Kerala High Court
Saseendran Nair vs Viswanathan Nair on 30 October, 2024
RSA No. 1057/2003
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
RSA NO. 1057 OF 2003
AGAINST THE JUDGMENT&DECREE IN A.S NO. 98/99 DATED 21.06.2003
OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF
THE JUDGMENT & DECREE DATED 09.10.1998 IN OS NO.298 OF 1996 OF SUB
COURT NEDUMANGAD
APPELLANT/RESPONDENT IN A.S/DEFENDANT IN O.S:
SASEENDRAN NAIR
S/O.KRISHNAN NAIR, RATHEESH BHAVANAM, KONGANAM,
PUTHUKULANGARA P.O., NEDUMANGAD.
BY ADV.M.P ASHOK KUMAR
RESPONDENT/APPELLANT IN A.S/PLAINTIFF IN O.S:
VISWANATHAN NAIR
S/O.NARAYANA PILLAI, BHAGAVATHY VILASAM, KONGANAM,
PUTHUKULANGARA, NEDUMANGAD.
BY ADVS.
S.BALACHANDRAN (KULASEKHARAM)
V.R.GOPU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
22.10.2024, THE COURT ON 30.10.2024, DELIVERED THE FOLLOWING:
RSA No. 1057/2003
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2024:KER:80520
CR
JUDGMENT
1. The defendant in a suit for specific performance is the appellant. This Court admitted the Regular Second Appeal on 28.11.2003 issuing notice on the following substantial question of law:
1. Whether the Lower Appellate Court was justified in granting a decree for specific performance without considering the circumstances under which the agreement was executed and the hardship that may be caused to the appellant if the document is to be executed as directed by the lower appellate court?RSA No. 1057/2003
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2024:KER:80520
2. The respondent/plaintiff filed the suit for the specific performance of Ext.A1 Agreement for sale dated 04.02.1995 by which the defendant agreed to sell the plaint schedule property having 12 cents and the residential building therein to the plaintiff for a consideration of Rs.80,000/-. The amount of advance sale consideration received by the defendant as per Ext.A1 is Rs.63,000/- and the period for execution of the sale deed was four months. According to the plaintiff though he demanded execution of the sale deed several times, the defendants purposefully evaded the request; that plaintiff caused to send Ext.A2 Lawyer Notice to the defendant demanding to execute the Sale Deed; that the same was received by the defendant as per Ext.A3 Acknowledgment Card; that the defendants did not send any reply to Ext.A2; and that the plaintiff was present at the Document Writer's office near Sub Registrar Office Vellanadu on the day mentioned in Ext.A2 i.e;05.06.1995, but RSA No. 1057/2003 4 2024:KER:80520 the defendant did not turn up; that the plaintiff is always ready and willing to perform his part of the Agreement and the defendant is wilfully refusing to execute the Sale Deed in favour of the plaintiff after receiving the balance consideration.
3.The defendants opposed the suit prayers by filing Written Statement contending, inter alia, that the defendants borrowed Rs.28,000/- from the plaintiff four years back agreeing to repay with interest at the rate of 60%; that after one year the defendant paid Rs.40,000/- to the plaintiff; that according to the plaintiff there was a still a balance of Rs.63,000/- due from the defendant; that the plaintiff demanded acknowledgment of the amount due to him and on his demand the defendant was forced to execute Ext.A1 Agreement for sale though both parties were not having any intention to treat it as an agreement for sale; that the Panchayat Member was a Mediator and witness to the agreement; that the defendant never agreed to sell the plaint RSA No. 1057/2003 5 2024:KER:80520 schedule property for Rs.80,000/- that the defendant never received Rs.63,000/- from the plaintiff; that the property will fetch more than Rs.3 lakhs; that the defendant is residing in the building in the property with family and that the defendant is willing to pay Rs.63,000/- with interest.
4. After considering the evidence adduced by the parties, the Trial Court passed Judgment and Decree refusing specific performance of Ext.A1 Agreement and allowing the plaintiff to realise Rs.63,000/- with interest at the rate of 12% per annum from the date of suit till the date of decree and at the rate of 6% per annum thereafter with proportionate costs from the defendant and also by sale of plaint schedule property.
