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KERALA HIGH COURT
P.N.Ravindran and Anil K.Narendran, JJ.
Vinodan —Petitioner
versus
Sunil Kumar & Ors. —Respondents
RFA No.694 of 2011 (D)
Decided on 10.4.2015
For the Petitioner:Mr.P.B.Krishan, Smt. Geetha P.Menon, Mr.P.M.Neelakandan & Mr. P.B. Subramanya, Advocates
For the Respondents:Mr.V.V.Suresh & Mr.K.Padmanabhan, Advocates
IMPORTANT POINT
Unless the plaintiff is ready and willing to perform his part of contract, relief of specific performance cannot be granted.
Headnote:(A) Specific Relief Act 1963, Section 16 (1) (c)- Readiness and willingness to perform part of agreement- Basic principle a person seeking benefit of specific performance of contract must show that the contract has been blemishless- The court is grant to relief on the basic of the contract of the plaintiff- The plaintiff failed to show that he had sufficient money for payment of balance sale consideration- It can be presumed that he was not ready and willing to perform his obligations- In this regard vague statement in the pleading cannot be relied upon in the absence of specific pleading. (Paras 22 to 25)
(B) Specific Relief Act 1963, Section 16- Plaintiff failed to prove his readiness and willingness to perform his part of contract- Plaintiff, not entitled to decree of specific performance- However plaintiff held entitled to return of advance money with 6 % interest. (Paras 28 to 30)
Facts of the Case
The plaintiff filed suit for specific performance of the suit property on the basis of sale agreement dated 17-4-2007 on payment of Rs. 25000/- as advanced money. Though the plaintiff was ready and willing to perform his part of contract, the defendant failed to produce the title deeds of his property for verification of title and measurement in spite of the fact that plaintiff issued notice through his counsel. Rather the defendant attempted to cut the standing fruit trees from the property. He also could not prove that he was having sufficient balance money.
Findings of the Court
The basic principle behind section 16 (c) of the Specific Relief Act 1963, read with explanation (ii) is that, any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout, entitling him to the specific relief, and that Section 16 imposes a personal bar. The Apex Court has also clarified that, section 16 (c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The Court is to grant relief on the basis of conduct of the person seeking relief. In the absence of readiness and willingness, no relief can be granted to the plaintiff. The plaintiff however held entitled to return his advance money with 6 % interest.
Result Appeal partly allowed.
Anil K.Narendran, J.—The appellant is the first defendant in O.S.No.1054 of 2007 on the file of the Court of the Subordinate Judge of Thrissur. The first respondent herein filed the said suit seeking specific performance of Ext.A1 agreement dated 17.4.2007 for sale of the plaint schedule property and in the alternative for return of the advance amount of 25,000/- together with interest at the rate of 12% from the date of Ext.A1 sale agreement and a further sum of 50,000/- towards damages.
2. The court below decreed the suit and the first respondent/plaintiff was directed to pay the balance sale consideration at the rate of 24,250/- per cent to the appellant/first defendant within one month from the date of decree and the first defendant in turn was directed to receive the said amount and to execute a sale deed in respect of the entire property described as plaint schedule item No.1 and share in the property described as plaint schedule item No.2. It was also ordered that, if the appellant/first defendant refuses to receive the balance sale consideration and execute the sale deed within the stipulated period, the first respondent/plaintiff can deposit the balance sale consideration in court, within two weeks from the date of expiry of the aforesaid period of one month and file a petition to have a sale deed executed in his favour. Aggrieved by the judgment and decree of the court below, the appellant/first defendant is before us in this appeal.
3. We heard the arguments of the learned counsel for the appellant/first defendant, the learned counsel for the first respondent/plaintiff and also the learned counsel for respondents 2 to 4/defendants 2 to 4.
4. Going by the averments in the plaint, the property described as plaint schedule item No.1 belongs to the appellant/first defendant. The property described as plaint schedule item No.2 originally belonged to late Madhavi, who was the paternal grandmother of the appellant/first defendant and respondents 2 to 4/defendants 2 to 4, in which the appellant/first defendant have share and respondents 2 to 4/defendants 2 to 4 together have the remaining share. The appellant/first defendant for himself and on behalf of respondents 2 to 4/defendants 2 to 4 had agreed to sell the plaint schedule property to first respondent/plaintiff. Accordingly, appellant/ first defendant and the first respondent/plaintiff executed Ext.A1 sale agreement dated 17.4.2007, on payment of an advance of 25,000/-, which the appellant/first defendant received for and on behalf of himself and on behalf of respondents 2 to 4/defendants 2 to 4. As per the terms of Ext.A1 agreement, on the first respondent/plaintiff paying the sum of 3,00,000/- within 3 months from the date of execution of Ext.A1 sale agreement, the appellant/first defendant and respondents 2 to 4/defendants 2 to 4 agreed to execute a sale deed in his favour, in respect of 10 cents of property forming part of the plaint schedule property. The sale consideration fixed in Ext.A1 sale agreement was at the rate of 24,250/- per cent and the time limit for completion of the contract was fixed as 27.10.2007. Though the first respondent/plaintiff was ready and willing to perform his part of contract, the appellant/first defendant and others failed to produce the title deeds and encumbrance certificates of the property for verification and also to measure out the property in order to ascertain the actual extent. On 10.8.2007, the first respondent/plaintiff sent Ext.A2 lawyer notice, to which the appellant/first defendant sent Ext.A5 reply raising false and untenable contentions. In the meantime, there was an attempt on the part of the appellant/first defendant to cut and remove one jack fruit tree standing in the plaint schedule property. The first respondent/ plaintiff again sent Ext.A6 notice dated 29.6.2007, requesting the appellant/first defendant and others to execute the sale deed, to which the appellant/first defendant sent Ext.A8 reply dated 8.10.
