Kerala High Court
Erikkil Thavatha Basheer vs Poopurambath Kaithal Khadeeja on 14 June, 2001
Equivalent citations: AIR2001KER346, AIR 2001 KERALA 346, ILR(KER) 2001 (3) KER 166, (2001) 2 KER LT 632, (2001) 3 CIVILCOURTC 86, (2002) 3 RECCIVR 166, (2002) 1 CIVLJ 223, (2001) 2 KER LJ 25
Author: Lekshmikutty
Bench: Lekshmikutty
JUDGMENT Lekshmikutty, J.
1. Against the judgment in O.S. No. 106 of 1989 on the file of the Court of the Subordinate Judge, Badagara this appeal is filed by the plaintiff, The appellant as plaintiff filed the suit for specific performance of an agreement to sell. As per the plaint averment, the appellant and respondent executed Ext. A-1 agreement dated 16-1-1989 whereby the respondent agreed to sell the plaint schedule property in favour of the appellant at the rate of Rs. 10,250/- per cent. The total extent of the property is 16.75 cents. On the date of agreement, the appellant paid a sum of Rs. 25,000/- as advance. The time stipulated for the payment of the balance sale consideration was six months from the date of agreement and the respondent should execute the sale deed on receipt of the balance consideration. The appellant approached the respondent and her father for getting the sale deed executed and he was always ready and willing to pay the balance sale consideration even before the expiry of the period stipulated in the agreement. But the respondent first took time till the Bakrid was over and again wanted further time stating that the mother of the respondent is seriously ill and the document will be registered after she recovered from her illness. The period specified in the agreement expired on 15-7-1989. On 17-7-1989 the appellant received Ext. A-2 notice stating that the time stipulated in the agreement is over and hence she revoked the agreement. The appellant sent a notice to the respondent on 12-8-1989 stating the correct facts and requesting for specific performance.
2. The respondent denied the allegations in the plaint and contended that the document could not be executed due to the failure on the part of the appellant to perform his part of the contract. He was never ready and willing to get the document executed. It is admitted that an agreement was executed between the appellant and respondent on 16-1-1989 agreeing to sell the property at the rate of Rs. 10,250/- percent. His also admitted that on the date of Ext. A-l agreement, a sum of Rs. 25,000/- was received by the respondent as advance. There was a further stipulation in the document that the appellant has to pay the balance sale consideration after measuring the property and preparing the sale deed at his expense within a period of six months and the document has to be registered at his expense. The appellant has failed to perform his part of the contract within the stipulated period and so the respondent issued Ext. A-2 notice to the appellant revoking the contract. It is her further case that after the agreement, the appellant had never approached her for the purpose of getting the document executed. He never approached her to get the title deed for preparing the draft sale deed and measuring the property. The allegation that the respondent and her father Pokku Haji protracted the matter one way or other is utterly false. Time is the essence of the contract and since the time has been expired, she is not bound to execute the sale deed in favour of the appellant. The allegation that the appellant along with Khader, Sekharan and Usuf came to the house of the respondent and her father had demanded for the due execution of the sale deed is not correct. But after receipt of Ext. A-2 notice, the appellant along with the above said three persons came to the house of the respondent and requested for the return of the advanced money on 30-7-1989 and the respondent and her father agreed to return the same on 1-8-1989. Accordingly, on 1-8-1989, the appellant along with Khader and Usuf again came to their house. One Ibrahim Haji also was present in their house as per the direction of the father of the respondent. The amount was paid by Pokku Haji, father of the respondent to the appellant through Ibrahim Haji. Prior to the payment of the amount, the appellant has handed over the agreement to Ibrahim Haji. When Ibrahim Haji was about to hand over the agreement to Pokku Haji, the father of the respondent, the appellant informed that since he is a merchant and that the amount was not shown in the account, the agreement has to be destroyed. So, it was destroyed by setting fire by Ibrahim Haji in the presence of all who present there. When they insisted for receipt for payment of the amount, the appellant informed that since the amount was not shown in the account, it would be difficult for him to give the receipt. But Ibrahim Haji and Khader who were present at the time of payment has issued a slip in writing to the father of the defendant stating that the amount was repaid to the appellant. It was only after the filing of the suit, the respondent and her father came to know that the appellant has cheated Ibrahim Haji, the mediators and Pokku Haji by showing a photostat copy of the agreement instead of the original. The father of the respondent is ready to take oath in any Mosque stating that he has repaid the amount to the appellant. Usuf mentioned in the notice sent by the appellant is his business partner for real estate business. Since the appellant has not performed his part of the agreement within the stipulated time, the respondent is entitled to revoke the agreement. She denies that the appellant has been ready and is always ready and willing to perform his part of the agreement. In these circumstances, she prays for a dismissal of the suit with costs.
