Allowed

K.S.Dilip Kumar v. K.v.Sathyan

Kerala HC14 Mar 2024RFA/834/2015

Case brief

AI extract

What is this about?

The High Court set aside the trial court's decree for return of advance sale consideration. Finding the trial court failed to exercise discretion properly and ignored the claim for refund of excess money, the High Court remanded the suit for fresh disposal de novo.

What did the court decide?

The appeal is allowed, the decree and judgment of the trial court are set aside, and the suit is remanded for disposal de novo.

K.S.Dilip Kumar Vs K.v.Sathyan — Specific Performance | Kerala HC (2024)

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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 SATHISH NINAN

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THURSDAY, THE 14^TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945

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RFA NO. 834 OF 2015

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AGAINST THE JUDGMENT AND DECREE DATED 30.07.2015 IN O.S.NO.923 OF 2012 OF THE PRINCIPAL SUB COURT, IRINJALAKUDA APPELLANT/PLAINTIFF:

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K.S.DILIP KUMAR S/O.SUBRAHMANIAN, KOLLEZHATHU HOUSE, MELOOR VILLAGE & DESOM, PIN 680311 BY ADVS. SRI.C.DILIP SRI.P.N.VIJAYAN NAIR SRI.R.PRADEEP

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RESPONDENTS/DEFENDANTS:

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1 K.V.SATHYAN S/O.VELUKUTTY, KALLITAMKUZHI HOUSE, MELOOR VILLAGE & DESOM, MUKUNDAPURAM TALUK, REPRESENTED BY HIS WIFE AS WELL AS POWER OF ATTONRNEY HOLDER SMT. REKHA, W/O.K.V.SATHYAN, KALLITAMKUZHI HOUSE, MELOOR VILLAGE & DESOM, MUKUNDAPURAM TALUK, PIN 680311

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2 REKHA W/O.K.V.SATHYAN, KALLITAMKUZHI HOUSE, MELOOR VILLAGE & DESOM, MUKUNDAPURAM TALUK, PIN 680311 BY ADVS. K.G.BALASUBRAMANIAN - R1 AMBILY (PREMKUMAR)

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.F.A.No.834 of 2015

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= = = = = = = = = = = = = = = = = = Dated this the 14^th day of March, 2024

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JUDGMENT

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The suit for specific performance of an agreement

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for sale and for return of the excess money paid, was decreed by the trial court for return of the advance sale consideration. The plaintiff is in appeal.

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Ext.A1 agreement dated 11.10.2006 was entered into between the plaintiff, the 1^st defendant and his mother. As per Ext.A1, 18 cents of property belonging to the 1^st defendant, and 6.5 cents of property belonging to his mother were agreed to be conveyed to the plaintiff. The consideration payable was Rs.10,000/- per cent. On the date of agreement, an amount of Rs.65,000/was paid towards advance sale consideration. The period fixed for performance was, on or before 11.01.2007. Thereafter, on 23.06.2008, the plaintiff paid a further amount of Rs.2,50,000/- to enable the defendant to clear

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R.F.A.No.834 of 2015 -: 2 :-

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the encumbrance over the property. The second defendant is the power of attorney holder and wife of the first

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defendant. Alleging failure on the part of the defendants to perform the agreement, the suit was filed. The plaintiff seeks for specific performance of Ext.A1 agreement and also return of the excess amount of Rs.70,000/- paid by him.

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Though the defendants had filed a written statement, thereafter they remained ex parte .

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The trial court granted a decree in favour of

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the plaintiff for return of the advance sale consideration.

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I have heard Shri.C. Dilip, the learned counsel for the appellant and Shri.K.G. Balasubramanian, the learned counsel for the respondents.

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The points that arise for determination are;

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i) Has there been a proper exercise of discretion under Section 20 of the Specific Relief Act by the trial court?

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R.F.A.No.834 of 2015 -: 3 :-

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ii) Did the trial court fail to exercise its jurisdiction by not considering the prayer for return of the alleged excess amount paid?

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A reading of the impugned judgment reveals

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that, the court has not considered the circumstances if

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any, to exercise its discretion not to grant a decree for specific performance. But for the stating, “considering the facts and circumstances”, no reason is stated. On that sole ground, the decree and judgment of the trial court is liable to be interfered with.

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It is also seen that, though the plaint contained a claim for refund of the alleged excess sale consideration, the said relief was not even adverted to.

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The learned counsel for the 1^st respondent would contend that, though the mother had performed her part of the agreement, the suit is on the entire agreement. The learned counsel further urged that the suit is barred by limitation. The defendants who had

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R.F.A.No.834 of 2015 -: 4 :-

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filed a written statement did not care to contest the suit.

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As noticed, the decree and judgment of the

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trial court are liable to be interfered with and the suit is to be remanded. I deem it appropriate to grant an opportunity to both the plaintiff and the defendants to adduce evidence. All the contentions of the parties are left open.

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Resultantly, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal de novo . The parties shall be afforded an opportunity to adduce evidence. Parties to appear before the trial court on 11.04.2024 . The Court fee paid on the memorandum of appeal shall be refunded to the appellant.

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Sd/-

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SATHISH NINAN, JUDGE

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K.S.Dilip Kumar v. K.v.Sathyan

Case brief

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K.S.Dilip Kumar v. K.v.Sathyan

Case brief

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What did the court decide?

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