James S/o George vs Reji S/o Poulose

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P.B.Suresh Kumar, J.",,,,

The defeated plaintiff in a suit for specific performance of an agreement for sale is the appellant in the appeal.,,,,

The plaint schedule property comprises of five items belonged to one Poulose and defendants 1 to 4. Among defendants 1 to 4, defendants 1 and 2",,,,

are the sons of Poulose and defendants 3 and 4 are the daughters-in-law of Poulose. On 13.11.2006, Poulose and defendants 1 to 4 agreed to sell, and",,,,

the plaintiff agreed to purchase the plaint schedule property for a sum of Rs.76,84,937/- in terms of an agreement. On that day, the plaintiff paid to",,,,

Poulose and defendants 1 to 4 a sum of Rs.50,000/- by way of advance sale consideration. Later on 30.11.2006, the plaintiff paid to Poulose and",,,,

defendants 1 to 4 a sum of Rs.9,50,000/- also by way of advance sale consideration. As per the terms of the agreement, the plaintiff ought to have",,,,

purchased the plaint schedule property on or before 14.05.2007. On 12.05.2007, Poulose and defendants 1 to 4 received from the plaintiff a sum of",,,,

Rs.9 lakhs also towards advance sale consideration. It is alleged by the plaintiff that on 14.05.2007, when he approached the defendants with the",,,,

balance sale consideration, the defendants agreed to execute the sale deed on 15.05.2007 and requested the plaintiff to be present on that day at the",,,,

Sub-Registry concerned. It is also alleged by the plaintiff that though he was present at Sulthan Bathery Sub-Registry on 15.05.2007, Poulose and",,,,

defendants 1 to 4 did not turn up. Although the plaintiff caused to issue lawyer notices to Poulose and defendants 1 to 4 immediately thereafter on,,,,

19.05.2007 calling upon them to execute the sale deed, they did not comply with the demand therein. While so, on 05.06.2007, Poulose died. The suit,",,,,

in the circumstances, was instituted against defendants 1 to 4 and defendants 5 to 8 who are the legal representatives of Poulose other than",,,,

defendants 1 and 2, for specific performance of the agreement for sale dated 13.11.2006.",,,,

The defendants filed a joint written statement admitting the execution of the agreement for sale dated 13.11.2006. They, however, contended that",,,,

the plaintiff could not arrange the balance sale consideration within the time stipulated in the agreement; that he, therefore, approached Poulose and",,,,

defendants 1 to 4 on 12.05.2007 with a request for further time for payment of the balance sale consideration, after paying Rs.9 lakhs more towards",,,,

advance sale consideration and since Poulose and defendants 1 to 4 were not prepared to enlarge the time limit prescribed in the agreement for,,,,

payment of the balance sale consideration, the parties had mutually agreed to treat the agreement as cancelled. According to the defendants, the",,,,

plaintiff is therefore, not entitled to the relief sought for in the suit.",,,,

The brother and power of attorney holder of the plaintiff gave evidence on behalf of the plaintiff as PW1 and proved Exts.A1 to A12 documents.,,,,

The first defendant gave evidence as DW1. Four other witnesses were also examined on the side of the defendants as DW2 to DW5. Exts. B1 to,,,,

B12 are the documents proved by the defendants through their witnesses.,,,,

Among the documents, Ext.A1 is the agreement for sale dated 13.11.2006, Ext.A2 is the power of attorney executed by the plaintiff in favour of",,,,

PW1, Ext.A3 is the copy of the lawyer notice, Ext.A5 series are the postal acknowledgement cards evidencing receipt of Ext.A3 lawyer notice by the",,,,

defendants, Exts.A7 and A8 are certified copies of two documents registered at Sulthan Bathery Sub-Registry on 15.05.2007 in which the plaintiff",,,,

stood as witness, Ext.A9 is an agreement executed by the plaintiff with one Jose on 20.05.2005 and Exts.A10 series, A11 and A12 are a few",,,,

purchase bills in favour of the plaintiff.,,,,

The court below, on an elaborate consideration of the facts and circumstances of the case, found that the power of attorney holder of the plaintiff is",,,,

