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HIGH COURT OF KERALA
P. B. Suresh Kumar, C.S. Sudha, JJ
MUHAMMED KUTTY – Appellant
Versus
DHANYA – Respondent
RFA 62 2014
Specific Performance - Sale Agreement - Specific Relief Act, 1963 - Sections 16(c), 14(1)(a) - The court emphasized the necessity for the plaintiff to demonstrate readiness and willingness to perform the contract, rejecting the claim for specific performance due to plaintiff's inability to justify timely payment.
Fact of the Case:
The plaintiff sought specific performance of a sale agreement for property, alleging readiness to pay. Defendants contended that he failed to pay within the stipulated time and claimed advance was forfeited.
Finding of the Court:
The court found that although the defendants did not comply with their obligation to prepare a property sketch, the plaintiff failed to prove readiness and willingness to pay, and thus denied specific performance.
Issues: Whether the plaintiff was ready and willing to fulfill his obligations under the sale agreement and whether the advance could be forfeited.
Ratio Decidendi: The plaintiff's readiness to pay must be assessed in light of timely action and conduct, which the court determined was insufficient in this case.
Final Decision: R.F.A.No.62 of 2014 is dismissed; R.F.A.No.138 of 2014 is allowed in part, modifying the decree for costs.
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from O.S.No.507 of 2012 on the files of the Sub Court, Karunagappally. The said suit was one for specific performance of an agreement for sale. R.F.A.No.62 of 2014 is by the plaintiff and R.F.A.No.138 of 2014 is by the defendants in the suit.
2. The first defendant owns an item of property in Sy. No.556/09 of Sooranad South Village and she is running an aided school therein. The second defendant is the mother and power of attorney holder of the first defendant. On 17.01.2009, the first defendant agreed to sell 91 cents out of the said property with the right to run the school to the plaintiff for a consideration of Rs.55 lakhs and received a sum of Rs.10 lakhs from him on that day by way of advance sale consideration. As per the terms of the agreement, the plaintiff ought to have purchased the land after paying the balance sale consideration on or before 30.04.2009. It is provided in the agreement that the first defendant will measure the property and prepare a sketch carving out the 91 cents of property and the school building to be transferred to the plaintiff for appending the same to the document to be executed in terms of the agreement. The suit was instituted alleging that though the plaintiff was ready and willing to pay the balance sale consideration and obtain sale deed in respect of the property covered by the agreement, the defendants refused to execute the document in respect of the property for one or other reason. The prayer in the suit, therefore, was for specific performance of the agreement for sale in respect of the plaint schedule property covered by the agreement. There was an alternative prayer in the suit for return of the advance sale consideration.
3. The second defendant filed a written statement on her behalf and also on behalf of the first defendant contending mainly that although the property was measured and a plan of the plaint schedule property was prepared with notice to the plaintiff on 25.02.2009, the plaintiff did not come forward with the balance sale consideration within the time stipulated or thereafter, and it is due to the said reason that the plaint schedule property could not be transferred to the plaintiff in terms of the agreement. The defendants therefore prayed for dismissal of the suit. As regards the alternative prayer, the stand taken by the defendants in the written statement was that insofar as the plaintiff did not pay the balance sale consideration within the time stipulated in the agreement, the advance sale consideration is liable to be forfeited and the plaintiff is therefore, not entitled to the alternative prayer as well.
4. The plaintiff gave evidence as PW1. Two other witnesses were also examined on the side of the plaintiff as PW2 and PW3. Exts.A1 to A14 were the documents proved on the side of the plaintiff. On the side of the defendants, the second defendant gave evidence as DW1. DW2 is a witness examined on the side of the defendants. Exts.B1 to B4 were the documents proved on the side of the defendants. 5. Among the documents proved on the side of the plaintiff, Ext.A1 is the agreement for sale, Ext.A4 is the lawyer notice caused to be issued by the plaintiff to the second defendant calling upon her to accept the balance sale consideration and transfer the plaint schedule property to the plaintiff and Ext.A5 is the reply notice caused to be sent by the second defendant to Ext.A4 lawyer notice. Among the documents proved on the side of the defendants, Ext.B2(a) is the sketch of the plaint schedule property allegedly prepared by DW2 at the instance of the second defendant in furtherance to the agreement for sale.
6. Although the court below found that the defendants have not prepared the sketch of the plaint schedule property as provided for in the agreement with notice to the plaintiff, the suit was dismissed holding that the plaintiff was not ready and willing to pay the balance sale consideration within the time sti
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