Partly allowed

A G Asha v. S.Devadasan

Kerala HC11 Mar 2024RFA/843/2011

Case brief

AI extract

What is this about?

Appeal by plaintiff seeking specific performance of a sale agreement after trial court decreed only refund of advance with interest. High Court affirmed the finding of failure to prove readiness and willingness, but modified the decree to run interest from the date of suit instead of date of decree.

What did the court decide?

Interest on refund of advance sale consideration directed payable from date of suit (12.12.2007) till realisation; rest of trial court decree affirmed.

A G Asha Vs S.Devadasan — 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 MONDAY, THE 11^TH DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 RFA NO. 843 OF 2011 (H)

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AGAINST THE JUDGMENT AND DECREE DATED 31.08.2011 IN OS NO.443 OF 2007 OF III ADDITIONAL SUB COURT, KOZHIKODE

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APPELLANT/PLAINTIFF:

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A G ASHA, AGED 46 YEARS, D/O GOPALAN NAIR, "AISWARYA", P.O.CIVIL STATION, VENGERI VILLAGE, NEDUNGOTTUR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.

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BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.SARITHA DAVID CHUNKATH SMT.SMITHA GEORGE SRI.S.M.PRASANTH SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI SMT.R.S.ASWINI SANKAR SHRI.G.RENJITH

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RESPONDENT/DEFENDANT:

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S.DEVADASAN, AGED 50 YEARS, S/O.SAMBRIKKEL DAMODHARAN, MANDIDUKKIL PARAMBU, PAROPPADY, P.O.MERIKUNNU, CHEVAYUR VILLAGE AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673017.

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BY ADVS. SRI.K.M.JAMALUDHEEN (B/O)

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.F.A. No.843 of 2011

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= = = = = = = = = = = = = = = = = = Dated this the 11^th day of March, 2024

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J U D G M E N T

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The suit for specific performance with alternate

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relief for refund of advance sale consideration, was

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decreed for the alternate relief. Seeking the main

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relief for specific performance, the plaintiff is in appeal.

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Ext.A1 agreement dated 27.12.2006 executed

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between the plaintiff and the defendant is sought to be specifically enforced. Under Ext.A1, the defendant

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agreed to convey 3.64 ares of property with a residential building thereon to the plaintiff for a total sale consideration of ₹ 9 lakhs. On the date of agreement, an amount of ₹ 1,50,000/- was paid towards advance sale consideration. The period fixed for performance was eight months. Alleging that in spite of repeated demands the defendant has failed to perform,

RFA No.843 of 2011

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the suit was filed.

The defendant challenged the readiness and

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willingness of the plaintiff.

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The trial court found that the plaintiff has

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failed to prove his readiness and willingness to go ahead with the agreement. Accordingly the prayer for specific performance was declined. The plaintiff was

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granted a decree for return of the advance sale consideration with interest, charged on the property.

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I have heard learned counsel on either side.

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The point that arises for determination are :-

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(i) Is the finding of the trial court with regard to the failure

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of the plaintiff to prove his readiness and willingness to perform Ext.A1 agreement, founded on evidence ?

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(ii) Does the decree and judgment of the trial court warrant any interference?

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The period fixed for performance of Ext.A1 agreement dated 27.12.2006 was eight months. It expired

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RFA No.843 of 2011

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-: 3 :-

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on 27.08.2007. On 07.09.2007, the defendant issued Ext.A2 notice to the plaintiff alleging failure on the part of the plaintiff to perform the agreement and calling upon him to have the sale deed executed within 21 days therefrom. On 06.10.2007, the plaintiff paid a further amount of ₹ 1,75,000/- towards the sale consideration. Such payment was endorsed on the reverse of Ext.A1 agreement. On 30.11.2007, the defendant again issued a notice marked as Ext.A3, calling upon the plaintiff to perform the agreement within 5 days of receipt thereof. To the said notice, the plaintiff issued Ext.A4 reply dated 06.12.2007 alleging that he was always ready and willing to perform the agreement but that the defendant had failed to clear off the liabilities over the properties and hand over the relevant documents. According to the plaintiff, there were arrears of electricity charges over the property and that the defendant had failed to clear off the same.