3. The question to be decided in this appeal is whether the appellant is entitled to get a decree for specific performance and whether the respondent returned the advance amount of Rs. 25,000/- as contended in the written statement. There is no dispute with regard to the fact that the appellant and the respondent entered into Ext. A-1 agreement dated 16-1-1989 whereby the respondent agreed to sell her property to the appellant at the rate of Rs. 10,250/-per cent and a sum of Rs. 25,000/- was paid as advance to the respondent on the same day. It is the admitted case of both parties that the sale deed is to be executed within six months from the date of Ext. A-1 dated 16-1-1989. As per Ext. A-1, appellant agreed to pay the balance of sale consideration on the date of registration of the document and he will meet the expenses for registration and measurement of the property. It is submitted by the learned counsel for the appellant that the appellant was ever ready and still ready to perform his part of the agreement but the respondent was never ready to perform her part of the agreement. Even though the appellant approached the respondent for getting the title deed for preparaton of the sale deed and measurement of the property, it was not handed over to him. Instead the respondent and her father protracted the matter somehow or other.
4. But the contention of the respondent is that the appellant was not ready to perform his part of the contract and hence after the expiry of the stipulated period respondent sent Ext. A-2 letter to the appellant stating that she is not liable to execute the sale deed since time is the essence of the contract. It is further submitted that after receipt of Ext. A-2, on 30-7-1989, the appellant along with one Khader, Sekharan, Usuf and Aboobacker approached the respondent and her father Pokku Haji and informed them that he is satisfied with the return of money and they agreed the same. Accordingly the respondent returned Rs. 25,000/-on 1-8-1989 in the presence of Khader and Ibrahim Haji. After acceptance of the said amount the appellant issued Ext. A-3 lawyer notice for specific performance of the agreement without any bona fides. At the time of return of the money, the mediators, Khader, Sekharan, Usuf and Aboobacker were present and at the request of the father of the respondent DW 2, Ibrahim Haji was also present in the house of the respondent. According to the respondent, her father Pokku Haji entrusted Rs. 25,000/- to the said Ibrahim Haji and he returned the same to the appellant in the presence of the said mediators. So the appellant is not entitled to any relief.
5. The appellant was examined as PW 1. He gave evidence that he was ready and willing and still ready to perform his part of the agreement. Before expiry of the period, he approached the respondent several times and informed his readiness and willingness to perform his part of the agreement. It is further sworn to by him that he has been and is still ready to perform his part of the contract. Prior to Ext. A-2 letter, he met the respondent and her father Pokku Haji, but they told him that the document shall be executed after Bakrid is over and then told that the mother of the respondent is seriously ill and the document shall be registered after she recovered from her illness. While so, Ext. A-2 notice was sent. But this version of PW 1 cannot be believed for a moment. If the version given by PW 1 is true, there is no impediment for him for sending the reply stating the real state of affairs. According to him on receipt of Ext. A-2, he went to the respondent along with Khader, Sekharan and Usuf and the respondent and her father Pokku Haji agreed to execute the sale deed. But none of them was cited and examined to prove the said fact. The appellant has no case that they are not alive at the time of evidence. Ext. A-3 lawyer notice was sent after a lapse of about 30 days. This conduct of the appellant seems to be strange.
