Kerala High Court
M.M.Joseph(Died)* vs Sadanandan on 7 November, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
2024:KER:82903
AS NO. 361 OF 2002
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
AS NO. 361 OF 2002
AGAINST THE ORDER/JUDGMENT DATED 25.01.2002 IN OS NO.224
OF 1997 OF SUB COURT, PALAKKAD
PETITIONERS/APPELLANTS:
1 M.M.JOSEPH *(DIED)
AGED 62 YEARS, S/O.MATHU,
RESIDING AT MAZHUVANCHERRY HOUSE,
VADAKKANTE KOTTIL,
MAYILAMPULLI, PUDUPPARIYARAM VILLAGE,
PALAKKAD DISTRICT.
*ADDL.PETITIONERS 2 TO 9 IMPLEADED
2 ANNAKUTTY
W/O.LATE M.M.JOSEPH,
AGED 72 YEARS,
MAZHUVANCHERRY HOUSE, VADAKKANTEKADU,
VELIKKAD, MUNDUR, PUTHUPPARIYARAM VILLAGE,
PALAKKAD TALUK, PALAKKAD DISTRICT
3 M.J. BABY
S/O. LATE M.M. JOSEPH,
AGED 53YEARS,
MAZHUVANCHERRY HOUSE, VADAKKANTEKADU-NOCHIPULLY,
PUTHUPPARIYARAM VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT
4 M.O.MERCY
W/O.M.PAUL, D/O.M.M.JOSEPH,
KOVILPARAMBIL HOUSE, KADAMBIDY,
CHITTUR, PALAKKAD
5 ROSILY JOSEPH ALIAS ROSILY SAVIO
AGED 48 YEARS, D/O M.M JOSEPH,
PALLATHUKUNNEL, MANJUSHA BHAVAN,
2024:KER:82903
AS NO. 361 OF 2002
2
PEERUMEDU, IDUKKI DISTRICT
6 MRS.DAISY CHACKO
D/O M.M JOSEPH, AGED 40 YEARS, KADUTHANAM,
THAZHAEKODE WEST, MALAPPURAM DISTRICT
7 MRS.MINI BENNY
D/O M.M JOSEPH, AGED 37 YEARS,
THIRUMALAYIL, PARAPUHA, IDUKKI DISTRICT.
8 JINI JOSEPH
D/O M.M JOSEPH, AGED 32 YEARS,
DOMINICAN ASHRAM-80 FT ROAD, BANGALORE 560 038,
9 SHAJI JOSEPH
AGED 34 YEARS, S/O M.M JOSEPH,
MAYUILAMPULLY,NAMBULLIPURA,
MUNDUR, PALAKKAD
(ALL ARE REPRESENTED BY POWER OF ATTORNEY HOLDER,
M.J BABY, MAZHUVANCHERRY HOUSE,
VADAKKANTE KADU NOCHIPPALLY,
PUDUPPARIYARAM VILLAGE, PALAKKAD)
*(LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 9 VIDE
ORDER DATED 5/09/2008 IN IA 3713/2008)
*ADDL.PETITIONER NO.10 IMPLEADED
10 PAUL JOSEPH,
AGED 44 YEARS
S/O.LATE M.M.JOSEPH,
MAZHUVANCHERRY HOUSE, VADAKKANTEKADU,
VELLIKKAD P.O., PALAKKAD DISTRICT
PIN- 678592
*LEGAL HEIR OF THE DECEASED SOLE PETITIONER IS
IMPLEADED AS ADDL.PETITIONER NO.10 VIDE ORDER DATED
30/10/08 ON IA 4511/08.
BY ADV P.M.POULOSE
2024:KER:82903
AS NO. 361 OF 2002
3
RESPONDENTS/RESPONDENTS:
1 SADANANDAN, AGED 47 YERAS, S/O. BHASKARAN,
KENATHPARAMBA, KOPPAM VILLAGE, PALAKKAD DISTRICT.
