IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 285 of 1999(A)
1. RAVEENDRAN
... Petitioner
Vs
1. P.K.RAJAMMA
... Respondent
For Petitioner :SRI.K.C.CHARLES
For Respondent :SRI.JAIJI ITTEN
Dated :03/03/2010
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.285 OF 1999
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DATED THIS THE 3RD DAY OF MARCH, 2010
JUDGMENT
Plaintiff in O.S.No.463/95 on the file of the sub Court,
Ernakulam is the appellant. The suit was filed for specific
performance. The court below declined to grant a decree for
specific performance. A decree was passed allowing the
plaintiff to realise the advance amount of Rs.10,000/- with
interest thereon. Aggrieved by the said judgment and decree to
the extent it denies the relief for specific performance, the
plaintiff has preferred this appeal. The parties hereinafter are
referred to as the plaintiff and the defendant as arrayed in the
suit.
2. Ext.A1 is the agreement for sale executed between the
plaintiff and the defendant. The defendant owns the plaint
schedule property. The extent of the plaint schedule property is 3
cents. Ext.A1 is dated 26/5/1994. The price agreed to be paid is
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Rs.60,000/-. An amount of Rs.10,000/- was received on the date
of Ext.A1 agreement as advance. The period fixed for
performance of the contract is one year from the date of Ext.A1
agreement. These facts are not disputed. It is the plaintiff’s case
that he is ready and willing to pay the balance consideration, that
in spite of her repeated demands, the defendant did not care to
execute the sale deed as per the terms and conditions stipulated in
Ext.A1 agreement. Ext.A2 is the Lawyer notice issued on
24/3/1995 requesting the defendant to fulful her part of the
agreement and to execute the sale deed. Ext.A6 is the reply
notice dated 7/4/ 1995. Exts.A2 and A4 are issued by the
respective parties within the period fixed for execution of the
agreement. In Ext.A6 reply the defendant informed the plaintiff
that she is unable to execute the sale deed in favour of the
plaintiff for the reasons stated in her notice dated 24/3/1995,
which is marked as Ext.A4. In Ext.A4 the defendant informed
the plaintiff that some items of properties including the disputed
property were mortgaged to the bank for availing a loan in the
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name of her husband, that the bank will not release the original
documents until the entire amounts due to the bank are paid and
therefore it has become impossible to sell the property. It is
further informed by the defendant that she wanted the agreement
to be cancelled and expressed her willingness to return the
advance amount. Ext.A6 reply notice issued by the defendant
would show that the defendant was not prepared to execute the
sale deed as demanded by the plaintiff. Exts.A4 and A6 referred
supra are notices sent by the defendant before the expiry of the
period fixed by the parties for execution of the sale deed. Ext.A7
is the Lawyer notice dated 13/4/95 issued by the plaintiff to the
defendant in which it is stated that the conduct of the defendant
in not willing to execute the sale deed is unfair, that the reasons
stated are untrue and that the plaintiff is ready and willing to
perform of the terms and conditions of the agreement and
requested the defendant to execute the sale deed as agreed.
3. In Ext.A4 notice and Ext.A6 reply the only reason stated
is that since the property is mortgaged to the a bank, she is unable
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to execute the sale deed. In the written statement a contrary stand
is taken. It is contended that page No.2 and the last page of
Ext.A1 agreement are fabricated, that the plaintiff replaced page
No.2 and that the signature of one of the witnesses seen in the
last page of the agreement is not genuine. Velayudhan Pillai is
one of the witnesses to Ext.A1 agreement. It is also alleged that
in the 2nd page of the agreement the period is stated as one year,
in fact the agreed period of six months. The defendant admitted
the execution of Ext.A1 agreement and the receipt of Rs.10,000/-
as advance. The only contention raised before the court below is
that two pages of Ext.A1 agreement are not genuine and are
fabricated.
4. In Ext.A1 the parties agreed to execute the sale deed
within the time prescribed therein. It is stated that there is no
liability outstanding in the property and further stipulated that if
for any reason it is found that any liability is outstanding, that
will be cleared by the defendant before the execution of the sale
deed.
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5. The evidence in the case consists of the oral evidence of
PW1, DWs.1 and 2 and Exts.A1 to A11(a). No documentary
evidence was adduced by the defendant. The court below
examined the issues in the light of the contentions raised in the
written statement. The court below specifically examined
whether the period fixed in Ext.A1agreement is one year or six
months and whether the signature of the witness, Velayudhan
Pillai is a fabircated one as alleged in the written statement. The
court below, after examining the oral evidence of the parties and
the documents produced by the plaintiff held that there is no
reason to disbelieve the evidence of PW1 and that the period
fixed for execution of the sale deed is one year. The court below
held that the contention of the defendant that the period fixed for
execution of the sale deed is six months is false. The further
question examined by the court below is whether the signature of
Velayudhan Pillai in the last page of Ext.A1 is a fabricated one.
