balance sale consideration payable under
the agreement during the period of contract and it is
well evident from the fact that even for the payment
of advance amount which comes to Rs.2,00,000/- he had
to borrow the said amount from his mother by pledging
her FD receipts in a bank. The balance sale
consideration would come to more or less Rupees Ten
lakhs, for which also there is no evidence worth the
name. The case advanced by him that he was having an
amount of Rs.10,00,000/- in cash cannot be sustained
simply on the reason that it was not kept in any of
the bank account and there is no document to show the
possession of such a huge amount in cash. It is also

¶38

RFA NO. 199 OF 2012

¶39

¶40

not disclosed or whispered from where he had
collected such a huge amount of rupees Ten lakhs. All
these vital factors were put under darkness. This has
to be read along with the fact that he had to borrow
an amount of Rupees Two lakhs from his mother by
pledging her fixed deposit receipt. Necessarily,
unless there is cogent evidence to show either the
capacity or ability to collect such a huge amount
during the subsistence of the contract, it cannot be
said that the plaintiff was ready and willing to
perform his part of contract. Necessarily, no decree
of specific performance can be granted in favour of
the plaintiff.

¶41

5. The alternative relief of return of advance
amount which comes to Rupees Two lakhs was not
granted by the trial court, for which no
satisfactory reason, much less any reason was
assigned by the trial court. Hence, the decree and
judgment of the trial court are liable to be set
aside to that extent by granting a decree of return
of advance amount of Rupees Two lakhs with interest

¶42

RFA NO. 199 OF 2012

¶43

¶44

at the rate of 6% per annum from 26.04.2007 till
today and thereafter at the rate of 6% per annum
till the date of its payment/recovery with
proportionate cost of suit as well as appeal from
the defendants and charged upon the plaint schedule
property.

¶45

The appeal will stand allowed in part
accordingly.

¶46

Sd/P.SOMARAJAN JUDGE

¶47

msp

Pookkidi Gopinathan v. Kana Puthiya Purayil Ramachandran

Case brief

What is this about?

What did the court decide?

Pookkidi Gopinathan v. Kana Puthiya Purayil Ramachandran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Dr.Suguna Devi Vs Kamala

K.M.Jayakaran Vs Deepa Jayanarayanan

Jose John Vs C.M.Saleem

Rosamma Joseph Vs T.F. Varghese

P.T.Chandran Vs Chemmalassery Povongot Vasudeva Kurup

Thaikandy Kalliani Vs Thikkandi Kanaran