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2017 Supreme(Ker) 1504

IN THE HIGH COURT OF KERALA
P.N. RAVINDRAN, DEVAN RAMACHANDRAN, JJ.
Sreekumar - Appellant
v.
Ramadasan - Respondent
R.F.A. No.530 of 2007
Decided On : 19-06-2017

Advocates:
Advocate Appeared:
For the Appellant : P.V. Jyothi Prasad
For the Respondent: K. Ramachandran

Headnote:

Specific Relief Act 1963 - Section 20 - Suit for specific performance of Agreement - Terms and Conditions of Contract - Enforceability of performance - When can be seek - Held, Before enforceability of Contract and its performance great degree of certainty is required and it requires a clear, definite and precise understanding of all the terms of the contract and they must be clearly ascertained

JUDGMENT :

DEVAN RAMACHANDRAN, J.

1. It is now well accepted as a fundamental premise that a contract for sale can be ordered to be specifically performed only if its terms provide substantial degree of certainty and only if they are capable of clear, precise and definite understanding and comprehension. The Specific Relief Act, 1963 (for short, 'the Act'), under Section 20 thereof, expounds the jurisdiction of a court to decree specific performance as being discretionary and provides that a court is not bound to grant such relief merely because it is lawful to do so. The court is bound to act in a sound and reasonable manner, guided by judicial principles and on considerations of fairness and reasonableness.

2. The facts that are involved in this case present an interesting situation. Even though the litigating parties have entered into a contract for sale of property, the agreement between them shows no consensus as to the actual extent of land sought to be dealt with and sold under it. The court below, therefore, declined to grant a decree of specific performance holding that in the absence of clarity and definitude in the contract as to the extent of land sought to be conveyed, it would not be justified in granting a decree for specific performance under Section 20 of the Act.

3. The appellant has challenged the judgment and decree of the court below in this appeal and we have been called upon to decide whether the court below was right in doing so.

4. This appeal arises from the judgment and decree of the Sub Court, Tirur in O.S.No.117 of 2005. The plaintiff in the suit has filed this appeal. The judgment impugned herein was delivered by the court below on 26.09.2007 in the suit, which was instituted by the appellant herein as plaintiff against the respondents, seeking a decree for specific performance of an agreement of sale entered into between them on 17.01.2005. This agreement has been placed on record and marked as Ext.A1, under which, an extent of 64 cents of land was agreed to be sold by the respondents and to be purchased by the appellant for an amount of Rs.6,750/- per cent.

5. It is virtually conceded to by the parties that an amount of Rs.20,000/- was paid as advance at the time when the agreement was entered into, the receipt of which has been acknowledged by the respondents in the agreement itself. As per the terms of the agreement, the parties were to enter into a sale deed within a period of 3½ months from the date of the agreement and the plaintiff alleges that, on 02.05.2005, it was mutually agreed to extend the period until 02.06.2005 and that he had, on that day, paid an additional amount of Rs.70,000/-towards advance.

6. The appellant alleged in the plaint that the property was not measured at the time when the agreement was entered into and that it was subjected to measurement only on 01.06.2005 and that on such measurement, the extent of land was seen to be 57.389 cents and not 64 cents, as was agreed between the parties. He asserts that since the extent was lower, he was not obligated to pay the entire sale consideration, as was agreed between them, and he contends that since Ext.A1 agreement fixed the price of each cent of land at Rs.6,750/-, he was only obligated to pay the amount for the actual extent that was seen after such measurement. According to him, the defendants were, however, unwilling to execute the sale deed and that he was constrained to file the suit seeking a decree for specific performance.

7. The defendants/respondents filed a written statement refuting all the allegations of the plaintiff/appellant. According to them, there was no confusion regarding the extent of land. They say that even though 64 cents were shown in Ext.A1 agreement, the appellant was aware, through a measurement that was done in March, 2005, that the extent was only 627/8 cents. The respondents vehemently assert that there was no measurement conducted on 01.06.2005, though it is conceded that there was an attempt to


















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