6. In order to get a decree for specific performance, the appellant must prove that he was and is still ready to perform his part of the agreement. Admittedly the property was not measured and the draft of the sale deed was not prepared. It is true that the respondent has a case that the appellant had never approached either the respondent or her father Pokku Haji. If actually, the appellant was ready and willing to perform his part of the contract, he might have atleast sent a notice stating his readiness and willingness. Apart from the interested testimony of the appellant there is no other evidence to show his readiness and willingness to perform his part of the contract. That mediators allegedly intervened in the transaction was not examined. The relief of specific performance is a discretionary remedy and that discretion must be exercised on sound principles and circumstances. The readiness and willingness of the appellant to perform his part of the contract is a question of fact to be inferred from the facts and circumstances of each case. The conduct of the party and the attending circumstances also is to be looked into. Here, in this case. the appellant has not adduced any evidence to show that the balance of sale consideration was ready with him. There is only the self serving evidence of PW 1 alone regarding the same. During examination, he has admitted that he was having bank accounts in three different banks. But he has not produced the pass books in respect of the accounts or other documents. In the circumstances it cannot be found that the appellant was ready and willing to perform his part of the contract.
7. Then the other fact to be considered is in respect of the advance money. The contention of the respondent is that after receipt of Ext. A-2 notice the appellant along with the mediators approached the respondent and her father on 30-7-1989 and informed them that he is satisfied with the return of the advanced amount. They agreed to return the same on the next day i.e. on 1-8-1989. On the previous day, money was withdrawn from the bank and it was returned to the appellant in the presence of meditors and Ibrahim Haji. The father of the respondent was examined as DW 1. He gave evidence in accordance with the contention in the written statement. According to him, the appellant approached him with Khader, and Usuf on 1-8-1987. At his request Ibrahim Haji also reached to his house. DW 1 entrusted the money with Ibrahim Haji and handed over Rs. 25,000/- to the appellant in the presence of the mediators. The said Ibrahim Haji was examined as DW 2. According to him, the appellant handed over Ext. A-1 to him. He gave the same to the appellant. According to him, PW 1 refused to give receipt stating that he had not shown the advanced amount in his account. So it is impossible for him to give receipt. PW 1 also wanted to destroy the agreement and as required by him it was set fire by DW 2. The respondent relies on Ext. B-1 for return of Rs. 25,000/- to PW 1. But it is significant to note, that the signature of the appellant was not obtained. It was signed by DW 2 and one Khader. DW 3 was examined to prove that on his way to the house of Pokku Haji, he saw PW 1 and his friends and he told them that the matter was settled and Rs. 25,000/- was received by him. But the versions given by these witnesses cannot be believed. Firstly, the original document is produced by the appellant along with the suit. During cross-examination, DW 2 deposed before Court that the was under the impression that the original document was handed over to him, but actually it was a photostat copy. It is admitted by him during examination that he can identify the original and photostat copy of the document. So, the version given by DWs 1 and 2 cannot be believed. Further, Ext. B-1 did not contain the signature of PW 1. The explanation offered by the witnesses regarding the receipt is not at all satisfactory. It is difficult to believe such a huge sum is given to PW 1 without obtaining any receipt even. According to DW 3, DW 1 had told him about the transaction and on 1-9-1989 while he was going to the house of DW 1, he saw PW 1, one Usuf and Khader returning from his house and then PW 1 told him that they settled the matter and returned the money. The case of the respondent is that the transaction was on 1-8-1989. A perusal of his evidence shows that he is not a reliable witness. The other attestor to Ext. B-l was also not cited and examined. So, there is no acceptable evidence to show that the respondent had returned Rs. 25,000/- to the appellant as contended in the written statement. It is true that there is a clause for forfeiture of the advanced money if the appellant commits breach of the contract. But there is nothing on record to show that due to the breach any damage has been sustained to the respondent. In such circumstances, the decree and judgment of the Court below are liable to be set aside. The plaintiff/appellant is given a decree for recovery of Rs. 25,000/- with 6% interest from the date of suit till realisation from the respondent and her assets. In the circumstances of the case, parties are directed to bear their respective costs.