2 PREMANATHAN
AGED 45 YEARS, S/O. BHASKARAN, KENATHPARAMBA,
KOPPAM VILLAGE, PALAKKAD DISTRICT.
3 SOWBHAGYAVATHY *DIED
AGED 43 YEARS, D/O. BHASKARAN, KENATHPARAMBA,
KOPPAM VILLAGE, PALAKKAD DISTRICT.
4 SAVITHRI
AGED 40 YEARS, D/O. BHASKARAN, KENATHPARAMBA,
KOPPAM VILLAGE, PALAKKAD DISTRICT.
5 KANCHANA, AGED 38 YEARS, D/O. BHASKARAN,
KENATHPARAMBA, KOPPAM VILLAGE, PALAKKAD DISTRICT
*ADDL.6TH RESPONDENT IMPLEADED
6 V.DIVAKARAN
AGED 66 YEARS, S/O.M.C.VELAPPAN,
RESIDING AT KANATHPARAMBA, KOPPAM VILLAGE,
PALAKKAD DISTRICT, PIN - 678 001.
*LEGAL HEIR OF THE 3RD RESPONDENT IS IMPLEADED AS
ADDITIONAL RESPONDENT NO.6 IN I.A. NO.1/2022 VIDE
ORDER DATED 12.02.2024.
BY ADVS.
V.R.KESAVA KAIMAL - R2 & R4
D.KRISHNA PRASAD - R1, R3 & R5
M.HARISHARMA - R1, R3 & R5
JOJI VARGHESE - R1 to R5
D.NARENDRANATH - R1, R3 & R5
M.S.KALESH(K/109/1997) - R6
HARISH GOPINATH(K/232/1999) - R6
R.S.KALKURA - R6
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:82903
AS NO. 361 OF 2002
4
T.R. RAVI, J.
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A.S. No.361 of 2002
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Dated this the 7th day of November, 2024
ORDER
The appeal is filed by the plaintiff in a suit for a specific performance being aggrieved by the denial of a decree for a specific performance. The trial court has, by the impugned judgment, decreed the suit in part by ordering the return of the advance amount of ₹6,00,000/- which has been paid by the plaintiff. The court has not granted interest on the said amount and no reason is also forthcoming for denying the interest. The short facts required are as follows:
2. By Ext.A1 agreement dated 05.07.1996, the defendants agreed to transfer an extent of 72 Cents of land to the plaintiff.
The total consideration came to ₹14,76,000/-. On the date of the agreement, a sum of ₹4,00,000/- had been paid. Subsequently, on the date fixed in Ext.A1 for payment of a sum of ₹2,00,000/-, the said amount was also paid. This fact is proved by the endorsement in the Ext.A1 agreement. The time for completion of the sale was 11 months and the period was due to end on 05.06.1997. The 2024:KER:82903 AS NO. 361 OF 2002 5 above facts are admitted. Before the expiry of the period stipulated in Ext.A1, the defendants sent Ext.A2 notice to the plaintiff through their lawyer, alleging that the plaintiff was not ready to pay the balance amount even though the defendants had satisfied their part of the agreement and informing the plaintiff that they are still willing to execute the sale deed. Even before receipt of Ext.A2, the plaintiff sent Ext.B1 notice on 03.06.1997 expressing his readiness and willingness to execute the contract. It is stated in the notice that after having executed the agreement, the defendants carried out agricultural activities on the property. The plaintiff took exception to such behaviour, since the defendants had received almost 50% of the amount due to be paid under the contract. The notice says that the legal heirship certificate, encumbrance certificate, possession certificate, tax receipt, the order of the Land Tribunal regarding the purchase certificate, and the death certificate of the defendants' father were required for the purpose of execution of the sale deed. It is also stated that the property must be measured. The notice specifically says that the plaintiff is ready and willing to perform his part. It can be seen from Exts.A2 and B1 that both sides were expressing their 2024:KER:82903 AS NO. 361 OF 2002 6 readiness and willingness to perform their part of the contract. Ext.A3 is the reply sent by the plaintiff to Ext.A2 notice issued by the defendants. The notice denies the receipt of documents relating to the purchase of a 7 meter way for reaching the plaint