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KERALA HIGH COURT
C.Pratheep Kumar, J.
Rosamma and Anr. – Appellants
versus
Raju Arakkal and Anr. – Respondents
RFA No. 298 of 2014
Decided on 10.9.2025
Counsel for the Parties:
For the Appellants: Sri. T. Krishnanunni (Sr.), Smt. Meena A., Sri. M. Devesh Sri. K.C. Kiran, Smt. P.A. Sheeja, Sri. Mathew John (K), Sri. Vinod Ravindranath, Smt. M.R. Mini
For the Respondents: Smt. Jiji M. Varkey, Sri. N.M. Madhu, Smt. K.A. Mary Shri. Shaji Chirayath, Sri. M.M. Shajahan, Smt. C.S. Rajani
IMPORTANT POINT
Agreement to Sell – Suit for Specific Performance – Where performance of intending buyer is conditional upon certain acts to be performed by seller, buyer needs perform his part only after those acts are performed by seller.
Headnote:
Specific Relief Act, 1963 – Section 20 – Agreement to Sell – Suit for Specific Performance – Suit decreed by Trial Court – First appeal by defendants – Generally, with respect to specific performance of immovable properties, time is not essence of contract – Only if defendants had measured schedule property and convinced area and boundaries of property and encumbrance free title of schedule property, plaintiffs could have prepared sale deed and get it registered after paying balance sale consideration – Breach of agreement was committed by defendants themselves – Plaintiffs had sufficient resources to pay balance sale consideration to defendants, during relevant period – Trial court was justified in holding that plaintiffs had sufficient financial capacity to pay balance sale consideration – Where performance of intending buyer is conditional upon certain acts to be performed by seller, buyer needs perform his part only after those acts are performed by seller – There is nothing wrong in discretion exercised by trial court in favour of plaintiffs – Impugned judgment and decree affirmed. (Paras 13, 14, 15 & 26)
Result: Appeal dismissed.
JUDGMENT
The appellants are the defendants in O.S. 1243 of 2010 on the file of the I Additional Sub Court, Thrissur. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)
2. The plaintiffs filed this suit for specific performance of an agreement for sale executed by them along with the defendants 1 and 2 on 13.11.2009. As per the terms of the said agreement, the defendants agreed to sell a total extent of 1.126 cents of property and a building situated therein to the plaintiffs for a total consideration Rs.23,10,000/-. On the date of execution of the agreement (Ext.A1) itself a sum of Rs.6,00,000/- was paid as advance to the defendants. As per the terms of Exhibit A1, the sale deed is to be executed on or before 12.7.2010. According to the plaintiffs, they were always ready and willing to perform their part of the contract and that the sale deed could not be executed due to the default of the defendants. On the other hand, the defendants would contend that they were always ready and willing to perform their part of the contract and that the contract could not be performed due to the default of the plaintiffs. It was in the above context that the plaintiffs filed this suit for specific performance.
3. The trial court framed four issues. The evidence in the case consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to A22 series, B1 to B15, X1 and X2. After evaluating the evidence on record, the trial court decreed the suit and directed the defendants to execute a sale deed in respect of the plaint schedule property after receiving the balance sale consideration. Aggrieved by the above judgment and decree of the trial court, the defendants preferred this appeal.
4. Now the points that arise for consideration are the following:
1) Whether the plaintiffs were always ready and willing to perform their part of the contract, as claimed?
2) Whether the trial court has exercised the discretion under Section 20 of the Specific Relief Act, correctly?
3) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal?
5. Heard Sri T. Krishnanunni, the learned Senior Counsel appearing for the appellants and Sri. N.M. Madhu, the learned counsel for the plaintiffs.
6. The points: Execution of Exhibit A1 agreement dated 13.11.2009 is admitted by both sides. As per the terms of Exhibit A1 agreement, the defendants 1 and 2 agreed to sell the plaint schedule property consisting of a total extent of 1.126 cents of land and a building situated therein, to the plaintiffs for a total sale consideration of Rs. 23,10,000/-. On the date of execution of Ext.A1 agreement, a sum of Rs. 6,00,000/- was paid in advance. As per the terms of Exhibit A1, the sale dead was to be executed on or before 12.07.2010. However, the agreement could not be performed within the agreed period and with regard to the party who has committed breach, both sides have accused each other. While according to the plaintiffs, they were always ready and willing to perform their part of the contract, and it could not be materialized due to the default of the defendants, according to the defendants, it was due to the default of the plaintiffs that the contract would not be performed. The defendants also raised a contention that the plaintiffs were not having the required financial capacity to pay the balance consideration.
7. On 09.07.2010, the defendants issued Ext.A5 lawyer’s notice to the plaintiffs demanding them to appear before the Sub Registar’s Office concerned, with the balance sale consideration to get the sale deed executed. The said notice was received by the plaintiffs on 10.07.2010. On the very same day, the plaintiffs sent Exhibit A2 reply notice informing the defendants that they have not complied the pre-requisites for the performance of the contract as stipulated in the contract like handing over the documents r
