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KERALA HIGH COURT
K. Harilal and Annie John, JJ.
Ahammed Koya K.M. —Appellant
versus
Moorkoth Sujitha —Respondent
R.F.A. No.295 of 2015
Decided on 8.2.2019
For the Appellant:K.M. Firoz, M. Shajna and S. Kannan, Advocates
For the Respondent:Harish R. Menon and K.T. Shyamkumar, Advocates
IMPORTANT POINTS
(1) Court is not bound to grant decree for specific performance merely because it is lawful to do so.
(2) Court has power to enhance amount payable as sale consideration and re-fix amount payable for such transaction.
Headnote:
(A) Specific Relief Act, 1963—Section 20—Suit for Specific Performance of Agreement—Court is not bound to grant decree for specific performance merely because it is lawful to do so—Court may take notice of fact that there has been an increase in price of property and considering other facts and circumstances of case, Court while granting decree for specific performance can impose such condition which may to some extent compensate defendant-owner of property—Efflux of time and escalation of price of property by itself cannot be a valid ground to deny relief of specific performance—But Court in its discretion may impose reasonable conditions including payment of additional amount to vendor—Plaintiff is not to be denied specific performance only on account of phenomenal increase of price during pendency of litigation. (Paras 9, 21 and 22)
(B) Agreement to Sell—Suit for Specific Performance of Agreement—There is condition stipulated in sale documents that unless and until tenant who occupies building is evicted agreement as executed between the appellant and respondent should not be performed—Efflux of time and escalation of price of property by itself cannot be a valid ground to deny relief of specific performance—Court in its discretion may impose reasonable conditions including payment of additional amount to vendor—Court has power to enhance amount payable as sale consideration and re-fix amount payable for such transaction—Due to laches on part of respondent/defendant, sale could not be executed in time—Appellant/plaintiff directed to deposit balance sale consideration before Court below within one month—On deposit of said amount, respondent/defendant shall execute sale of plaint schedule property within one month from date of deposit of amount. (Paras 26, 27, 28 and 29)
Result: Appeal allowed.
JUDGMENT
Annie John, J.—The appellant herein is the plaintiff and respondent herein is the defendant in O.S. No. 328/2013 on the files of the Additional Sub Court-II, Kozhikode. The suit is one for specific performance of contract with alternative prayer for realisation of advance amount. The appellant on 09/01/2010 entered into Ext. A1 agreement with the respondent by which the respondent agreed to sell and the appellant agreed to purchase the plaint schedule property for a total sale consideration of Rs. 97 lakhs. On the date of execution of Ext. A1, Rs. 15 lakhs were paid to the respondent as advance. The respondent before execution had agreed to evict the tenant, who had occupied the plaint schedule property. Since the tenant was not evicted as promised, respondent sought for further time to fulfill his part of contract. Though the appellant was willing and ready to perform his part of contract, the respondent was not ready to accept the same. In the said circumstances, the above suit was filed.
2. The respondent entered appearance filed written statement and resisted the prayers therein. Execution of Ext. A1 and A2 and receipt of Rs. 15 lakhs towards advance sale consideration were denied by the respondent. The learned Sub Judge on erroneous appreciation of evidence, facts and circumstances of the case in hand, by impugned judgment and decree speciously dismissed the suit finding that the appellant was not entitled for a decree for specific performance of contract. The Lower Court has decreed the suit for realisation of an amount of Rs. 15 lakhs and it was found that the appellant is entitled to realise the same with 8% interest from the respondent from 09/01/2010 till realisation of the entire amount. The respondent had denied execution of Exts. A1 and A2 agreements.
3. The Trial Court has found that Exts. A1 and A2 agreements have been executed by the respondent as claimed by the appellant. So having found that the denial of execution is false, the Court below ought to have granted the discretionary relief of specific performance of contract in favour of the appellant. Hence, the appeal.
4. On the side of appellant P.W. 1 and P.W. 2 were examined and Exts. A1 to A3 were marked. On the side of respondent, DW1 was examined and Ext. B1 was marked. The ground as urged for interference of this Court is that the Court below passed the impugned judgment without properly appreciating the facts and circumstances of the case. The respondent had denied execution of Exts. A1 and A2 agreements. But the Trial Court ultimately found that Exts. A1 and A2 agreements are genuine one and executed by the respondent. The Court below ought to have appreciated the fact that the tenant, who was occupying premises were only evicted by the respondent recently and that for the said reasons, Ext. A2 agreement was executed at the instance of the respondent. The Court below further erred in finding fault with the appellant in so far as not issuing lawyer notice. As such, issuance of a lawyer notice is not a pre-condition for instituting a suit for specific performance of a contract.
5. On these grounds, the appellant prays for setting aside the decree and judgment dated 28/11/2014 in O.S. No. 328/2013 on the files of Additional Sub Judge-II, Kozhikode to the extent disputed herein by allowing this appeal and decree the suit in full, as prayed for with cost. In fact, the suit was filed for specific performance of the contract on the basis of Exts. A1 and A2 agreement entered between the appellant and respondent mutually and with respect to the plaint schedule property. It was argued that at the time of execution of Ext. A1 agreement, the appellant had paid Rs. 15 lakhs to the respondent towards the total sale consideration mutually agreed for Rs. 97 lakhs. The plaint schedule property described as only one cent of property (0.40 ares) at Kozhikode consists of one shop room with vacant land on the back. At the time of execution of Exts. A1 agreement,