schedule property and the other documents, as claimed in Ext.A2. The notice is dated 06.06.1997, one day after the date of expiry of the period specified in Ext.A1. In the said letter also, the plaintiff expresses his readiness and willingness. In reply to Ext.A3 notice, the defendants sent Ext.A4 notice through their Lawyer on 19.06.1997, wherein it is claimed that land for putting up a 7 meter wide road had already been purchased and a copy of the document had been handed over. The notice refers to the notices dated 02.06.1997 and 03.06.1997 (Exts.A2 & B1). The notice states that the defendants were willing to perform their part of the contract, that none of the documents which were required by the plaintiff are necessary for the execution of the sale deed, and that those are not aspects that have been agreed upon in Ext.A1. It is alleged that the attempt of the plaintiff is to gain time since there had been a violation of the agreement on his part. It is also stated in the notice that the notices issued by the plaintiff were only to get over 2024:KER:82903 AS NO. 361 OF 2002 7 the plaintiff's difficulty in arranging the necessary funds to complete the contract. The notice further says that the amount received as advance is adjusted towards the loss that has been sustained by the defendants due to the non-performance of the contract by the plaintiff. This was followed by another advocate notice dated 14.07.1997 issued by the plaintiff to the defendants wherein also it is stated that the plaintiff is ready and willing to complete the sale.
3. The suit was filed immediately thereafter on 04.08.1997. In the plaint also, the plaintiff has stated that he is ready and willing to perform his part of the contract and there was no fault on his part. It is contended that the defendants are not entitled to forfeit the advance amount paid. Ext.A1 agreement stipulates that the defendants shall hand over the necessary documents for the execution of the sale deed 10 days prior to the date fixed in Ext.A1. The plaintiff contends that the said condition had not been complied with by the defendants. In the written statement, the defendants admitted the execution of the Ext.A1 agreement and the receipt of the sum of ₹6,00,000/- as stipulated in Ext.A1. However, the rest of the contentions are denied. The defendants 2024:KER:82903 AS NO. 361 OF 2002 8 admit that there was a stipulation for handing over documents 10 days prior to the date for registration. However, there is no statement that the said documents were handed over as agreed to in Ext.A1. All that is stated is that ₹2,00,000/- was paid by the plaintiff only after being satisfied that the defendants had provided the way to the property. It is alleged that to the best of the knowledge of the defendants, the plaintiff was not in possession of the money required for completing the contract. It is alleged that it was the duty of the plaintiff to fix the date of registration within the period stipulated in Ext.A1 and intimate the defendants well in advance to enable the defendants to make available the required documents of title, possession certificate, and encumbrance certificate. It is stated that no such intimation was received and there was no necessity to arrange for the documents well in advance. It is also contended that the plaintiff made additional demands, which were not part of the contract, like the KLU order, etc. The trial court considered the contentions and found that the plaintiff was not willing to perform his part of the contract, and there were laches on his part which disentitled him from getting a decree for specific performance. The court found that the plaintiff 2024:KER:82903 AS NO. 361 OF 2002 9 was only entitled to the return of money.