not competent to give evidence to prove the readiness and willingness of the plaintiff to perform his part of obligations under the agreement and that,,,,

even otherwise, the plaintiff has not established his readiness and willingness to perform his part of the obligations under the agreement, inasmuch as",,,,

he was unable to show that he was having the balance consideration payable to the defendants in terms of the agreement with him as on 14.05.2007,",,,,

and declined the decree for specific performance sought in the suit on that basis. The court below, however, passed a decree permitting the plaintiff to",,,,

realise the advance sale consideration of Rs.19 lakhs with interest, charged on the plaint schedule property. The plaintiff is aggrieved by the said",,,,

decision of the court below.,,,,

Heard the learned Senior Counsel for the plaintiff as also the learned counsel for the defendants.,,,,

The learned Senior Counsel for the plaintiff submitted that the finding rendered by the court below that the plaintiff was not ready and willing to,,,,

perform his part of the obligations under Ext.A1 agreement is unsustainable. The learned counsel elaborated the said submission pointing out that if the,,,,

plaintiff was not ready and willing to get the sale deed within the time stipulated, he would not have paid a further sum of Rs.9 lakhs also to the",,,,

defendants on 12.05.2007, which was just two days prior to the last day fixed in the agreement for execution of the sale deed. It was also submitted",,,,

by the learned counsel that the case of the defendants that on 12.05.2007, after paying a sum of Rs.9 lakhs to the defendants, the plaintiff sought",,,,

further time for payment of the balance sale consideration and that since the defendants were not prepared to grant further time to the plaintiff for the,,,,

said purpose, the parties have agreed to rescind the agreement is highly improbable, inasmuch as no one would part with such a huge sum of money, if",,,,

the agreement is one to be rescinded on that day on mutual agreement. It was also submitted by the learned counsel that Exts.A7 and A8 documents,,,,

would show that there was an understanding between the parties that the sale deed would be executed on 15.05.2007, or otherwise, there was no",,,,

need at all for the plaintiff to be present at the Sub-Registry on 15.05.2007. Relying on Ext.A9 agreement and Exts.A10 to A12 purchase bills, the",,,,

learned counsel submitted that the plaintiff has established that he had sufficient funds to get the sale deed of the property at the relevant time. The,,,,

learned counsel has also highlighted for the said purpose the conduct of the plaintiff in causing to issue lawyer notices on 19.05.2007 to the defendants,,,,

demanding execution of the sale deed. According to the learned counsel, if the plaintiff was not ready and willing to get the sale deed of the property",,,,

within the time stipulated, he would not have caused the lawyer notices to be issued to the defendants on 19.05.2007. The fact that there was no reply",,,,

to the lawyer notice was also highlighted by the learned counsel to contend that the plaintiff was ready and willing to perform his part of the obligations,,,,

under the agreement for sale. Placing reliance on the decision of the Apex Court in Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512, the",,,,

learned counsel argued that the power of attorney holder of the plaintiff being the brother of the plaintiff himself and the person who has personal,,,,

knowledge about the transaction, it cannot be said that he is incompetent to give evidence to prove the readiness and willingness on the part of the",,,,

plaintiff. The learned counsel has also brought to our notice the recent amendments introduced to the Specific Relief Act and submitted, relying on the",,,,

judgment of the Apex Court in Civil Appeal No.5110 of 2021 that even though the amendments cannot be said to be retrospective, the amended",,,,

provisions in the Specific Relief Act shall be a guide for the court while exercising the discretionary jurisdiction to order specific performance.,,,,