5. The plaintiff filed A.S.No.98/1999 before the First Appellant Court and the First Appellate Court allowed the appeal with costs and in supersession of the judgment and decree passed by the Trial Court, decreed the suit allowing the plaintiff to get specific RSA No. 1057/2003 6 2024:KER:80520 performance of Ext.A1 agreement for sale by directing the plaintiff to deposit Rs.17,000/- before the Trial Court within a month and give notice of the deposit to the defendant, directing the defendant to execute the sale deed in favour of the plaintiff with regard to the plaint schedule property and the building therein within a period of two weeks on receipt of notice of deposit, failing which allowing the plaintiff to get the sale deed executed with respect to the plaint schedule property in his favour through court in accordance with law.
6. I heard the learned counsel for the appellant, Sri. M. P. Ashok Kumar, and the learned counsel for the respondent, Sri. S. Balachandran Kulasekharam.
7. The learned counsel for the appellant contended that the material averments as required under Section 16(c) of the Specific Relief Act is absent in the plaint. The learned Counsel invited the attention of the Court to Form No.13 in Appendix A CPC and RSA No. 1057/2003 7 2024:KER:80520 contended that the plaint ought to have contained the material pleadings as provided in the said Form. Section 141 CPC mandates strict compliance of the procedure provided in the Code, and as such, in the absence of material pleadings as required under Form No.13, the suit is liable to be dismissed. The Trial Court failed to frame the issue with regard to the readiness and willingness on the part of the plaintiff to perform his part of the Ext.A1 Agreement. The First Appellate Court granted a decree allowing the specific performance of Ext.A1 Agreement without considering the escalation of price of the property agreed to be sold. The decree could not be given on the basis of the Ext.A1 Agreement as the same is in violation of Section 17(f) of the Registration Act for want of registration. The decree for recovery of the advance amount could not be granted in the absence of any prayer for the same as required under Section 21(5) of the Specific Relief Act.
RSA No. 1057/20038
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8. The learned counsel for the appellant cited the decision of the Hon'ble Supreme Court in U.N. Krishnamoorthi through LRs. v. A.M. Krishnamoorthy [2022 (3) KLJ 779] in which it is held that in a suit for specific performance of a contract, the court is required to pose unto itself the question of whether the plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(C) of the Specific Relief Act.
9. The learned counsel cited the decision of this Court in Asha Joseph v. Babu C. George & Ors. [2022 (3) KHC 48] to substantiate the point that before decreeing specific performance it is obligatory to the court to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable besides taking into consideration the totality of the RSA No. 1057/2003 9 2024:KER:80520 circumstances of each case; and that specific performance being an equitable relief balance of equity has also to be struck taking into account all the relevant aspects of the matter including the latches which occurred and parties respectively responsible therefore.
10. The learned counsel cited the decision of the Hon'ble Supreme Court in Saradamani Kandappan and Anr. v. S. Rajalakshmi & Ors. [(2011) 12 SCC 18] in which it is held that laws, which may be reasonable and valid when made, can with passage of time and consequential change in circumstances become arbitrary and unreasonable. If the same principle is applied, in the case of Ext.A1 Agreement it could be said that the enforcement of the said Agreement at this distance of time would be unreasonable.
11. The learned counsel cited the decision of the Hon'ble Supreme Court in Ramakrishnan v. P.M. Muhammad Ali [2022 (7) KHC RSA No. 1057/2003 10 2024:KER:80520 170 (SC)] in which it is held that there must be specific issue framed on the readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding the parties must be put to notice; that the object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same.
12. The learned counsel cited the decision in N. Khosla v.
Rajalakshmi & Ors. [(2006) 3 SCC 605] and argued that an unregistered agreement is not admissible in evidence.
13. The learned counsel cited the decision of the Hon'ble Supreme Court in Desh Raj & Ors. v. Rohtash Singh [(2023) 3 SCC 714] to substantiate the point that recovery of the advance amount shall not be granted by the court unless it has been specifically claimed.
