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2022 Supreme(Online)(KER) 35083
HIGH COURT OF KERALA
Sathish Ninan, J
KUTTAPPAN – Appellant
Versus
KALA AND ANOTHER – Respondent
RSA 1241 2008
SRI.M.RAMACHANDRAN NAIR
Specific performance requires clear averments of readiness and willingness as per Section 16(c) of the Specific Relief Act; a failure to meet this condition precludes such relief, but allows for recovery of advance payments.
Headnote:
Specific Performance - Specific Relief Act - Section 16, Section 21 - The court upheld that while the genuineness of the agreement was recognized, failure to demonstrate readiness and willingness as mandated under Section 16(c) of the Specific Relief Act barred specific performance, but the plaintiff was entitled to recovery of the advance amount with interest.
Fact of the Case:
The plaintiff sought specific performance of a sale agreement executed by the defendants, who denied its execution. The trial court found the agreement genuine and decreed specific performance, but the appellate court reversed this ruling based on lack of readiness and willingness.
Finding of the Court:
The court confirmed the genuineness of the sale agreement but ruled out specific performance due to insufficient claims of readiness and willingness by the plaintiff as required by law. It deemed the defendants liable to refund the advance amount received.
Issues: 1) Was the appellate court right in denying specific performance based on lack of readiness and willingness? 2) Is the plaintiff entitled to a refund of the advance amount?
Ratio Decidendi: The appellate court's adherence to Section 16(c) of the Specific Relief Act was essential for denying specific performance, but the refund of the advance amount was warranted as unjust enrichment by the defendants was determined.
Final Decision: The appeal was allowed, awarding the plaintiff the repayment of the advance amount with interest.
J U D G M E N T
The suit for specific performance of Ext.A1 agreement for sale, was decreed by the trial court. The decree was reversed in appeal and the suit dismissed.
Aggrieved thereby the plaintiff is in Second Appeal. 2. Ext.A1 agreement dated 16.01.1994 executed by the defendants in favour of the plaintiff is sought to be specifically enforced. As per Ext.A1, the plaint schedule property is agreed to be conveyed by the defendants to the plaintiff for a sale consideration of ` 25,000/-. An amount of ` 5,000/- is stated to be paid as advance amount. The defendants have failed to honour the agreement. Accordingly, the suit is filed. The defendants denied execution of Ext.A1 agreement.
3. The trial court found Ext.A1 agreement to be genuine. It was also found that the defendants have committed breach of the agreement. Accordingly, the suit was decreed. On appeal by the defendants, the first appellate court concurred with the finding of the trial court regarding the genuineness of Ext.A1 agreement. However, the prayer for specific performance was disallowed finding that the plaint lacks averments regarding readiness and willingness as mandated under Section 16 (c) of the Specific Relief Act.
4. Heard learned counsel on either side on the following substantial questions of law :- “(i) Having found that the plaint lacks averments of readiness and willingness as mandated under Section 16 (c) of the Specific Relief Act, was not the first appellate Court right in having declined a decree for specific performance ?
(ii) Ext.A1 agreement having been found to be genuine, but plea of specific performance having been declined, is not the plaintiff entitled for refund of the advance amount with interest ? Was the appellate Court right in having relegated the plaintiff to a separate suit for recovery of the advance?”
5. Ext.A1 is the agreement sought to be specifically enforced. Both the courts appreciated the evidence in extenso and concurrently held Ext.A1 agreement to be genuine. The first appellate court found that the plaint lacks necessary averments of readiness and willingness as mandated under Section 16 (c) of the Specific Relief Act. Learned counsel for the appellant would contend that, the plaint, though does not specifically mention “readiness and willingness”, a reading of the entire plaint would indicate the readiness and willingness of the plaintiff. The learned counsel for the respondent relied on the judgment of the Apex Court inPadmakumari and Ors. v. Dasayyan and Ors. [(2015)8 SCC 695] to contend that the compliance with the requirements as mandated under (c) is mandatory. The first appellate court held that there is no plea of readiness and willingness, as mandated under (c) of the Specific Relief Act. In the absence of the plea in the said regard, a decree for specific performance could not have been granted in favour of the plaintiff. The appellate court was right in having rejected the prayer for specific performance. Substantial question of law No.(i) is answered accordingly.
6. The genuineness of Ext.A1 agreement having been found but the plaintiff being held to be not entitled for the relief of specific performance, the defendant cannot take unjust enrichment by retaining the advance amount received from the plaintiff. Necessarily he is bound to repay the advance amount received with interest. Relief (C) in the plaint reads thus:
“Without prejudice to the prayer ‘A’ and ‘B’ the Honourable Court may allow reliefs as envisaged under Section 21 of the Specific Relief Act 1963 by awarding compensation for the breach of contract either, in addition to, or the substitution of such performance along with interest and cost at the rate of 18%
per annum from the date of sale agreement.”
7. In the appeal memorandum also, there is specific ground based on prayer (C) in the plaint referred above. A specific relief having been sought, there was no reason why the plaintiff should have been asked to file a separate suit for recover
