Back
2026 Supreme(Ker) 867
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAMMED NIAS C.P., J.
K.V.Varkey S/o Varghese - Appellant
Vs.
Biju S/o Joseph - Respondent
RFA No. 587 Of 2009 (E)
Decided On : 09-06-2026
Advocate Appeared:
For the Appellant : Sri.Manoj P.Kunjachan
For the Respondent: Shri.Deepu Lal Mohan
Specific performance cannot be granted without proof of continuing readiness and willingness, and a refund of advance money is barred by Section 22(2) of the Specific Relief Act if not specifically pleaded.
Headnote:The appeal concerns a suit for specific performance of an agreement for sale. The trial court held that the sale agreement, although valid, did not warrant a decree for specific performance due to the plaintiff's failure to demonstrate readiness and willingness under S. 16 of the Specific Relief Act and the balance of hardship lying in the defendant's favour. Furthermore, the claim for refund of the advance amount was denied due to the absence of a specific prayer in the plaint and the mandatory requirements of S. 22(2) of the Specific Relief Act. The central issue was whether the plaintiff was entitled to specific performance or, in the alternative, a refund of the advance amount despite no such prayer existing in the plaint. The court held that readiness and willingness must be present at all material times, and the plaintiff's failure to prove financial capacity rendered the claim for specific performance untenable. On the issue of refund, the court affirmed that under S. 22(2), a court cannot order a refund without a formal prayer, noting the plaintiff's failure to seek an amendment despite the court’s flexibility. The final outcome reached by the Court is that the appeal stands dismissed.
| Table of Content |
|---|
| 1. factual background regarding the sale agreement and trial court findings on hardship and readiness. (Para 2 , 3 , 4 , 5 , 6 , 7) |
| 2. assessment of readiness and willingness under s. 16 of the specific relief act. (Para 8 , 9 , 10 , 11 , 12 , 13) |
| 3. procedural bar to granting refund of advance without specific prayer under s. 22 of the specific relief act. (Para 14 , 15 , 16 , 18) |
JUDGMENT :
MOHAMMED NIAS C.P., J.
The plaintiff in a suit for specific performance of a contract is the appellant.
2. The plaintiff and the defendant entered into Ext.A1 agreement for sale dated 01.03.2007, regarding the property belonging to the defendant for a consideration of Rs. 21,000/- per cent, by paying an advance of Rs. 25,000/-. The plaintiff, alleging that the defendant, without complying with the terms of the agreement, was trying to sell away the plaint schedule property, filed O.S.No.286/2007 before the Munsiff's Court, Muvattupuzha, to injunct the defendant from alienating the plaint schedule property. In the said suit, an undertaking was given by the defendant on 11.07.2007 that the plaint schedule property will not be alienated till the disposal of the suit and the same was recorded. Though the defendant filed a written statement and issues were framed, since the plaintiff and his counsel were absent on 28.09.2007, the date fixed for trial, the said suit was dismissed.
3. Alleging that the defendant has not performed the agreement by executing the sale deed, the present suit, O.S.No.134/2007, was filed before the Sub Court, Muvattupuzha. The defendant denied the sale agreement and contended that the same is a forged document, as he never intended to sell his property. It is further stated that the defendant had borrowed Rs. 10,000/- from the plaintiff on 28.02.2007, agreeing to repay the amount with 36% interest within three months and a security for repayment, a photocopy of his title document, blank signed stamp paper worth Rs.50/- and blank signed white papers were taken by the plaintiff from the defendant. The defendant contended that he had paid Rs.5,000/- with interest, and that a balance of Rs. 5,000/- remained unpaid. It is misusing the blank and white papers on which the plaintiff concocted the sale agreement.
4. The trial court framed issues as to whether there was any sale agreement between the plaintiff and defendant, whether the so called sale agreement was a forged document and whether the plaintiff is entitled to specific performance of the contract.
5. PWs 1 to 3 were examined, and Ext.A1 was marked on the side of the plaintiff. DW1 was examined, and Exts.B1 to B7 were marked on the side of the defendant.
6. The trial court, based on the evidence of PWs 2 and 3, who were the witnesses in Ext.A1 sale agreement, found that the same was executed on 01.03.2007 and that it was not a forged document. However, on the question of grant of specific performance, the trial court found that the plaintiff took no steps to get the sale deed executed and had also filed a suit for injunction, which was subsequently dismissed for non-prosecution. The trial court also found that the defendant intended to construct a building on the plaint schedule property and had produced a building plan for the said purpose.
7. The plaintiff's case was that he wanted to purchase the property to construct a house for his son and the evidence showed that the plaintiff had two houses, while the defendant had a building plan ready to construct a house in the plaint schedule property and accordingly found that the grant of specific performance would result in hardship for the defendant and accordingly found that the plaintiff is not entitled to specific performance. As regards the return of the advance amount, the trial court found that no relief was sought for the return of the advance and therefore, in view of the bar imposed by Section 22 of the Specific Relief Act, the plaintiff was not entitled to a decree for refund of the advance amount and a
