K.P.Sethunath (Died) vs K.Lalitha

A. Badharudeen, J

This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the decree and judgment dated 28.10.2010 in O.S. No.106/2007 on the files of the Court of the Subordinate Judge, Cherthala. The appellant herein is the plaintiff and the respondents herein are defendants 2 to 5.

Heard the learned counsel for appellants 2 to 5, who are the legal heirs of the deceased appellant and the learned counsel appearing for the respondents. Perused the verdict under challenge and the records of the trial court.

Parties in this appeal shall be referred with reference to their status before the trial court.

The suit emanated at the instance of the plaintiff, when there was failure on the part of the defendants to execute sale deed in favour of the plaintiff, in relation to the plaint schedule property belonged to the defendants, in terms of an agreement of sale executed between the plaintiff and defendants on 05.03.2007. The case of the plaintiff is that, the defendants agreed to sell 20 cents of property for a total consideration of Rs.8,25,000/- i.e. Rs.4,00,000/- for 20 cents at the rate of Rs.20,000/- per cent and Rs.4,25,000/- for the building, within a period of six months and on the date of execution of agreement, Rs.1 Lakh was paid by the plaintiff as advance. Even though, the plaintiff has been ready and willing to purchase the property within a period of six months, the defendants failed to execute the sale deed, even after issuance of legal notice demanding the same on 17.09.2007. Accordingly, the plaintiff sought the relief of execution of the agreement or in the alternative, to get back the advance amount.

Defendants filed written statement contending that the 1st defendant was a heart patient and the plaint schedule property was offered for sale to meet the delivery expenses of the 4th defendant and to clear the loan arrears in relation to the property in Alappuzha District Co-operative Bank, Cherthala Branch. But, the original plaintiff was not ready and willing to execute the sale deed on paying the balance consideration. Accordingly, the reliefs sought in the plaint were opposed.

The trial court, on appreciation of rival pleadings, raised necessary issues and tried the matter. PWs 1 to 3 examined and Exts.A1 to A3 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B6 marked on the side of the defendants.

Finally, the trial court disallowed the prayer for specific performance and allowed the alternative relief to repay Rs.1 Lakh with future interest at the rate of 12% per annum from 05.03.2007 by the sale of the plaint schedule property and from the defendants and their assets.

While assailing the trial court verdict refusing the discretionary relief of performance of contract, it is pointed out by the learned counsel for the plaintiff that the plaintiff has been ready and willing to perform his part of contract marked as Ext.A1 and execution of Ext.A1 is admitted by the defendants. According to the learned counsel for the plaintiff, apart from the plaintiff, who got examined as PW1, PWs 2 and 3 were also examined to prove the execution of Ext.A1 agreement. Further, the readiness and willingness of the plaintiff is to be discerned from notice issued by him on 17.09.2007, which was accepted by the defendants. According to the learned counsel for the plaintiff, even though grant of specific performance is a discretionary relief, in this case, the trial court went wrong in not granting the same, where the evidence adduced by the plaintiff categorically established the execution of Ext.A1 agreement and readiness and willingness of the plaintiff to perform his part of contract. It is pointed out further that, going by the evidence of DW1, who is the 5th defendant, he admitted that the property was mortgaged with Alappuzha District Co-operative Bank and as on the date of his examination also a sizable amount is due towards the bank. Therefore, the evidence available is suggestive of the fact that even though the plaintiff has been ready and willing to execute the sale deed, the same could not be executed because of the reluctance on the part of the defendants. Therefore, the trial court went wrong in not granting the relief of specific performance itself.

While opposing this contention, the learned counsel for the defendants would submit that, in this matter, the property was offered to be sold to meet the delivery expenses of the 4th defendant and to clear the loan liability and also to purchase a suitable residence for the defendants. Therefore, the intention behind execution of Ext.A1 is its timely execution, so as to get money for the requirements as stated in the written statement. Since the plaintiff failed to perform his part of the contract as agreed, urgent requirement of the defendants could not be accomplished and the loan amount accumulated to higher side. Having considered the factual aspects involved in this particular case, the trial court is justified in granting the alternative relief alone, while disallowing the relief of specific performance in favour of the plaintiff.

Having considered the rival submissions, the points arise for consideration are:

Whether the trial court went wrong in granting the alternative relief and disallowing the discretionary relief of specific performance of Ext.A1 agreement?

Whether the decree and judgment of the trial court would require interference?

Reliefs and costs.

In this matter, Ext.A1 is the agreement entered into between the plaintiff and defendants, whereby it was agreed between them that the plaint schedule property would be sold by the defendants to the plaintiff for a total sale consideration of Rs.8,25,000/- and out of which Rs.1 Lakh was paid as advance by the plaintiff on the date of execution of Ext.A1 on 05.03.2007. The execution of Ext.A1 is admitted by the defendants also. However, the defendants’ case is that, the property was agreed to be sold to meet the urgent requirements including delivery expenses of the 4th defendant and to clear the loan liability and also to purchase a suitable residence for the defendants. But, the plaintiff failed to perform his part of the agreement in time, so as to meet the requirements of the defendants, though he sent a notice as Ext.A1 on 17.09.2007, for which Ext.B4 reply was given.

In this matter, as pointed out by the learned counsel for the plaintiff, the execution of Ext.A1 agreement is admitted by the defendants. Ext.A2 would show that the plaintiff was ready to execute the sale deed in terms of the agreement. Apart from the plaintiff, who got examined as PW1, PWs 2 and 3 were also given evidence in support of the case put up by the plaintiff.

The trial court found that the plaintiff intentionally omitted to produce any evidence to show that he was having sufficient funds to purchase the property as per Ext.A1. According to the defendants, the plaintiff is only a real estate broker and he could not find prospective purchasers in order to execute the sale deed. Therefore, the execution of the sale deed was not possible. It is true that, no convincing evidence forthcoming to see sufficient funds at the hands of the plaintiff to pay the balance consideration. It is relevant to note that, as per the contentions in the written statement and as submitted by DW1, at the time of execution of Ext.A1 the property was encumbered with Alappuzha District Co-operative Bank and the liability not so far discharged, is the evidence given by DW1. Therefore, even otherwise, the specific performance of Ext.A1 is not possible. Here, the total consideration agreed between the parties was Rs.8,25,000/- and out of which a small amount of Rs.1 Lakh was paid by the plaintiff as advance. It is true that, in a case of specific performance of contract or sale, the Court has the discretion to grant the relief of specific relief itself prior to the amendment of Section 20 of the Specific Relief Act w.e.f. 1.8.2018 and grant of specific relief by the court is absolutely a discretionary relief. It is the settled law that the said discretion is to be exercised on sound and reasonable grounds guided by judicial principles capable of correction by the courts of appeal.

In the instant case, the trial court found that the plaintiff failed to prove his capacity to pay the balance consideration. Otherwise also, the sale deed could not be executed because of the liability pending with the property. In such a situation, the trial court was not inclined to exercise its discretion to grant the relief of specific performance and granted the alternative relief to refund the advance amount paid with interest. In such a case, the trial court exercised its discretion properly and the same is only to be justified in the circumstances already discussed. Therefore, there is no reason to interfere with the verdict of the trial court. Holding so, the trial court verdict does not require any interference.

In the result, the appeal stands dismissed and the verdict under challenge stands confirmed.

Considering the nature of this case, there shall be no order of cost. Point Nos.1 to 3 answered thus.

All interlocutory applications pending in this regular first appeal stand dismissed.