Back
2019 Supreme(Ker) 197
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. HARILAL, ANNIE JOHN, JJ.
K.M. Ahammed Koya, - Appellant
Vs.
Moorkoth Sujitha - Respondent
RFA. No. 295 of 2015
Decided On : 08-02-2019
For the Appellant : Sri. K.M. Firoz, Smt. M. Shajna, Sri. S. Kannan
For the Respondent: Sri. Harish R. Menon, Sri. K.T. Shyamkumar
IMPORTANT POINTS:
" The efflux of time and escalation of price of the property by itself cannot be a valid ground to deny the relief of specific performance. But the Court in its discretion may impose reasonable conditions including payment of additional amount to the vendor.
Headnote:The Specific Relief Act- Section 20(1) - Denial of Execution-Even if the execution of the agreement has been proved, it is the discretion of the court, in view of the facts and circumstances of each and every case to grant or not to grant the relief of specific performance of contract- The Court has power to enhance the amount payable as sale consideration and re-fix the amount payable for such transaction..
Statement of facts:
The appellant herein is the plaintiff and respondent herein is the defendant in OS.No.328/2013 on the files of the Additional Sub Court-II, Kozhikode. The suit is one for specific performance of contract with alternative prayer for realisation of advance amount. The appellant on 09.01.2010 entered into Ext.A1 agreement with the respondent by which the respondent agreed to sell and the appellant agreed to purchase the plaint schedule property for a total sale consideration of Rs.97 lakhs. On the date of execution of Ext.A1, Rs.15 lakhs were paid to the respondent as advance. The respondent before execution had agreed to evict the tenant, who had occupied the plaint schedule property. Since the tenant was not evicted as promised, respondent sought for further time to fulfil his part of contract. Though the appellant was willing and ready to perform his part of contract, the respondent was not ready to accept the same. In the said circumstances, the above suit was filed- The trial court has found that Exts.A1 and A2 agreements have been executed by the respondent as claimed by the appellant. So having found that the denial of execution is false, the court below ought to have granted the discretionary relief of specific performance of contract in favour of the appellant. Hence, the appeal.
Finding of the court:
that impugned order under appeal be set aside but with a condition imposed upon the appellant (plaintiff) to pay a sum of Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs only) in addition to the amount already paid by the appellant to the respondent. On deposit in trial court of aforesaid amount by the appellant, for payment to the respondent, within three months from today, the respondent shall execute and register the sale deed in favour of the plaintiff in respect of the suit property. In the event, the aforesaid condition of deposit of Rs.1,50,00,000/- (Rupees One Crore Fifty lakhs only) is fulfilled within the time stipulated herein above but the defendant fails to comply with the direction, then the appellant shall be entitled to execute the decree in accordance with the procedure provided in law.
Result : RFA allowed
Annie John, J.
The appellant herein is the plaintiff and respondent herein is the defendant in OS.No.328/2013 on the files of the Additional Sub Court-II, Kozhikode. The suit is one for specific performance of contract with alternative prayer for realisation of advance amount. The appellant on 09.01.2010 entered into Ext.A1 agreement with the respondent by which the respondent agreed to sell and the appellant agreed to purchase the plaint schedule property for a total sale consideration of Rs.97 lakhs. On the date of execution of Ext.A1, Rs.15 lakhs were paid to the respondent as advance. The respondent before execution had agreed to evict the tenant, who had occupied the plaint schedule property. Since the tenant was not evicted as promised, respondent sought for further time to fulfil his part of contract. Though the appellant was willing and ready to perform his part of contract, the respondent was not ready to accept the same. In the said circumstances, the above suit was filed.
2. The respondent entered appearance filed written statement and resisted the prayers therein. Execution of Ext.A1 and A2 and receipt of Rs.15 lakhs towards advance sale consideration were denied by the respondent. The learned Sub Judge on erroneous appreciation of evidence, facts and circumstances of the case in hand, by impugned judgment and decree speciously dismissed the suit finding that the appellant was not entitled for a decree for specific performance of contract. The lower court has decreed the suit for realisation of an amount of Rs.15 lakhs and it was found that the appellant is entitled to realise the same with 8% interest from the respondent from 09.01.2010 till realisation of the entire amount. The respondent had denied execution of Exts.A1 and A2 agreements.
3. The trial court has found that Exts.A1 and A2 agreements have been executed by the respondent as claimed by the appellant. So having found that the denial of execution is false, the court below ought to have granted the discretionary relief of specific performance of contract in favour of the appellant. Hence, the appeal.
4. On the side of appellant PW1 and PW2 were examined and Exts.A1 to A3 were marked. On the side of respondent, DW1 was examined and Ext.B1 was marked. The ground as urged for interference of this Court is that the court below passed the impugned judgment without properly appreciating the facts and circumstances of the case. The respondent had denied execution of Exts.A1 and A2 agreements. But the trial court ultimately found that Exts.A1 and A2 agreements are genuine one and executed by the respondent. The court below ought to have appreciated the fact that the tenant, who was occupying premises were only evicted by the respondent recently and that for the said reasons, Ext.A2 agreement was executed at the instance of the respondent. The court below further erred in finding fault with the appellant in so far as not issuing lawyer notice. As such, issuance of a lawyer notice is not a pre-condition for instituting a suit for specific performance of a contract.
5. On these grounds, the appellant prays for setting aside the decree and judgment dated 28.11.2014 in OS.No.328/2013 on the files of Additional Sub Judge-II, Kozhikode to the extent disputed herein by allowing this appeal and decree the suit in full, as prayed for with cost. In fact, the suit was filed for specific performance of the contract on the basis of Exts.A1 and A2 agreement entered between the appellant and respondent mutually and with respect to the plaint schedule property. It was argued that at the time of execution of Ext.A1 agreement, the appellant had paid Rs.15 lakhs to the respondent towards the total sale consideration mutually agreed for Rs.97 lakhs. The plaint schedule property described as only one cent of property (0.40 ares) at Kozhikode consists of one shop room with vacant land on the back. At the time of execution of Exts.A1 agreement, the appellant had paid Rs.15,00,000/
