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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mary Joseph, J.
Oommen, S/o.Mathew And Ors. – Petitioners
Versus
A.K.Sarojini, W/O. K.K.Rajappan – Respondent
RFA NO. 623 of 2012
Decided On : 31-03-2022
Specific Relief Act, 1963 - Section 16, 16(b) - Transfer of Property Act, 1882 - Section 54 – Appeal - Sale - Personal bars to relief - Whether plaintiff is entitled to get discretionary relief of specific performance - Court has considered essentialities to be considered to establish readiness and willingness of plaintiff approaching a court for a decree for specific performance (Para 39).
Findings of Court :
Court below ought not to have relied on Exts.A5 to A7 & A7(a) to take a view affirmatively on readiness and willingness of plaintiff to perform her part of contract - Therefore, evidence of plaintiff is insufficient to establish that she had been and still is, having necessary funds to pay balance sale consideration as stipulated under Ext.A1 or source wherefrom she could avail it - Though she has pleaded that there was default from defendant and therefore payment of balance sale consideration was delayed, she failed even to establish any default of defendant in performing his part, as per Ext.A1 - Admittedly of PW1, measurement of property was already done by defendant and therefore, part next to be performed is by plaintiff, to pay balance sale consideration to defendant - It was neither pleaded by plaintiff that she had fund to pay it and continues to have it even at time of institution of Suit, nor proved those by cogent and reliable evidence.
Result : Appeal allowed.
Based on the provided legal document, the key legal principles and findings are as follows:
Essentialities for Establishing Readiness and Willingness: The court emphasized that a plaintiff seeking specific performance must demonstrate continuous readiness and willingness to perform their contractual obligations from the date of the agreement until the institution of the suit. This includes proving that they had the necessary funds or sources to pay the balance consideration and that they were prepared to perform their part at any relevant time (!) (!) .
Burden of Proof: The plaintiff bears the burden of establishing that they subscribed to the terms of the contract with the intention to be bound and that they were ready and willing to perform their obligations throughout the relevant period. Mere assertion without supporting evidence is insufficient (!) (!) .
Evidence of Performance and Readiness: The plaintiff must specifically plead and prove that they either performed their part of the contract or were ready and willing to perform it at the time of filing the suit. Evidence must show that they had the financial capacity or sources to pay the consideration and that they were prepared to do so immediately if required (!) (!) .
Time as an Essential Term: In the context of the contract, the court found that the stipulated time for payment of the balance consideration (by a specific date) was a vital term, making time of the essence. Failure to comply with this time frame constitutes a breach, and such breach can be a bar to specific performance (!) (!) .
Effect of Non-Compliance: Failure to perform the stipulated obligations within the prescribed time or to prove ongoing readiness and willingness can result in the court denying the relief of specific performance, especially if the contract explicitly makes time of the essence or if the conduct of the parties indicates so (!) (!) .
Validity of Evidence: The court scrutinized the evidence presented by the plaintiff, including unregistered sale deeds and documents prepared on stamp papers of minimal value, which were deemed inadmissible and insufficient to establish the plaintiff’s readiness or financial capacity (!) (!) .
Court’s Discretion and Equity: The court highlighted that specific performance is an equitable remedy, which requires strict proof of readiness and willingness. If these elements are not established, the court may exercise its discretion to deny the relief (!) .
Conclusion: The court ultimately found that the plaintiff failed to substantiate their claims of continuous readiness and willingness, lacked proof of available funds, and did not demonstrate compliance with essential contractual terms. Consequently, the appeal was allowed, and the decree for specific performance was set aside (!) (!) .
In summary, to succeed in a claim for specific performance, the plaintiff must clearly demonstrate their ongoing readiness and willingness to perform, backed by credible evidence, and must have complied with essential contractual terms, including timely payment. The court's findings reflect that the plaintiff in this case did not meet these requirements.
JUDGMENT :
Additional Sub Court, Kottayam has decreed O.S.No.213/2008 on 08.11.2021 on the following terms:
2. In case the defendant fails to execute the sale deed as above, the plaintiff is directed to deposit the balance sale price before the court and get the sale deed executed through court at the expense of the defendant.
3. The plaintiff is also entitled to get the costs of the suit from the defendant.”
2. The above judgment and decree are assailed in the appeal by the defendant mainly on the ground that the evidence on record was not appreciated by the court passed it, in its true spirit and meaning.
3. Sri.Biju Abraham the learned counsel, has contended that the defendant had taken a specific contention in the written statement filed in the suit that Ext.A1 agreement for sale on the basis of which the relief of specific performance was sought by the plaintiff was only an agreement fabricated by the plaintiff falsely in a signed stamp paper obtained from him as security while availing Rs.1,50,000/-for repaying his liability towards a bank. According to him, Ext.A1 as it stands then was entered on 06.09.2007, when the plaintiff insisted that money demanded would be given only if a document styled as an agreement for sale is drafted and handed over. According to him, the context in which Ext.A1 was executed being so, it cannot be said to have entered, intending to be acted upon. According to him execution of Ext.A1 in the nature it stands was not intended and it actually being only a security for the money borrowed from the plaintiff, the relief of specific performance of contract ought not to have been granted by the court below in favour of the plaintiff.
4. The learned counsel relying on the dictum of this Court in Mohammed vs. Velayudhan & Another [2001 (1) KLJ 161] contended that it is the burden of the plaintiff to establish that Ext.A1 was entered, intending to execute, in it’s spirit and contents.
5. Yet another contention advanced was that even if Ext.A1 is taken to have entered, intending thereby to execute it in accordance with the terms it carry, then also the plaintiff is not entitled to get the decree sought, for his failure to establish his readiness and willingness throughout the transaction. According to him, by taking a plea that the plaintiff was ready and willing and reiterating it in clear terms while adducing evidence, without establishing something more towards readiness and willingness, a suit for specific performance will not succeed.
6. It has been held by a Division Bench of this Court in Mohammed (supra),
It is set
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