4. There appears to be a mistake in the judgment insofar as the issues that were raised for consideration. Issues relating to a totally different suit wherein the validity of a 'Will' was in question are seen incorporated in the judgment. However, I am ignoring the said mistake in view of the fact that the real questions involved have been considered by the court and that this appeal has been pending in this court for the past 22 years. The trial court found that time is not the essence of the contract as far as the sale of the immovable property is concerned. The court also noted that the defendants have no case that PW1 did not have sufficient funds. It is also stated that the plaintiff had paid ₹6,00,000/- within the time stipulated and he cannot be expected to go out of the contract and lose his advance amount. The court also noticed the fact that no document had been produced by the defendants to show that land for the 7 meter wide way had been purchased as stipulated in Ext.A1. The trial court referred to the decision of this Court in Jayalakshmi v. Anil Kumar reported in (1996 (1) KLT 727), wherein this Court had held that there is a requirement to aver and prove that the plaintiff was always ready and willing to perform the 2024:KER:82903 AS NO. 361 OF 2002 10 essential terms of the contract and that the readiness and willingness should be there throughout the life of the contract or till a decree is passed by the court. After noticing the law regarding readiness and willingness, the court found that the total consideration is ₹14,76,000/- and a huge balance of ₹8,76,000/- is still due to be paid. The court found that the defendants had cleared the issues relating to agricultural problems and obtained a possession certificate prior to the date fixed in the contract and had applied for an encumbrance certificate on 04.06.1997 and obtained the same on 09.06.1997 and had thus complied with their part of the agreement and were ready and willing to perform their part of the contract. Even going by what is stated, it is evident that the encumbrance certificate was applied for one day prior to the date fixed in the contract and was obtained only after the time stipulated in Ext.A1. Another aspect that has been considered is the fact that the defendants had sent a notice on 02.06.1997. The trial court also found fault with the plaintiff for demanding the legal heirship certificate.
5. It is stated in the judgment that no notice was issued by the plaintiff to the defendants stating that he is ready to perform 2024:KER:82903 AS NO. 361 OF 2002 11 his part of the contract. This finding is apparently wrong since in Exts.B1, A3, and A5, the plaintiff has specifically stated that he is ready and willing to perform his part of the contract. Ext.B1 is a notice issued prior to the expiry of the date fixed in Ext.A1. Except for reiterating the contentions of the parties, there is no actual consideration of the question whether the plaintiff was ready and willing to perform his part of the contract, and what is relied on to find against the plaintiff are facts that are not borne out by the records. The court has also found that the suit was filed in 1997 and even after 4 years, the plaintiff was not ready and willing to perform his part of the contract. There is absolutely no basis for such a finding since the oral evidence is otherwise. Hence, I find that, on facts, the finding of the trial court regarding the readiness and willingness of the plaintiff is wrong.
6. The Counsel also relied on the judgment reported in Ganesh Prasad v. Saraswati Devi and Others AIR 1982 Allahabad 47), Daivasigamani P. v. S.Sambandan (2022) SCC Online SC 1391, Aloka Bose v. Parmatma Devi 2009 (2) SCC 582, and Nathulal v. Phoolchand 1969 (3) SCC 120, in support of his contentions.
2024:KER:82903 AS NO. 361 OF 2002 12
7. The counsel for the appellant relied on the judgment of a Division Bench of this Court in Asha Joseph v. Babu C George and Others 2022 (3) KHC 48. This court held therein that, the absence of details in the plaint regarding the funds in the possession of the plaintiff and the manner in which the plaintiff intended to raise the funds are not fatal and are matters of evidence. The court found that money need be produced only when directed by the court, and all that was required was to establish that the plaintiff had the capacity to raise the necessary funds. In the said case, the Division Bench held that specific performance being an equitable relief, the balance of equities has also to be struck taking into account all the relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. The court held that before decreeing specific performance it is obligatory for courts to consider any unfair advantage to the plaintiff over the defendant, the extent of hardship that may be caused to the defendant, whether the enforcement would be inequitable, and to take into consideration the totality of circumstances of each case . The court also found that it is not necessary that in all cases where there has been an 2024:KER:82903 AS NO. 361 OF 2002 13 escalation of prices, the court should either refuse to pass a decree for specific performance of a contract or direct the plaintiff to pay a higher sum. In the case before the Division Bench, the defendant had not pleaded any hardship or adduced any evidence to show that it would be inequitable to order specific performance of the agreement. However, the court found that settled law is that a court dealing with the suit for specific performance of an agreement for sale can impose, having regard to the delay in the judicial process and the consequential escalation of the price of the property, any reasonable condition including payment of an additional amount by one party to the other while granting or refusing a decree for specific performance. On the facts of the case, noticing that 16 years had elapsed since the execution of the agreement, the court directed the defendants to execute a sale deed with respect to such extent of property that could have been purchased for an amount of ₹10,00,000/- at the time of Ext.A2 agreement and instead of the total extent of 12 and odd Acres involved in the said case, a decree was granted for about 2.23 Acres. The counsel for the appellant submitted that if the same yardstick is followed in this case, the plaintiff will be entitled to a 2024:KER:82903 AS NO. 361 OF 2002 14 decree for around 30 Cents of property instead of the total of 72 Cents.
