The court held that specific performance is a discretionary relief and denied it due to the plaintiff's delay and lack of demonstrated readiness to perform the contract, resulting in inequity to the defendants.

JUDGMENT :

C. PRATHEEP KUMAR, J.

1. The plaintiff in OS. No.155/2012 on the file of Sub Court, Kattappana is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court).

2. The plaintiff filed the suit for specific performance of an agreement for sale dated 23.12.2005 and in the alternative for return of advance amount. According to the plaintiff, the defendants agreed to sell the plaint schedule property, which the defendants are entitled to as per the final decree proceedings in I.A. No.677/2003 in OS No.29/2000 pending before the Sub Court, Kattappana, to the plaintiff for a consideration of Rs.20,00,000/- As per the agreement, the plaintiff paid an advance amount of Rs.2,00,000/- to the defendants. As per the agreement, the balance consideration is to be paid and the sale deed is to be executed within a period of six months. It was also agreed that in case of any unexpected delay in passing the final decree, the agreement is to be performed within a period of three months after passing of the final decree.

3. According to the plaintiff, on the date of agreement itself, the plaintiff was put in possession of the plaint schedule property and a power of attorney dated 5.1.2006 was also executed in favour of the plaintiff. Accordingly, the plaintiffs cultivated the property with cardamom spending a sum of Rs.10,00,000/- and now it is a high yielding cardamom plantation getting attractive profit. The plaintiff has performed substantial part of the agreement, settled an appeal preferred by the brother of the 2^nd defendant and brother-in-law of the 2^nd defendant before the High Court as AS.No.93/2003 paying a sum of Rs.6,10,000/- and thereby the specific performance of the agreement became possible. However, now the defendants are not willing to perform the contract after receiving the balance sale consideration. The power of attorney executed in favour of the plaintiff was also cancelled on 6.3.2009. The plaintiff also came to know that the defendant is taking hasty steps to sell the plaint schedule property to third persons, ignoring the agreement executed with the plaintiff. In the above circumstances, the plaintiff instituted a suit before the Sub Court, Kattappana as OS No.235/2010 after issuing a lawyers notice on 29.1.2010. Since the defendants failed to perform the contract in spite of issuing lawyer notice dated 29.1.2010 (Exhibit A7), the plaintiff preferred the suit.

4. Defendants 1 and 2 filed a written statement contending that the suit is barred under Order II Rule 2 CPC, as the plaintiff failed to seek relief of specific performance in O.S. No.235/2010. Further according to them, the agreement dated 23.12.2005 (Exhibit A1) was intended to be performed within a period of six months from the date of its execution and it was never intended to be postponed for a period of three months after passing the final decree. The plaintiff was never put in possession of the plaint schedule property under the agreement as the property was under the co-ownership of other owners also. The defendants executed a power of attorney in favour of the plaintiff for the sole purpose of cultivating and managing plaint schedule property as they were residing elsewhere. The plaintiff was liable to furnish proper accounts of the income received from the property. Since he did not furnish the accounts of the income received from the plaint schedule property, the power of attorney was cancelled. The defendants are not aware of the settlement entered into between the plaintiff and the appellant in AS.No.93/2003 and the payments made by the plaintiff to the appellant therein.

5. After the dismissal of the appeal, the final decree was passed and separate possession of the respective shares were also allotted to the parties. Therefore, the suit for specific performance, is a premature one. Since the plaintiff failed to pay the balance sale consideration within six months from the date of