14. On the other hand, the learned counsel for the respondent/plaintiff contended that the First Appellate Court is RSA No. 1057/2003 11 2024:KER:80520 perfectly justified in granting a decree for specific performance. The defendant advanced untenable contentions to delay and deny performance of Ext.A1 Agreement, the execution of which is admitted by the defendant. The contention that Ext.A1 Agreement is executed as a security for loan amount is disbelieved by the Trial Court and the First Appellate Court and there is no perversity in such finding. This is a case where major portion of the sale consideration is paid on the date of execution of Ext.A1 Agreement itself. The plaintiff has been deprived of the property since the year 1995. Though Ext.A2 Lawyer Notice was sent to the defendant no Reply was sent in answer to the same presumably because the defendant did not have any valid contention in the matter. Even though issue with respect to the readiness and willingness of the plaintiff to perform the contract is not framed by the Trial Court, the said question was specifically considered by the Trial Court in the light of the RSA No. 1057/2003 12 2024:KER:80520 pleadings and evidence in the case. There is material averment in the plaint that the plaintiff is ready and willing to perform his part of the contract as required under Section 16(c) of the Specific Relief Act. The correct form of pleadings in the case of suit for specific performance provided in Appendix A is not Form
13. It is Form 47 and Form 48 which are provided for suits for specific performance. S.141 of the CPC is not the relevant provision with respect to the applicability of the Forms in Appendix A. Order VI Rule 3 of CPC is the relevant provision with respect to the form of pleadings provided in Appendix A. Order VI Rule 3 provides that the forms in Appendix A when applicable and when they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings. The verbatim reproduction of the form is not required. Ext.A2 Lawyer Notice was produced along with the plaint. It forms part of the pleadings in which the plaintiff has specifically stated that RSA No. 1057/2003 13 2024:KER:80520 the plaintiff is having sufficient financial capacity to pay the balance sale consideration and is ready to pay balance consideration. Hence, the absence of a statement in the plaint that he is ready to pay the balance sale consideration of Rs.17,000/- is not relevant or material. The First Appellate Court rightly exercised the discretion in favour of the plaintiff.
15. The learned Counsel for the respondent cited the decision of the Hon'ble Supreme Court in Dahiben V.Arvind Bhai Kalyanji Bhanusali [AIR 2020 (SC) 3310] in which it is held that document produced along with the plaint form part of the pleadings.
16. The learned Counsel cited the decision of the Hon'ble Supreme Court in Sughar Singh v. Hari Singh (Dead) through LRs. [AIR 2021 SC 5581] in which it is held that compliance of readiness and willingness has to be in spirit and substance and not in letter and form, so to insist for a mechanical production of RSA No. 1057/2003 14 2024:KER:80520 exact words of a statute is to insist for the form than the essence and that the absence of form cannot dissolve the essence already pleaded. The learned counsel cited the decision of the Hon'ble Supreme Court in P.Daivasigamani v. S.Sambandan [AIR 2022 SC 5009] in which it is held that the compliance of readiness and willingness has to be in spirit and substance and not in letter and in form while making averments in the plaint.
17. The learned counsel cited the decision of the Hon'ble Supreme Court in Motilal Jain v. Ram Dasi Devi Laws [AIR 2000 SC 2408] in which the Hon'ble Supreme Court allowed specific performance finding that the plaintiff had parted in 2/3rd of the sale consideration at the time of execution of the agreement for sale and there is no reason why he would not pay the balance 1/3rd consideration to have the property conveyed in its favour.
18. The learned Counsel cited the decision of this Court in Faizal Eroth and another v. Venkalath Raveendran and another RSA No. 1057/2003 15 2024:KER:80520 [2013 (3) KLT 1041] and the decision of the Hon'ble Supreme Court in Ramathal v. Maruthathal and others [AIR 2018(SC) 340] in which it is held that escalation of the value of the property during the pendency of the litigation cannot be a ground for denying the relief of specific performance.
19. The learned Counsel cited the decision of the Hon'ble Supreme Court in Parmindar Singh v. Gurpreet sing [(2018) 13 SCC 352] in which it is held that in case where the plaintiff was ready and willing to perform his part of the agreement and has performed his part of the agreement whereas the defendant had failed to perform his part of the agreement specific performance under the specific Reliefs Act can be granted.
