K.S.Dilip Kumar vs K.V.Sathyan

Sathish Ninan, J.

The suit for specific performance of an agreement for sale and for return of the excess money paid, was decreed by the trial court for return of the advance sale consideration. The plaintiff is in appeal.

Ext.A1 agreement dated 11.10.2006 was entered into between the plaintiff, the 1st defendant and his mother. As per Ext.A1, 18 cents of property belonging to the 1st defendant, and 6.5 cents of property belonging to his mother were agreed to be conveyed to the plaintiff. The consideration payable was Rs.10,000/- per cent. On the date of agreement, an amount of Rs.65,000/-was paid towards advance sale consideration. The period fixed for performance was, on or before 11.01.2007. Thereafter, on 23.06.2008, the plaintiff paid a further amount of Rs.2,50,000/- to enable the defendant to clear the encumbrance over the property. The second defendant is the power of attorney holder and wife of the first defendant. Alleging failure on the part of the defendants to perform the agreement, the suit was filed. The plaintiff seeks for specific performance of Ext.A1 agreement and also return of the excess amount of Rs.70,000/- paid by him.

Though the defendants had filed a written statement, thereafter they remained ex parte.

The trial court granted a decree in favour of the plaintiff for return of the advance sale consideration.

I have heard Shri.C. Dilip, the learned counsel for the appellant and Shri.K.G. Balasubramanian, the learned counsel for the respondents.

The points that arise for determination are;

i) Has there been a proper exercise of discretion under Section 20 of the Specific Relief Act by the trial court?

ii) Did the trial court fail to exercise its jurisdiction by not considering the prayer for return of the alleged excess amount paid?

A reading of the impugned judgment reveals that, the court has not considered the circumstances if any, to exercise its discretion not to grant a decree for specific performance. But for the stating, “considering the facts and circumstances”, no reason is stated. On that sole ground, the decree and judgment of the trial court is liable to be interfered with.

It is also seen that, though the plaint contained a claim for refund of the alleged excess sale consideration, the said relief was not even adverted to.

The learned counsel for the 1st respondent would contend that, though the mother had performed her part of the agreement, the suit is on the entire agreement. The learned counsel further urged that the suit is barred by limitation. The defendants who had filed a written statement did not care to contest the suit.

As noticed, the decree and judgment of the trial court are liable to be interfered with and the suit is to be remanded. I deem it appropriate to grant an opportunity to both the plaintiff and the defendants to adduce evidence. All the contentions of the parties are left open.

Resultantly, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal de novo. The parties shall be afforded an opportunity to adduce evidence. Parties to appear before the trial court on 11.04.2024. The Court fee paid on the memorandum of appeal shall be refunded to the appellant.