Per contra, the learned counsel for the defendants argued that in a case of this nature, it was obligatory for the plaintiff to give evidence, and in the",,,,

absence of the evidence of the plaintiff, the court below cannot be found fault with for having declined the decree for specific performance sought by",,,,

him. It was also argued by the learned counsel that the materials on record do not indicate that the plaintiff was ready and willing to perform his part,,,,

of the obligations under the agreement. It was further argued by the learned counsel that insofar as the balance sale consideration payable by the,,,,

plaintiff to the defendants in terms of the agreement was huge, the plaintiff should have produced his bank account statements to prove that he had",,,,

sufficient funds with him at the relevant time to get the sale deed. According to the learned counsel, in the absence of any evidence as to the amount",,,,

available to the credit of the plaintiff in his bank accounts at the relevant time, the court below cannot be blamed for having found that the plaintiff was",,,,

not ready and willing to perform his part of the obligations under the agreement. It was also argued by the learned counsel that no credibility could be,,,,

attributed to Exts.A9 to A12 documents which were produced on the date of the evidence inasmuch as the defendants were deprived on account of,,,,

the said reason an opportunity to cross examine the power of attorney holder of the plaintiff effectively on those documents. Even otherwise,",,,,

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stated that he has only seen a few photocopies of some of the documents. He has also admitted in cross examination that the plaintiff has neither,,,,

purchased stamp papers for execution of the sale deed nor made any arrangement till 15.05.2007 for preparation and registration of the sale deed.,,,,

Even though he has vaguely explained in cross examination that it is since the defendants have agreed to make the said arrangements that they were,,,,

not arranged by the plaintiff, the said explanation was, however, not stated in the proof affidavit filed by the plaintiff. That apart, we do not think that",,,,

any seller would make arrangement for payment of stamp duty on behalf of the buyer as claimed by the power of attorney holder of the plaintiff,",,,,

especially when the stamp duty payable is a huge amount running to several lakhs. As rightly argued by the learned counsel for the defendants, no",,,,

credibility could be attributed to Exts.A9 to A12 documents which are self serving. In short, the case of the plaintiff that he was ready with the",,,,

balance sale consideration on 14.05.2007 cannot be accepted. We take this view also for the reason that as noted, the amount payable by the plaintiff",,,,

to Poulose and defendants 1 to 4 by way of balance sale consideration was a huge amount and availability of such huge amount is normally expected,,,,

to be proved by producing the bank accounts of the parties concerned. In the case on hand, it is admitted by the power of attorney holder of the",,,,

plaintiff in his evidence that at the relevant time, the plaintiff was not having the amount payable to the defendants towards balance sale consideration",,,,

in his bank account.,,,,

True, on 19.05.2007 itself, the plaintiff caused to issue lawyer notices to Poulose and defendants 1 to 4 demanding execution of the sale deed in",,,,

respect of the plaint schedule property after accepting the balance sale consideration and the defendants who have admittedly received the same did,,,,

not send any reply to the lawyer notices. According to us, in the light of the categoric finding rendered by us that the plaintiff was not having funds",,,,

sufficient for payment of the balance sale consideration in terms of the agreement for sale, no inference in favour of the plaintiff could be made from",,,,

the facts that the plaintiff has caused to issue lawyer notices to the defendants demanding execution of the sale deed in respect of the plaint schedule,,,,

property immediately after the expiry of the time limit prescribed for payment of the balance sale consideration and that there was no reply to the,,,,

same from the side of Poulose and defendants 1 to 4.,,,,

As noted, the version of the defendants in the written statement is that on 12.05.2007, the plaintiff paid them a sum of Rs.9 lakhs more by way of",,,,

advance sale consideration and requested for some more time to pay the balance sale consideration and since the said request of the plaintiff was not,,,,

acceptable, they have mutually agreed to rescind the agreement for sale. It is difficult to accept this case of the defendants also. As rightly pointed out",,,,

by the learned Senior Counsel for the plaintiff that if, as a matter of fact, the parties have decided to rescind the agreement for sale on 12.05.2007, the",,,,

plaintiff would not have paid a sum of Rs.9 lakhs more to Poulose and defendants 1 to 4 on that day towards advance sale consideration. But merely,,,,

for the reason that the defendants in a suit for specific performance for an agreement for sale were unable to prove their case in the written,,,,

statement, the plaintiff cannot claim a decree for specific performance.",,,,

In the light of the above discussion, we do not find any merit in the appeal and the same is, accordingly, dismissed.",,,,