After discussing the evidence and the attendant circumstances,
the court below held that the evidence of Velayudhan Pillai, who
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was examined as DW2, shows that the signature in Ext.A1 is not
fabricated as contended in the written statement. Thus, the
contentions raised by the defendant in the suit are found against.
The court below thereafter examined the terms of Ext.A1
agreement, Ext.A2 letter, Ext.A4 lawyer notice, Ext.A6 and
Ext.A7 reply notices. The court below on the basis of the
pleadings of the parties and the oral and documentary evidence
on record, found that the plaintiff was ready to pay the balance
sale consideration; but the defendant was not ready to execute the
sale deed in his favour. Following the decision reported in De-
Smet (India) Private Ltd. v. B.P. Industrial Corporlation (P)
Ltd. (AIR 1980 Allahabad 253, the court below, after finding
that the breach of agreement is committed by the defendant,
decreed the suit holding that the plaintiff is entitled to get back
the advance amount with interest at the rate of 12% per annum
and the costs of the suit. The court below did not go into the
question whether the plaintiff is entitled to a decree for specific
performance. In fact, the relief sought for in the plaint is to pass a
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decree for specific performance of the contract.
6. The learned counsel for the appellant brought to this
Court’s attention the decision of the Apex Court in Boothalinga
Agencies v. V.T.C. Poriaswami Nadar (AIR 1969 SC 110).
Paragraph 10 of the said decision reads as follows:
“The doctrine of frustration of contract is really an
aspect or part of the law of discharge of contract
by reason of supervening impossibility or
illegality of the act agreed to be done and hence
comes within the purview of Section 56 of the
Indian contract Act. It should be noticed that
Section 56 lays down a rule of positive law and
does not leave the matter to be determined
according to the intention of the parties.”
7. The Apex Court further held that the principle of
this case applies to the Indian law and that Section 56 of the
Indian Contract Act cannot apply to a case of “self-induced
frustration.” In other words, the doctrine of frustration of
contract cannot apply where the event which is alleged to have
frustrated the contract arises from the act or election of a party.
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8. The learned counsel also relied on the decision reported
in Prakash Chandra v. Angadlal and others (AIR 1979 SC
1241). The Apex Court laid down the the principles governing
the grant of a decree for specific performance as an agreement for
sale. The Apex Court held that the ordinary rule is that specific
performance should be granted. It ought to be denied only when
equitable considerations point to its refusal and the
circumstances show that damages would constitute an adequate
relief.
9. The facts I have discussed above would point out that
the plaintiff, after paying the part of the sale consideration, has
repeatedly demanded the defendant to execute the sale deed. The
defendant in Ext.A4 lawyer notice and Ext.A6 reply notice
replied that she is not prepared to execute the sale deed. In the
written statement strange contention was raised stating that some
of the pages of Ext.A1 are fabricated. Even before expiry of the
period of time fixed for execution of the sale deed, the defendant
has determined not to execute the sale deed. The reasons stated
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in Exts.A4 and A6 are not the reasons which can be put forward
for defeating the rights of the plaintiff. In the circumstances, the
court below ought to have decreed the suit as prayed for in the
plaint. The relief prayed for in the plaint is for a decree for
specific performance of the contract. I do not find any reason to
reject the claim of the plaintiff for a decree for specific
performance. The court below wrongly followed a decision
reported in De-Smet (India) Pvt. Ltd’s case (AIR 1980
Allahabad 253). The court below did not even frame necessary
issue as to whether the plaintiff is entitled to a decree for specific
performance. The denial of decree for specific performance is
unjust and unfair in the facts and circumstances of the case.
In the result, the decree and judgment passed by the court
below are modified. A decree for specific performance of Ext.A1
agreement is passed directing the defendant to execute sale deed
in respect of the plaint schedule property in favour of the plaintiff
and to put the plaintiff in possession of the plaint schedule
property on the date of execution of the sale deed, after receiving
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the balance sale consideration, failing which the plaintiff shall
approach the court below for execution of the sale deed through
court. The time for payment of the balance sale consideration is
fixed as three months from today.
Appeal is allowed. The plaintiff is entitled to costs through
out.
HA RUN-UL-RASHID,
JUDGE.
kcv.
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HARUN-UL-RASHID,J.
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A.S.NO.285 OF 1999
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JUDGMENT
3rd March, 2010