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2023 Supreme(Online)(KER) 14247
HIGH COURT OF KERALA
Sathish Ninan, J
ALEX KOSHY REPRESENTED BY – Appellant
Versus
VENUGOPAL – Respondent
RFA 638 2009
R.SANJITH, C.S.SINDHU KRISHNAH, V.M.ALI, K.M.JAMALUDHEEN, LATHA PRABHAKARAN, T.KRISHNANUNNI (SR.), P.A.ISMAIL KHAN, P.M.KRISHNANKUTTY
The testimony of a power of attorney holder is sufficient to prove the principal's readiness and willingness for specific performance, especially when no personal testimony is available.
Headnote:
Specific Performance - Agreement for Sale - Specific Relief Act - Sections 16(c), 19(b) - The court held that the plaintiff demonstrated readiness and willingness to perform the contract through his power of attorney holder, establishing grounds for specific performance despite the trial court's initial denial.
Fact of the Case:
The plaintiff sought specific performance of an agreement for sale, claiming he had paid significant advance consideration. The defendants asserted good faith in selling the property to a third party without notice of the prior agreement.
Issues: The court considered whether the power of attorney holder's testimony sufficed to demonstrate the plaintiff's readiness and willingness, whether the second defendant was a bona fide purchaser, and if the plaintiff was entitled to specific performance.
Ratio Decidendi: The court determined that the testimony of a power of attorney is valid for establishing readiness and willingness when the principal could not personally testify, disentangling the complexity of buyer-seller transactions.
Final Decision: The appeal was allowed, granting the plaintiff specific performance of the sale agreement.
J U D G M E N T
The suit for specific performance of Ext.A2 agreement for sale and for setting aside Ext.A9 Sale Deed was decreed by the trial Court for return of the advance sale consideration. The plaintiff is in appeal seeking a decree for specific performance.
2. Ext.A2 agreement dated 30.03.2006 is sought to be specifically enforced. As per Ext.A2, an extent of 13.19 Ares of property was agreed to be conveyed by the first defendant to the plaintiff. The total consideration fixed is ` 15 lakhs. An amount of ` 13 lakhs was paid towards advance sale consideration. The period fixed for performance was six months. The period was further extended by three months as endorsed on the reverse side of Ext.A2. In breach of the agreement the first defendant, on 27.02.2007, executed Ext.A9 Sale Deed in favour of the second defendant. It is on these allegations that the suit was filed.
3. The first defendant though did not specifically dispute the execution of Ext.A1 agreement contended that it was not intended to be acted upon. It was executed only as proof of amounts received by the first defendant from the power of attorney holder of the plaintiff in connection with certain purchases of land effected through the first defendant as mediator. It was also contended that the property was sold for valuable consideration to the second defendant.
4. The second defendant contended that he is a bona fide purchaser for value and without notice of the agreement for sale and entitled to protection under Section 19 (b) of the Specific Relief Act .
5. The trial court found the due execution of Ext.A2 agreement, that the advance sale consideration of ` 13 lakhs was paid, and also that Ext.A2 was executed intending it to be a sale agreement. However, it was held that the second defendant is a bona fide purchaser for value and without notice of the agreement and accordingly declined the relief of specific performance. The Court granted a decree for return of the advance sale consideration.
6. Heard learned counsel Sri.R.Sanjith on behalf of the appellant, Sri.V.M.Ali on behalf of the legal heirs of the first respondent and Sri.T.Krishnanunni, the learned Senior Counsel on behalf of the legal heirs of the second respondent.
7. Upon the rival contentions and arguments, the following points arise for determination:- (i) Is the evidence of PW1 the power of attorney holder of the plaintiff sufficient enough to find the “readiness and willingness” of the plaintiff mandated under Section 16 (c) of the Specific Relief Act ?
(ii) Is the finding of the trial Court that the 2nd defendant is a bonafide purchaser for value based on evidence?
(iii) Is the plaintiff entitled for a decree for specific performance?
8. Section 16 (c) of the Specific Relief Act mandates the plaintiff to aver and prove his continued readiness and willingness to perform the agreement. Readiness and willingness involves a state of mind. Plaintiff has to prove it by deposing before the Court. The evidence of a power of attorney holder cannot replace/substitute the evidence of the plaintiff. In the case at hand, only the power of attorney holder of the plaintiff has entered the witness box. His evidence is not sufficient and cannot be relied upon to find the readiness and willingness of the plaintiff, is the main contention urged by the learned Senior Counsel. In support of the arguments, he relied on the judgments in Man Kaur (Dead) by Lrs. v. Hartar Singh Sangha ( 2010 (10) SCC 512 ), H.G.Krishna Reddy and Co. v. M.M.Thimmaiah and Anr. AIR 1983 Madras 169, S.K.M. Mohammed Amanullah v. T.C.S. Ramasangu Pandian & Ors. (1993) 2 MLJ 464.
9. In Man Kaur's case supra, the Apex Court stated the law as to the competency and evidentiary value of the power of attorney holder thus:-
“12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge :
(a) An attorney holder who has signed the plaint and instituted the suit, but has no perso
