IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 328 of 2001()
1. AMMINI
... Petitioner
Vs
1. HARIGOVINDAN
... Respondent
For Petitioner :SRI.P.G.PARAMESWARA PANICKER (SR.)
For Respondent :SRI.E.R.VENKATESWARAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :15/06/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 328 OF 2001
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Dated this the 15th day of June, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the Subordinate
Judge, Ottapalam in O.S.174/94. The suit is
one for specific performance of a contract
with damages. It is the case of the
plaintiff that the defendant and plaintiff
had entered into an agreement under Ext.A1
whereby the defendant has agreed to sell the
property to the plaintiff for a consideration
of Rs.5,000/- per cent and towards the
purchase price had paid an amount of
Rs.2,000/-. It is also stated that as usual
the seller has to satisfy the buyer regarding
his title etc. and to register the document.
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It is contended by the plaintiff that the
property was measured and there was an
agreement between the parties that on 27.4.94
the document can be registered. But to the
utter dismay of the plaintiff the defendant
had demolished the stone construction around
the well and thereby had caused damages of
Rs.15,000/-. It is submitted that the
plaintiff is always ready and willing to
perform his part of his contract and hence
the suit.
2. On the other hand the defendant would
contend it is true that there was an
agreement to sell and the defendant was
always ready and willing to perform his part
of his contract provided the plaintiff was
prepared to pay the amount for the actual
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extent available as agreed to between the
parties. The plaintiff did not respond to
the same and therefore he is not prepared to
perform his part of his contract.
3. On a consideration of the entire
materials the court below granted a decree
for realisation of the amount and damages but
refused to grant a decree for specific
performance of the contract. It is against
that decision the plaintiff has come up in
appeal with a prayer to grant a decree for
specific performance.
4. Under S.20 of the Specific Relief Act
the jurisdiction to decree specific
performance is discretionary and the Court is
not bound to grant such relief merely because
it is lawful to do so. There is also a
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caution that the discretion of the Court is
not to be exercised arbitrarily but should be
on sound and reasonable judicial principles.
The Hon’ble Supreme Court in the decision
reported in Bal Krishna v. Bhagwan Das 2008
(12) SCC page 145 in paragraph 14 has laid
down the principles to be followed.
“It is also settled by various
decisions of this Court that by
virtue of S.20 of the Act, the
relief for specific performance
lies in the discretion of the
Court and the Court is not bound
to grant such relief merely
because it is lawful to do so.
The exercise of the discretion
to order specific performance
would require the Court to
satisfy itself that the
circumstances are such that it
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is equitable to grant decree for
specific performance of the
contract. While exercising the
discretion, the Court would take
into consideration the
circumstances of the case, the
conduct of the parties, and
their respective interests under
the contract. No specific
performance of a contract,
though it is not vitiated by
fraud or mis-representation, can
be granted if it would give an
unfair advantage to the
plaintiff and where the
performance of the contract
would involve some hardship on
the defendant, which he did not
foresee.”
5. The intention of the parties and the
conduct of the parties are absolutely
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relevant in deciding the question whether a
discretionary relief has to be exercised in
favour of the plaintiff. A reading of Ext.A1
agreement would convincingly establish that
the parties have entered into an agreement
whereby it is decided to purchase the
property available at the rate of Rs.5,000/-
per cent and it is towards the same an
advance amount of Rs.2,000/- is paid. It is
also stated in the agreement that if the
defendant is committing the breach of the
contract the plaintiff is entitled to get
refund of the advance amount paid plus
another Rs.2,000/- as damages. Really
speaking there is no terms in the agreement
regarding the enforceability of the contract.
But S.20(4) of the Specific Relief Act
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specifically states that just because there
is no such clause specific performance need
not be declined. So the main criteria is
regarding the other aspects mentioned. The
non-inclusion of a clause may be of some
relevance in determining the intention of the
parties. The plaintiff has never been put
into possession of the property. According
to the plaintiff the parties went to measure
the property and found the extent and it was
decided on 27.4.94 to have the document
registered. But according to him the
defendant immediately had committed breach by
demolishing the stone construction around the
well and had also lowered the land. So he
had sent a lawyer notice for the same also
with the prayer for specific performance of
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the contract. The defendant had denied the
demolition of the wall as well as the other
allegations and had categorically stated in
the reply notice that if the plaintiff is
prepared to give the value of the land
available he has no objection in executing
the document. This reply was sent on 2.5.94
and it is produced by the plaintiff himself.
But we do not know for the reasons best known
to the plaintiff, instead of getting ready
for the execution of the document on payment
of balance consideration he institutes a suit
for specific performance on 30.5.94 with a
prayer for damages. So it has to be stated
that the plaintiff was not totally ready and
willing to perform his part of his contract
but he wanted some thing more in the form of
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damages. It has been spoken to by the
defendant that the intention to sell the
property was to raise funds to treat his son
who was seriously ailing and that child died
on 6.7.94(proved by Ext.B1) and thereafter
the necessity had vanished to sell the
property. When a property is sought to be
sold for a specific purpose and there was an
explicit declaration to the effect that the
defendant was prepared to execute the
document in favour of the plaintiff as
stipulated in the agreement it was the
imperative duty of the plaintiff to comply
with the same and not to rush to the Court
for specific performance of the contract.
Since the document was not executed, the
balance consideration was not paid and the
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purpose for which the property was agreed to
be sold vanished on the death of the son on
6.7.94. So it has to be stated that the
plaintiff by his conduct wanted to have
unfair advantage and had by his conduct put
the defendant into hardship and his further
conduct that he was no more serious about
getting the document executed within the
stipulated time etc. will show that the
judicial discretion cannot be used in favour
of the plaintiff for granting a decree for
specific performance. The trial court has
considered those aspects and had refused to
grant a decree for specific performance but
has ordered refund of the advance amount with
damages of Rs.2,000/- as per the statement in
Ext.A1. Therefore I do not find any merit in
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this appeal and therefore the same is
dismissed but under the circumstances without
any order as to costs.
M.N. KRISHNAN, JUDGE.
ul/-
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M.N. KRISHNAN, J.
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A.S. No. 328 OF 2001
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J U D G M E N T
15th June, 2010.