8. Adv. Sri V.R.K.Kaimal appearing for respondents 1, 2, 4 & 5 submitted that going by Section 16(c) of the Specific Relief Act there is a requirement to aver and prove readiness and willingness and the readiness and willingness should be there till the end of the suit. It is submitted that all the necessary documents have been provided by the defendants and it was the plaintiff who was delaying the matter since the plaintiff did not have the required funds. The counsel placed reliance on the judgments reported in Janardan Das v. Durga Prasad Agarwalla [2024 KHC Online 6562], Azhar Sultana v. B.Rajamani and Others [2009 (17) SCC 27], and Saradamani Kandappan and Another v. S.Rajalakshmi and Others [2011 (12) SCC 18] in support of the contention that the plaintiff was not ready and willing to execute the sale deed. It is submitted that time was the essence of the contract, and hence there was no obligation on the part of the defendants to execute the sale deed after 05.06.1997, particularly since the plaintiff did not take any steps for execution of the contract.
2024:KER:82903 AS NO. 361 OF 2002 15
9. I have considered the evidence on record and the arguments advanced by the counsel on either side. In Nathulal (supra), the Hon'ble Supreme Court held that the purchaser need not produce money or vouch a concluded scheme for financing the transaction. In Ganesh Prasad (supra), the Allahabad High Court held that a plaintiff in order to succeed in a suit for specific performance must aver and prove that he has performed or has throughout been prepared to do his part under contract and that the said preparedness may not be mere verbal show of readiness, but should be backed by means to perform his part of the contract when called upon to do so. In Aloka Bose (supra), the Hon'ble Supreme Court held that readiness and willingness was proved by the vendee by paying earnest money and sending a notice conveying her willingness and readiness to pay the balance sale consideration which had been acknowledged by the defendant. In Daivasigamani (supra), the Hon'ble Supreme Court held that, the vendee, by issuing notices within a period of six months of the agreement, calling upon the vendor to perform his part of the contract, has shown his readiness and willingness to perform his part of the contract and that was due compliance of Section 16(c) 2024:KER:82903 AS NO. 361 OF 2002 16 of the Specific Relief Act. The Court relying on the judgment in Syed Dastagir v. T.R. Gopalakrishna Setty [(1999) 6 SCC 337], held that the compliance of readiness and willingness has to be in spirit and substance and not in letter and form. The principles laid down in the above said judgments would support my finding that the trial court has gone wrong on its decision on the readiness and willingness of the plaintiff. In Azhar Sultana (supra), the Hon'ble Supreme Court held that readiness and willingness of the plaintiff is a condition precedent for obtaining a relief of grant of specific performance of contract. The said judgment is not of much relevance since I have already found that the plaintiff was ready and willing to perform his part of the contract. In Saradamani (supra), the Hon'ble Supreme Court, while considering the principle that time is not the essence of a contract for the sale of immovable properties, opined that the principle needs a revisit in view of the changed circumstances arising from inflation and steep increase in price. The said judgment does not say that specific performance cannot be decreed in cases where the plaintiff has proved his readiness and willingness. The opinion expressed by the Hon'ble Supreme Court 2024:KER:82903 AS NO. 361 OF 2002 17 would, however, be a factor to be considered while exercising discretion in granting the decree for specific performance. In Janardhan Das (supra), the Hon'ble Supreme Court reiterated that the plaintiff should aver and prove his readiness and willingness to perform the obligation to pay money in terms of the contract, that the readiness and willingness of the plaintiff has to be ascertained based on his conduct prior to and subsequent to the filing of the suit as well as from the terms of the agreement and surrounding circumstances and that any laxity or indifference or failure to perform his part of the contract can be a ground to deny the relief of specific performance. Regarding the discretionary nature of granting specific performance, the Hon'ble Supreme Court held that the discretion must be exercised judiciously and based on sound principles, ensuring that the grant of specific performance is just and equitable in the circumstances of the case.
