IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10138 of 2010(O)
1. M/S. CAPVEST WEALTH MANAGEMENT SERVICES
... Petitioner
Vs
1. MR.K.X. THOMMI,
... Respondent
For Petitioner :SRI.S.R.DAYANANDA PRABHU
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :31/03/2010
O R D E R
P.BHAVADASAN, J.
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WP(C) No.10138 of 2010-O
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Dated 31st March 2010
Judgment
In this Writ Petition filed under Article 227 of the
Constitution of India, the petitioner challenges Ext.P6 order
passed by the Sub Court, Ernakulam, whereby the
application filed by the petitioner for issuance of a
commission was dismissed by the said Court.
2. The petitioner seems to have entered into an
agreement for sale with the defendant, the terms of which
were reduced into writing. The details of the agreements
are given in the Petition. It is alleged that the defendant
defaulted in performing his part of the agreement and the
contract was breached. It is also pointed out that at the
request of the defendant, the period of execution of the
sale deed was extended from 01.06.2007 to 13.04.2007.
Again, it was extended till 25.06.2007. It is alleged that the
defendant had not executed a sale deed. It is admitted by
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the petitioner that there was a measurement of the
property, during the third week of July 2007 and the area
measured was only 21.600 cents i.e., 9.600 cents in
Survey No.504/03. 6 cents in Survey No.484 and 6 cents in
Survey No.488/1. According to the petitioner, the
respondent falsely represented that the measured portion
of the property is water logged and therefore, it cannot be
measured and sold. He would say that the measurement
was done during rain. The further allegation is that the
defendant did not furnish any of the documents such as the
sketch prepared by the Village Officer, tax receipts,
original title deeds etc. The petitioner claimed that he was
ready and willing to perform his part of the agreement and
it was due to the fault on the part of the defendant that the
sale deed could not be executed. The entire sale
consideration was ready with him for payment.
3. The petitioner wanted the properties to be
measured and prayed for issuance of a commission. The
Court below rejected the same holding that if the decree for
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specific performance is granted, the petitioner can then file
an application for measurement under the terms, if any
agreed.
4. The learned counsel appearing for the
petitioner pointed out that the order is clearly unsustainable
both on facts and in law. The suit was one for specific
performance and it is absolutely necessary that before a
decree is passed, the property involved is properly
identified. Even though there had been a measurement, it
could not be accepted. The petitioner submitted that he
was ready and willing to take the commission forthwith for
measuring the property.
5. The learned counsel appearing for the
respondent pointed out that the measurement of the
property is necessary only after the decree is passed. Time
is an essence of the contract. It is also pointed out that the
property was measured and the attempt of the petitioner is
to simply drag on the proceedings. It is further pointed out
that on an earlier occasion, when the suit was listed for
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trial, the petitioner moved an application for commission,
which was dismissed. This clearly shows that the attempt
of the petitioner is to drag on the proceedings under one
pretext or the other.
6. Even going by the terms of the agreement,
the property is to be measured. The petitioner has a case
that even though the property was once measured, that
was not properly done and that was done during a rainy
season when the property was water logged. Therefore, it
could not be said that the measurement is not necessary.
Moreover, the finding of the Court below that if a decree for
specific performance is granted, then the measurement
can be made, is totally unsustainable. Identification and
measurement of a property should be effected before a
decree is passed. In other words, a decree can be granted
only in respect of an identified property. The question as to
who committed breach, is to be determined during trial.
That has no bearing on the identity of the property. Going
by the terms of the agreement, the price fixed is Rs.3 lakhs
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per cent for the actual measured area. It is, therefore, very
evident that even going by the agreement, the identity and
extent of the property had to be established. It is in this
context that the petition will have to be viewed. One fails to
understand as to what objection the defendant can have in
measuring the property so as to identify and ascertain the
extent of property which is the subject matter of the suit.
Objection is mainly taken regarding the merits of the case,
which is to be determined at the time of trial. Going by the
terms of the agreement, it is felt that the prayer made by
the petitioner is only just and reasonable. In the result, this
Petition is allowed. The impugned order is set aside and IA
No.3390/05 is allowed. The lower Court shall issue a
Commission with necessary directions.
P.BHAVADASAN, JUDGE
sta
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