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RFA No.843 of 2011

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The arrears of electricity charges was cleared only in November 2007 as admitted by DW1, it is contended.

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In the written statement, the defendant specifically contended that the plaintiff was unable to raise the balance sale consideration and it was for the said reason that the transaction did not go through. In the written statement it was contended thus :-

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“hlIÄ- Xo-cp hm-§p-hm-\p-Å m-¡n {]-Xn^-ew kw-Jy H-cp-¡p-hm³ A-hÀ-¡v C-Xp-h-scbpw km-[n¨n-«nsÃ¶pw B Imc-Ww കകകൊണ v am-{X-am-Wv A-h-[n¡I-¯v h-l-IÄ kw--Ôn-¨p-Å c-Pn-ÌÀ ]qÀ-¯n-I-cn¡m³ km-[n-¡m-sX h-¶n-«p-ÅXv.”

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The financial capacity of the plaintiff was under challenge. To show that the plaintiff was in possession of sufficient funds, she produced Ext.A5 copy of the bank account statement in the name of her husband. The statement is for the period from 15.12.2006 till

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31.01.2007 ie, for a month. Here it is to be noted that

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RFA No.843 of 2011

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Ext.A1 agreement itself was entered into only on 27.12.2006. As per Ext.A5, as on 31.01.2007 the balance available in the account was only ₹ 5,40,000/-. The bank account statement relating to the subsequent period is curiously not produced. When PW1 was cross-examined as

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to whether the amount as seen in Ext.A5 statement is still available, she pleaded ignorance. Therefore Ext.A5 cannot be accepted to find that the plaintiff was possessed of sufficient funds during the relevant period, to pay the balance consideration.

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To contend that the plaintiff had sufficient financial capacity, she has also relied on Exts.A6, A7

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and A8 documents which are license deeds in relation to building belonging to the plaintiff's husband. Ext.A6 agreement is dated 03.03.2007. The plaintiff claims that the refundable deposit amount of ₹ 4 lakhs made under the agreement was available. However, there is no explanation as to where the said amount was maintained

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RFA No.843 of 2011

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to enable purchase of property. Similar is the case of Ext.A7 agreement dated 02.05.2007 whereunder an amount of ₹ 1,67,000/- was available as security deposit. So also is the case with Ext.A8 license deed dated 12.10.2006 whereunder an amount of ₹ 3 lakhs was available as security deposit. The availability of such deposit amounts with the plaintiff has not been proved. The learned counsel for the appellant would contend that the amount was kept in cash with the plaintiff's husband. It is very difficult to accept such a claim.

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The above has to be viewed in the background of the fact that the period fixed for performance expired on 27.08.2006, and on 07.09.2007 the defendant issued Ext.A2 notice to the plaintiff calling upon him to perform the contract. Admittedly no reply was send to Ext.A2. Thereafter on 06.10.2007 only an amount of ₹ 1,75,000/- was paid by the defendant. Thereafter, on 30.11.2007 the defendant again issued Ext.A3 notice

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RFA No.843 of 2011

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seeking performance of the agreement. The contention that the defendant failed to clear off the electricity charge arrears which contributed to the non-performance, is difficult to be accepted for the reason that, Ext.B4 series receipts of payment of electricity arrears show that the total amount paid is only ₹ 610/-. It cannot be believed that it was consequent on the non-settlement of such liability that the plaintiff did not go ahead with the transaction. The totality of the circumstances would indicate that the plaintiff was not ready and willing to perform the agreement, which resulted in its breach. The finding of the trial court in the said regard is only to be affirmed.

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On the finding as above with regard to the readiness and willingness of the plaintiff, the trial court was right in having declined a decree for specific performance.

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RFA No.843 of 2011

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The trial court has granted a decree for return

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of the advance sale consideration with 10% interest but has limited it from the date of decree till realisation. I am of the opinion that interest is liable be granted from the date of the suit viz. 12.12.2007.

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Resultantly, the appeal is allowed in part. In modification of the decree and judgment of the trial court it is ordered that the interest as directed by the trial court shall be payable from the date of suit (12.12.2007) till realisation. In all other respects, the decree and judgment of the trial court is affirmed. No costs.

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Sd/- SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

A G Asha v. S.Devadasan

Case brief

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A G Asha v. S.Devadasan

Case brief

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