10. In the case on hand, I have already found that the plaintiff was ready and willing to perform his side of the contract. He had already parted with Rs.6,00,000/- which is about 40% of the total consideration payable. Even before the period fixed for completing the sale was over, the plaintiff had sent notice to the 2024:KER:82903 AS NO. 361 OF 2002 18 defendants stating that he was ready and willing to perform his side of the contract. The contention of the defendants that the plaintiff was attempting to buy time by demanding certain documents which had not been stated to be a requirement in Ext.A1 agreement is not correct. The documents that were sought for by the plaintiff are only documents which would be required for the preparation of the draft sale deed and are not documents which are totally unrelated to the contract. As such, no fault can be found with the plaintiff for having requested such documents. Admittedly, the agreement between the parties required the defendants to acquire property for a 7 Meter wide road and to hand over all the documents required for the sale 10 days prior to the date fixed for execution. The defendants have no case that the documents were handed over. The evidence on the above aspect is vague and contradictory. At one place, it is stated that the documents were shown to the plaintiff; at another place, it is stated that a copy was handed over to the plaintiff; and at yet another place, it is stated that the documents were not sent to the plaintiff. The three versions stated above cannot go together. As held by the Hon'ble Supreme Court in Prakash Chandra vs Angadlal 1979 (4) SCC 2024:KER:82903 AS NO. 361 OF 2002 19 393, the ordinary rule is that specific performance of the contract is granted and it is denied only on equitable considerations and where the circumstances show that award of damages is adequate relief. The agreement was of the year 1996 and 28 years have gone by. The extent involved is 72 cents of land and it will not be equitable at this stage to grant a decree for the entire extent, in view of the changed circumstances. So also the decree now granted by the trial court for return of Rs.6,00,000/- without any interest is also not equitable. The facts of this case are in a way similar to the facts in Asha Joseph (supra) and I am of the opinion that a relief similar to the one granted in the said judgment would be equitable to both sides. In the said case, the Division Bench directed execution of sale deed with respect to such extent of property that could have been purchased for the amount which had been paid as advance at the time of the agreement. In the case on hand, an amount of Rs.6,00,000/- had been paid in 1996 itself. The rate fixed in the contract was Rs.20,500/- per cent. For the amount of Rs.6,00,000/- paid as advance, the plaintiff could have bought an extent of 29.27 cents at the rate of Rs.20,500/- per cent.
2024:KER:82903 AS NO. 361 OF 2002 20 In the result, the appeal is allowed. The judgment and decree of the court below are set aside. The suit is partly decreed, and the plaintiff is granted a decree for specific performance relating to 29.27 cents out of the total extent of 72 cents which was agreed upon as per Ext.A1. If the defendants fail to execute the sale deed in favour of the plaintiff within a period of three months from the date of receipt of a copy of this judgment, the plaintiff is entitled to get the decree executed through court. The plaintiff will also be entitled to realise the cost of the suit and the appeal.
Sd/-
T.R. RAVI JUDGE Pn