20. I have considered the rival contentions.
21. It is true that the Court could award compensation to the plaintiff only if the plaintiff has claimed such compensation in the plaint in view of Section 21(5) of the Specific Relief Act. Admittedly, RSA No. 1057/2003 16 2024:KER:80520 the plaintiff has not made any prayer for compensation in the plaint. This is a case where the Trial Court granted a decree for recovery of the advance amount in favour of the plaintiff relying on Ext.A1 Agreement for Sale. The defendant did not file any appeal before the First Appellate Court. The plaintiff alone filed an appeal before the First Appellate Court, and the decree for money was substituted with the decree for specific performance of the contract. In view of non challenge against the Trial Court judgment, the defendant could not raise a plea that recovery of the advance amount shall not be granted by the court unless it has been specifically claimed. If the judgment of the First Appellate Court is set aside, the judgment of the Trial Court will automatically be restored.
22. Agreement for Sale was made compulsorily registrable by amendment to Section 17(f) of the Registration Act with effect from 13.09.2013. Ext.A1 Agreement was executed prior to the RSA No. 1057/2003 17 2024:KER:80520 said amendment, and hence, the same did not require registration. Hence, the Trial Court, as well as the First Appellate Court, were right in granting decree relying on Ext.A1 Agreement.
23. The judgment of the Trial Court reveals that the readiness and willingness on the part of the plaintiff to perform his part of the Agreement is specifically considered by the Trial Court even though no issue is framed in this regard. Omission to frame an issue as required under O.XIV R.1 of C.P.C. would not vitiate the trial in a suit where the parties went to trial fully knowing the rival case and led evidence in support of their respective contentions. This principle is laid down by the Hon'ble Supreme Court in Nedunuri Kameswaramma v. Sampati Subba Rao reported in [AIR 1963 SC 884]. In Sayeda Akhtar v. Abdul Ahad, [AIR 2003 SC 2985] the Hon'ble Supreme Court specifically held that even if no specific issue has been framed, if the parties were aware of the issue and have led evidence on RSA No. 1057/2003 18 2024:KER:80520 it, the Appellate Court should not interfere with the findings of the Trial Court. The parties have adduced evidence and advanced arguments, and the Trial Court considered the same and found in favour of the defendant. Considering the pleading and evidence in this case, the Trial Court was of the view that the plaintiff failed to comply with the mandatory provision under Section 16(c) of the Specific Relief Act, and it would disentitle the plaintiff from getting a decree for specific performance. Hence, the absence of a framing issue in this regard did not in any way prejudice the defendant.
24. The next and important question to be considered in this Appeal is whether the First Appellate Court was justified in granting the decree for specific performance. Specific performance being an equitable relief, this Court has to consider the balance of equity, the unfair advantage to the plaintiff on allowing the specific performance, and the extent of hardship that may be caused to RSA No. 1057/2003 19 2024:KER:80520 the defendant on allowing the specific performance.
25. As rightly pointed out by the learned counsel for the respondent, the relevant forms applicable in the case of a suit of specific performance at the instance of the buyer in an Agreement for sale are Form 47 and Form 48 in Appendix A of the Code of Civil Procedure and not Form No.13 provided therein. The relevant Rule applicable is Order 6 Rule 3 and not S.141. On going through the plaint in the suit, the plaintiff has made specific averment in Paragraph 9 of the Plaint that he is always ready and willing to perform his part as per the agreement for sale and that he was present before the Sub Registrar, Vellanad and the office of the document writer Bhaskaran Nair near Sub Registrar office, Vellanad on 05.06.1995 as per Ext.A2 Notice. Ext.A2 Lawyer Notice demanding performance from the defendant was produced along with the plaint. The time for performance of Ext.A1 Agreement dt 04.02.1995 was four months. The plaintiff RSA No. 1057/2003 20 2024:KER:80520 caused to send Ext.A2 Notice dt 29.05.1995 within that time. In the said Notice, he has specifically stated that he has the capacity to pay the balance sale consideration, and he is ready to pay the balance consideration. In the said Notice the defendant is specifically demanded to be present before the office of the Document Writer near to the Sub Registrar office at 10 A.M. on 05.06.1995 to execute the sale deed after receiving the balance sale consideration. Though the defendant filed Written Statement, he has no case that he went to the Sub Registrar office on 05.06.1995 as demanded by the plaintiff in Ext.A2 to register the sale deed after receiving the sale consideration. The defendant did not send any reply to Ext.A2 Lawyer Notice. In view of the specific averments in the plaint as well as in Ext.A2 Lawyer Notice the finding of the Trial Court that the plaintiff did not comply with the mandatory provision under Section 16(c) of the Specific Relief Act is unsustainable. Ext.A2 RSA No. 1057/2003 21 2024:KER:80520 lawyer Notice produced along with the Plaint forms part of the pleadings as held by the Hon'ble Supreme Court in Dahiben (supra). The essential pleadings are made by the plaintiff. Mechanical reproduction of the form or mathematical precision in the pleading is not required. Hence, I find that the plaintiff has complied with the mandatory provision under Section 16(c) of the Specific Relief Act by making necessary pleadings with respect to his readiness and willingness.
