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2023 Supreme(Online)(Ker) 56828
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MARY JOSEPH, J
SHOBHA.V.S. – Appellant
Versus
ANNA PETER – Respondent
RFA NO. 399 OF 2014 | CO NO. 123 OF 2014 | O.S NO.504/2007
For the Appellants/Petitioners: SHRI.SHANKAR, SRI.K.SANDESH RAJA
For the Respondents: SMT.R.BINDU, SRI.HARISH GOPINATH, SRI.JOHNSON JOSE PANJIKKARAN, SRI.R.S.KALKURA, SRI.M.S.KALESH, SRI.K.KURIAN KOSHY, SMT.A.V.PRIYA, SRI.SANIL KUNJACHAN
A court may deny specific performance if granting it would impose greater hardship on the defendant than denying it would impose on the plaintiff, even absent clear evidence of fraud or misrepresentation.
Headnote:(A) Specific Relief Act, 1963 - Section 20 and 22 - Appeal for specific performance of a contract for sale dismissed by lower court - Plaintiff claimed an agreement was fraudulently executed, defendant contended it was a misrepresentation - Court noted that the hardship caused to the defendant by granting specific performance is greater than that to the plaintiff by denying it - No clear evidence of the claimed fraud or hardship was presented, leading to a remand for additional evidence on comparative hardships. (Paras 1, 8, 45, 51)
(B) Jurisdiction of Courts - Discretionary relief of specific performance is not automatic - Courts consider equities and the conduct of parties in granting such relief. (Paras 26, 30)
(C) Amendments in Pleadings - Relief under Section 22(2) is necessary to prevent multiplicity of lawsuits, allowing amendment at any stage for incorporation of claims. (Paras 22, 50)
Facts of the case:
The plaintiff sought specific performance of a sale agreement claiming that the defendant executed it under misrepresentation. The defendant alleged fraud and contended that she had not intended to enter into the agreement, which triggered the lawsuit after difficulties arose in executing the sale deed.
Findings of Court:
The court found it inequitable to grant specific performance based on the hardship test outlined, ruling that the consequences for the defendant outweighed potential advantages to the plaintiff.
Issues: Whether the suit is maintainable, the plaintiff's entitlement to specific performance, and whether the court should grant relief based on proven hardships.
Ratio Decidendi: The court reasoned that without specifically raising the issue of comparative hardships in the initial trial, all parties were not given adequate opportunity to present their cases. Therefore, there was a necessity to reassess the evidence and allow for further proceedings.
Result: Appeal and Cross Objection allowed, case remanded.
| Table of Content |
|---|
| 1. initial background of the ownership dispute. (Para 1 , 3) |
| 2. defendant's claims of fraud and misrepresentation. (Para 4 , 5 , 10 , 14) |
| 3. issues raised by the court regarding maintainability. (Para 6 , 8 , 9) |
| 4. court's consideration of hardship and equitable outcomes. (Para 38 , 42) |
| 5. court's power to grant relief for possession and refund. (Para 48 , 49) |
MARY JOSEPH, J.
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R.F.A. No. 399 of 2014 & C.O No.123 of 2014
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Dated this the 09th day of May, 2023 This appeal is originated from a judgment dated 06.03.2014 of IInd Additional Sub Court, Thiruvananthapuram (for short 'the court below') in O.S.No.504/2007. The Original Suit was filed by the appellant before the court below seeking for specific performance of an agreement for sale.
2. The parties to this appeal will hereinafter be referred to as the plaintiff and the defendant in accordance with their status before the court below.
3. It was averred in the plaint that by virtue of an agreement for sale executed among the defendant with the plaintiff, plaint B schedule property which is a portion of plaint A schedule property obtained by the defendant by virtue of a Will bearing No.55 of 1969 of SRO Thiruvananthapuram and a release deed bearing No.1990 of 1992 of SRO Pattam was agreed to be sold to the plaintiff for a consideration of Rs.7,00,000/-. Rs.3,25,000/- was received on the date of execution of the agreement for sale itself as earnest money. Plaint B schedule property has an extent of 1 cent from the road to the property belonging to the plaintiff. The time stipulated in the agreement for payment of balance sale consideration of Rs.3,75,000/- and for getting the sale deed executed in favour of the plaintiff was five months from the date on which the agreement was executed. Though the plaintiff was always ready and willing to pay the balance sale consideration to the defendant and to meet the expenses for execution of the sale deed, the latter preferred a petition before Kerala Women's Commission, Thiruvananthapuram, against the plaintiff's husband on 18.06.2007 alleging that the defendant has never executed an agreement for sale in favour of the plaintiff and seeking to get the alleged agreement for sale returned. The plaintiff was informed by the defendant that she is not willing to perform her part of the contract. Thereupon, a petition was filed by the plaintiff before the Museum Police Station and for the reason that the issue involved is of civil nature, the petition was closed. Thereafter, a lawyer notice was sent by the plaintiff to the defendant on 03.07.2007 seeking for compliance of the terms and conditions in the agreement for sale. A reply notice was sent by the defendant to the plaintiff on 09.07.2007 stating that she is not bound to comply with the terms. In the said context the filing of a suit seeking for a direction to the defendant to execute a sale deed in respect of B schedule property on accepting the balance sale consideration of Rs.3,75,000/- within a time period specified by the court was necessitated. A decree for permanent prohibitory injunction and other reliefs were also sought in the suit by the plaintiff.
4. A written statement was filed by the defendant contending that the plaintiff is not entitled to get the discretionary relief of specific performance on the basis of the alleged agreement for sale, got executed by playing fraud and misrepresenting her that the defendant had never executed the alleged agreement for sale intending thereby to sell the B schedule property and that consensus among herself and the plaintiff was not there. The plaintiff is a neighbour of the defendant and the defendant's mother and sister are residing in a building bearing No.TC 11/1536, BBRA-82 situated in plaint A schedule property, that a good relationship is maintained among herself and the plaintiff, that there were mutual monetary transactions among the
