Back
2025 Supreme(Online)(Ker) 16165
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J
P.A. THOMAS (DIED) – Appellant
Versus
M/S.SOUTHERN HOUSING CORPN LTD – Respondent
RFA 175/2003
S.R. DAYANANDA PRABHU, K.S.RAJESH, SRI.K.JAYAKUMAR (SR), SRI.M.SREEKUMAR, SRI.SAJU S.POONTHODATHU, SRI.P.R.VENKATESH, SRI.SUNIL N.SHENOI, SRI.P.VISWANATHAN, SRI.C.S.AJITH PRAKASH, SRI.D.ANIL KUMAR, P.VISWANATHAN (SR.), AJITH VISWANATHAN
The plaintiff must demonstrate continuous readiness and willingness to perform a contract for specific performance, while the defendants' failure to comply with their obligations justifies the court's decree.
Headnote:(A) Code of Civil Procedure, 1908 - Section 96 and Order XLI Rule 1 - Specific Relief Act, 1963 - Section 16(c) - Appeal against decree for specific performance - Trial court found plaintiff ready and willing to perform contract, while defendants failed to comply with obligations - Defendants' claims of plaintiff's laches rejected - Court upheld trial court's discretion in granting specific performance. (Paras 1, 30, 42, 47)
(B) Specific Performance - Readiness and willingness - Plaintiff must prove readiness and willingness throughout the contract period - Discretionary relief granted based on evidence of compliance and conduct of parties. (Paras 42, 43)
(C) Bonafide Purchasers - Defendants 3 to 5 failed to establish status as bonafide purchasers due to lack of original title deed and proper documentation. (Paras 44, 46)
Facts of the case:
The suit was filed for specific performance of a sale agreement regarding property, with disputes over advance payments and compliance with contractual obligations. The trial court found the plaintiff had paid 65% of the sale consideration and was ready to execute the sale deed, while the defendants failed to fulfill their obligations.
Findings of Court:
The trial court's decree for specific performance was upheld, confirming the plaintiff's readiness and the defendants' failure to comply with the agreement.
Issues: The main issues included whether the suit was barred by limitation, whether the plaintiff was ready and willing to execute the sale agreement, and the status of defendants 3 to 5 as bonafide purchasers.
Ratio Decidendi: The court ruled that the plaintiff had proven readiness and willingness to perform the contract, while the defendants' failure to comply with their obligations justified the decree for specific performance.
Result: Appeals dismissed; defendants directed to execute the sale deed within one month.
JUDGMENT
Dated this the 25th day of March, 2025
R.F.A. No.175 of 2003 has been filed by defendants 1 and 2 and additional defendants 6 to 8 in O.S. No.668/1994 on the files of the Sub Court, Ernakulam, under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 , challenging the decree and judgment in the above case dated 11.12.2002. The respondents herein are the plaintiffs and additional defendants 3 to 5.
2. R.F.A. No.209 of 2003 is also filed challenging the decree and judgment in O.S. No.668/1994, at the instance of additional defendants 3 to 5, arraying the plaintiffs and other defendants as the respondents.
3. Heard the respective senior counsel for the appellants and the learned counsel appearing for the respondents, in detail. Also heard the learned counsel for the additional 9th respondent in I.A. No.1196 of 2005 in R.F.A. No.209 of 2003, who filed I.A. No.1884/2006 in I.A. No.1480/2006 in I.A. No.1221/2003 in R.F.A. No.209 of 2003 and this Court passed order dated 31.07.2006. Perused the verdict under challenge and the records of the trial court and the decisions placed.
4. Parties in these appeals shall be referred with reference to their status before the trial court.
5. The suit has been filed by the 1st plaintiff (originally only one plaintiff, M/s Southern Housing Corporation Ltd. represented by its Director and subsequently 2nd additional plaintiff, the Court Receiver also impleaded) seeking performance of Ext.A2 agreement, which is, in fact, continuation of Ext.A1 agreement executed between the 1st plaintiff and defendants 1 and 2. As per Ext.A1 agreement, it was agreed to sell 178.5 cents of property for a total sale consideration of Rs.5,750/- per cent and 180 cents of property for a total consideration of Rs.7,750/- per cent. Thereafter, Ext.A2 agreement was executed between the same parties and the covenants therein read as under:
2. The total sale consideration of the property is Rs. 18,63,375/- and the sale shall be completed within 9 months from this date.
3. The purchaser shall prepare the plan in accordance with the rules and regulations of GCDA or any other competent authorities for promoting flats at the above said land and shall submit the papers duly getting signatures from the vendors, wherever required, to the appropriate authoroties and all expenses will be borne by the purchaser for getting approval. The planning permit will be obtained in 'Vendors' name and shall be transferred in 'Purchaser' name or its nominees' name as may be required by the purchaser.
4. The vendors shall sign all the documents needed, in the 'Purchaser's effort to get the approval from the authorities concerned and shifting of transformer if necessary so as to enable the 'Purchaser' to launch the housing projects within reasonable period.
5. The vendors agree and undertake to give vacant possession of the said plots and unequivocally permit the purchaser to proceed with the development and constructions activities in the said plots with effect from the date on which this agreement is entered into between the vendors and purchasers.
6. The vendors shall agree to register the land either in parts or in full in favour of the purchasers or their nominees in proportion to the sale consideration received from the purchaser from time to time. The vendors undertakes to obtain all necessary approvals required from Income Tax and other authorities for the purpose to registration of the above land.
7. Upon receipt of the entire sale consideration the vendors agree to give en irrevocable Power of Attorney to the purchasers if the purchaser so demand.
8. After discharging Union Bank of India loan, out of the money received from the purchaser, the vendors will create mortgage of the above mentioned property as security to the Purchasers Bank by way of mortgage so as to enable the purchaser to get necessary finance for the above scheme and/or will provide the landed property by way of security to any housing finance institut