26. The Trial Court legally relied on Ext.C1 Commission Report to deny specific performance in favour of the plaintiff. According to the Trial Court, the value of the property is Rs.1,58,000/- as per Ext.C1, whereas the sale consideration in Ext.A1 is Rs.80,000/-. The Advocate Commissioner was not examined to prove Ext.C1. Ext.C1 reveals that the Advocate commissioner assessed the value of the building by himself on a rough estimation. He assessed the land value by making a local RSA No. 1057/2003 22 2024:KER:80520 enquiry by himself. The Trial Court ought not to have placed reliance on Ext.C1 Commission Report for assessing the value of the plaint schedule property. This is a case where execution of the Ext.A1 Agreement is not denied by the defendant. The contention of the defendant that Ext.A1 Agreement was executed as a security for loan is not proved by the defendant. Though the defendant contended that there was a mediator while executing the Ext.A1 agreement, he did not choose to examine the said witness. It appears that the defendant was raising untenable contentions for denying the performance of the Ext.A1 Agreement, though the plaintiff showed his readiness and willingness to perform his part of the Agreement. 27. More than 3/4
th of the sale consideration is paid by the plaintiff on the date of Ext.A1 Agreement itself, i.e., in the year 1995. The plaintiff has paid Rs.63,000/- as against the sale consideration of 80,000/- on the date of Ext.A1 Agreement itself. RSA No. 1057/2003 23
2024:KER:80520 The defendant has not disputed the financial capacity of the plaintiff to pay the balance sale consideration. The plaintiff has offered the balance consideration as per Ext.A2 lawyer Notice within time. The defendant has been enjoying both the advance consideration as well as the property since the year 1995. The balance consideration due to him is only Rs. 17,000/-. It will cause much detriment and prejudice to the plaintiff, if the advance sale consideration and interest thereon is ordered to be paid to the plaintiff at this distance of time instead of granting specific performance. It would be unjust and inequitable. It would give unfair advantage to the defendant on account of whose fault, the sale could not take place. In view of the aforesaid decisions of the Hon'ble Supreme Court and this Court, Faizal Eroth and Ramathal (supra) escalation of price of the property during the pendency of the litigation is not a ground or reason to deny specific performance. That apart, the RSA No. 1057/2003 24 2024:KER:80520 defendant is not prejudiced on account of the escalation of price when more than 3/4th of the total sale consideration was received by him on the date of Ext.A1 Agreement. The execution of the sale deed pursuant to the Ext.A1 agreement was delayed only on account of the default on the part of the defendant. When substantial portion of the sale consideration is paid by the buyer and sale could not take place only on account of reasons attributable to the seller alone, decree for specific performance in favour of the buyer has to be the normal rule. In view of the aforesaid facts and circumstances, I find that the First Appellate Court exercised its discretion correctly on sound reasons while allowing the specific performance. Hence, the Judgment and decree passed by the First Appellate Court is perfectly legal and valid.
28. In light of the aforesaid discussions, I answer the question of law formulated in this appeal in the affirmative and in favour of RSA No. 1057/2003 25 2024:KER:80520 the respondent. The Regular Second Appeal is dismissed with costs.
Sd/-
M.A.ABDUL HAKHIM JUDGE Jma