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2022 Supreme(Online)(KER) 64035
HIGH COURT OF KERALA
M.R.ANITHA, J
SADANANDAN – Appellant
Versus
K.CHANDRAN – Respondent
RFA 719 2014
SMT.GIRIJA K GOPAL T.JAGAL BOSE GIRIJA. K. GOPAL
Specific performance cannot be granted for an incomplete contract lacking necessary signatures, as per the provisions of the Specific Relief Act.
Headnote:
Specific Performance - Contract Law - Specific Relief Act, 1963, Sections 12, 17 - The court held that due to the inseparability of the contract and lack of signatures from all parties, specific performance could not be granted for item No.1, affirming the trial court's decision.
Fact of the Case:
The plaintiff filed a suit for specific performance alleging an agreement to purchase certain properties, but defendants contended that the contract was unenforceable due to the requirement of signatures from all owners and the inseparability of the contract's terms.
Finding of the Court:
The court found that the agreement was incomplete as it lacked signatures from all parties, rendering it unenforceable. It also affirmed the trial court's decision to not grant specific performance.
Issues: Whether the plaintiff is entitled to specific performance of item No.1 of the agreement despite the absence of signatures from all property owners and the inseparability of the contract's terms.
Ratio Decidendi: Section 12 of the Specific Relief Act prohibits specific performance for incomplete contracts that lack signatures from all requisite parties; thus, the agreement could not be enforced for item No.1.
Final Decision: The appeal was dismissed, affirming the trial court's refusal for specific performance.
JUDGMENT
The appellant is the plaintiff in O.S.No.535 of 2010 on the file of Principal Subordinate Judge's Court, Palakkad. Suit is one for specific performance of contract. (Parties will hereafter be referred as per their status before the trial court.
2. It is alleged that plaint schedule item No.1 property belongs to defendants 1 and 2 and item No.2 belong jointly to all the defendants. Plaintiff agreed to purchase and defendant agreed to sell plaint item No.1 of plaint schedule property for a value of Rs.1,875/- per cent and item No.2 for a value of Rs.5,600/- per cent. An agreement to that effect was executed on 30.05.2008. Plaintiff paid Rs.1,50,000/- on that day towards advance sale consideration to defendants 1 and 2. Defendants 1 and 2 signed the agreement for and on behalf of all the other defendants. Plaintiff was always ready and willing to perform his part of the contract but defendants evaded the performance and finally plaintiff issued lawyer notice to defendants 1 and 2 for which a reply was sent raising untenable contentions. Hence the suit has been filed for specific performance of the contract and in the alternative for return of advance amount.
3. Pending the suit, second defendant died and his legal heirs were impleaded as supplemental defendants 9 to 10. Defendants 3 to 8 and 11 remained ex parte. Defendants 1, 9 and 10 filed joint written statement admitting that plaint item No.1 belonged to defendants 1 and 2. It is not admitted that item No.2 belonged to all the defendants. Execution of the agreement and advance of Rs.1,50,000/- given are admitted. It is denied that defendants 1 and 2 executed the agreement on behalf of all other defendants. Time of 6 months stipulated in the agreement was the essence of the contract. Plaintiff was never ready and willing to perform his part of the contract and was not able to raise balance sale consideration. Defendants 1 and 2 sustained huge loss and damage due to the failure of the plaintiff in performing his part in time. So, they are not liable to execute the sale deed or return of advance amount.
4. Plaintiff was examined as PW1 and Exts.A1 to A5 were marked from the side of the plaintiff. DW1 examined and Ext.D1 marked on behalf of defendants 1, 9 and 10. Thereafter, trial court on analysing the evidence adduced from both sides, found that Ext.A1 agreement for sale has been signed by first and second defendants alone, but item No.2 belongs to all defendants. Defendant Nos.3 to 8 have not signed in Ext.A1 agreement. Terms with respect to item Nos.1 and 2 are not separable and advance amount also has been paid in common. Hence trial court was of the view that inseparability of Ext.A1 and its impossibility with respect to item No.2 makes the contract unenforceable with respect to item No.1 also and thereby refused specific performance. Against which the plaintiff approaches this Court in this Regular First Appeal.
5. Notice was issued to the respondent. Adv.Smt.Girija K.Gopal appears for the respondents. Lower court records were called for and perused. Heard both sides.
6. According to the learned counsel for the appellant/plaintiff, plaintiff has confined the specific performance of contract with respect to item No.1 property alone which is admittedly owned by defendants 1 and 2 who signed the document and hence the trial court ought to have ordered specific performance of the contract with respect to item No.1. It is also his contention that 90% of the sale consideration has been given by him on the date of agreement itself (that is Rs.1,50,000/-) and ordinary rule is that specific performance should be granted and it ought to be denied only when equitable consideration point to its refusal and the circumstances of this case, according to him, would clearly show that on the date of agreement itself the possession was handed over to the plaintiff and he is in enjoyment and major part of the sale amount has been advanced and item No.1 property is clearly separable from
