The court clarifies that subsequent conduct indicating unwillingness to perform a contract negates entitlement for specific performance, necessitating a return of advance amounts instead.

JUDGMENT

The defendant in a suit for specific performance of an agreement for sale, non-suited concurrently, has come up in the present second appeal.

2.

The brief facts necessary for the disposal of this appeal are as follows:

The original defendant had title over the plaint schedule property as per proceedings in L.R.A.I.-20519/82 of the District Collector, Palakkad. On 16.05.2008, he entered into an agreement of sale with the plaintiff for a sum of Rs.8,750/- per cent. Rs. 40,000/- was paid in advance. The Sale Deed ought to have been executed on or before 15.04.2009. There was a stipulation that the original deed will be handed over after the measurement of the property was conducted. In default, it was agreed as per the agreement that the plaintiff was entitled to sue for specific performance. On 06.01.2009, the plaintiff caused to issue a lawyer's notice. Though the lawyer's notice was received, the defendant did not reply. The defendant entered appearance and contested the suit and denied the execution of the sale agreement dated 16.05.2008 and contended that he had only availed a sum of Rs. 40,000/- as loan without any written instruments. Since he was not able to pay the amount, the plaintiff insisted on executing documents in evidence of the borrower, and hence he obtained thumb impression on blank white papers. The defendant had not affixed any thumb impression on the stamp paper. In fact, according to the defendant, the value of the property would come around to Rs. 25,000/- to Rs. 30,000/- per cent and, therefore, it is highly improbable that he would have executed the sale agreement for Rs. 8,750/- per cent. On behalf of the plaintiff, Exts. A1 to A3 documents were produced and PW1 and PW2 were examined. On behalf of the defendant, no documentary evidence was produced and DW1 was examined. The trial court, on appreciation of the rival pleadings and documentary evidence, decreed the suit allowing the plaintiff to get the Sale Deed executed on deposit of the balance sale consideration of Rs.47,500/- together with 12% quarterly compound interest from 15.04.2009 till the date of payment. Aggrieved by the judgment and decree, the defendant preferred A.S. No. 70 of 2011 which was dismissed by the Additional District Court - IV, Palakkad vide judgment dated

26.07.2017 and, hence the appeal.

3.

While the appeal was admitted to the file on 06.01.2020, this Court framed the following substantial questions of law:

i. Have not the courts below gone wrong in exercising the discretion under Section 20 of the Special Relief Act in as much as the hardship caused to the appellant would outweigh the benefit that would be derived by Respondent in the event of decreeing specific performance?

ii. Have not the courts below erred in finding Exhibit A-1 agreement for sale to be proved, in the face of the denial of execution and the failure to discharge the initial burden of proof by the Respondent to prove due execution of Exhibit A-1?

4.

Heard Sri. Rajesh Sivaramankutty, the learned Counsel appearing for the appellants and Sri. Jacob Sebastian, the learned Counsel appearing for the respondent.

5.

The learned Counsel appearing for the appellant/defendant pointed out that when the execution of the agreement has been denied by the defendant, then it was the duty of the plaintiff to prove the execution of the agreement. Having failed to prove the execution of the agreement, the trial court as well as the first appellate court, could not have decreed the suit. Still further, it is pointed out that a cursory glance at the agreement of sale would itself disprove the case of the plaintiff. Admittedly, the thumb impression varied from each page of the agreement of sale. These crucial aspects have not been considered by the courts below. In support of his contentions, he has relied on the decision of the Supreme Court in Jayakantham and Others v. Ab