IMPORTANT POINT
The court upheld the trial court's discretion in denying specific performance, emphasizing the necessity of the plaintiff's readiness and willingness to proceed with the sale.

JUDGMENT :

Sathish Ninan, J.

The suit for specific performance with alternate relief for return of advance, was decreed for the alternate relief. Dissatisfied with the decree, the plaintiff is in appeal.

2. Ext.A2 is the agreement dated 22.09.2006 which is sought to be specifically enforced. The plaintiff and the defendants are first cousins (children of brothers). As per Ext.A2, the property belonging to the defendant under document No.2768/1993 of the Perumbavoor SRO was agreed to be sold to the plaintiff for a sale consideration of Rs. 26,500/- per cent, for the extent found available on measurement. On the date of agreement an amount of Rs. 50,000/- was paid towards advance sale consideration. The period fixed for performance was six months. Alleging failure of the defendant to perform the agreement, the suit was filed.

3. The defendant challenged the readiness and willingness of the plaintiff to go ahead with the transaction.

4. The trial court, exercising the discretion under section 20 of the Specific Relief Act, declined specific performance.

5. I have heard Sri. G.Rajagopal, the learned counsel for the appellant and Sri. G.Sreekumar Chelur, learned counsel for the respondent.

6. The point that arises for determination is,

"Does the exercise of discretion by the trial court under section 20 of the Specific Relief Act, declining decree for specific performance, warrant interference?"

7. PW1 is the power of attorney holder of the plaintiff. He is the brother of the plaintiff. The plaintiff is working abroad. Adjacent to the property in question is a wetland which belonged to the defendant and was conveyed to PW1 during the currency of Ext.A2 agreement. According to the defendant, the wetland was conveyed at the rate of Rs. 3,500/- per cent, and claiming that the property covered under Ext.A2 is also a converted land the plaintiff wanted the sale consideration in Ext.A2 to be reduced. It is alleged that the plaintiff had caused complaints to be filed before the Revenue Divisional Officer alleging filling up of paddy land. Except for the averment, there is no evidence regarding the same. However it is not in dispute that, it was during the currency of Ext.A2 agreement that the adjoining wetland was got conveyed by PW1 from the defendant.

8. In the cross-examination of PW1 it is admitted that the sale agreement was entered into to enable the defendant to purchase a property which is situated near to his wife's house. On the first date of appearance before the trial court, the defendant expressed before the Court his readiness to execute the sale deed, that is essentially conceding for the suit to be decreed. Taking note of the same, the court ordered execution of the sale deed on or before 22.06.2007. However, surprisingly, the plaintiff did not take any step to get the sale deed executed. He proceeded with the trial of the suit. Having due consideration to the conduct of the plaintiff the trial court refused to grant decree for specific performance.

9. According to the learned counsel for the appellant, the defendant was bound to satisfy the plaintiff of the extent available, and that the total sale consideration payable was to be fixed based on the same. The obligation of the plaintiff to perform the contract arises only after the defendant convinces him about the extent of property. The defendant having failed in his obligation, the readiness and willingness of the plaintiff is irrelevant. To substantiate the contention, the learned counsel relied on the judgment of this Court in Faizal Eroth v. Venkalath Raveendran 2013 (3) KLT 1041. The learned counsel would further rely on the judgments in Gaddipati Divija v. Pathuri Samrajyam 2023 KHC 6404, Daivasigamani P. v. S. Sambandan AIR 2022 SC 5009, Aniglase Yohannan v. Ramlatha and Ors. 2005 (4) KLT 280 to contend that, the exercise of discretion under Section 20 is to be founded on sound legal principles and cannot be arbitrary. On the facts of the case, discretion ought have been ex