IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 105 of 2000(A)
1. AALUDHEEN
... Petitioner
Vs
1. SHAVUDHEEN
... Respondent
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :16/03/2010
O R D E R
HARUN-UL-RASHID, J.
-----------------------------------
A.S.No.105 of 2000
---------------------------------
Dated this the 16th day of March, 2010
J U D G M E N T
Appellants are the supplemental defendants 3 to 9 in
O.S.No.430 of 1991 on the file of the Sub Court, Palakkad. The
original defendant died during the pendency of the suit. Suit is
filed for specific performance of sale agreement in respect of the
plaint schedule property. The trial court passed a decree for
specific performance directing the appellants to execute the sale
deed in favour of the plaintiff, in default the plaintiff is entitled to
get the sale deed executed through court. Aggrieved by the
decree and judgment the supplemental defendants 3 to 9 have
preferred the appeal. Parties are hereinafter referred to as the
plaintiff and supplemental defendants as arrayed in the suit.
2. Ext.A1 is the agreement for sale. The subject matter
of the suit is a shop room. Ext.A1 is dated 21.3.1991 executed
between the plaintiff and the deceased first defendant. The sale
consideration fixed is Rs.66,000/-. The first defendant received
Rs.6,000/- as advance amount. The last date fixed for execution
of the sale deed is 1.9.1991. In Ext.A1 it is agreed by the parties
A.S.No.105 of 2000 – A
2
that the plaintiff shall pay a sum of Rs.10,000/- on or before
1.5.1991 and the balance amount before the expiry of the last
date fixed for execution of the sale deed. The plaintiff was put in
possession of the plaint schedule property on the date of Ext.A1
agreement.
3. Plaintiff alleged that the first defendant did not accept
the payment of Rs.10,000/- before the date fixed in Ext.A1
agreement. Thereupon the plaintiff deposited the amount in
bank and the plaintiff is always ready and willing to perform his
part of contract but, the defendant was not ready to execute the
sale deed in time. Instead, he issued Ext.A3 lawyer notice on
9.6.1991 cancelling the agreement stating that the plaintiff failed
to pay Rs.10,000/- on or before 1.5.1991 as agreed in Ext.A1
agreement. Plaintiff further stated that he had also purchased
stamp papers for executing the contract.
4. Deceased first defendant in the written statement
admitted the execution of Ext.A1 and receipt of Rs.6,000/- as
advance. According to him the time is the essence of the
contract and that the plaintiff failed to pay Rs.10,000/-, on or
before 1.5.1991. Therefore, he send Ext.A3 notice dated
A.S.No.105 of 2000 – A
3
23.6.1991 cancelling the agreement. In such circumstances, the
defendant is not liable to perform his part of contract and he
prayed for dismissal of the suit.
5. The plaintiff was examined as PW1. Exts.A1 to A9
were marked on his side. Supplemental 3rd defendant was
examined as DW1. Defendants did not adduce any documentary
evidence.
6. PW1 testified before the court that he paid Rs.6,000/-
as advance and he was put in possession of the property on the
date of Ext.A1 agreement (Ext.A1 also contains recital to that
effect). He approached the first defendant with Rs.10,000/-.
But, the first defendant refused to accept the said amount and
therefore PW1 deposited the amount in the bank. He produced
Ext.A4 pass book issued from the bank. Pass book shows that he
deposited Rs.10,000/- on 13.5.1991. The court below observed
that though DW1 denied the tendering of the amount to his
father, his evidence reveals that he has no direct knowledge
about the said fact. Ext.A3 is the notice issued by the first
defendant cancelling the agreement stating several reasons.
Ext.A4 is the reply notice sent by the plaintiff. In Ext.A4 plaintiff
A.S.No.105 of 2000 – A
4
stated that the defendant has no right to cancel the agreement
and he is entitled to get 6% interest for the delayed payment by
the terms of Ext.A1 agreement. In Ext.A4 reply notice plaintiff
also requested the first defendant to give a specific date before
31.1.1991 for executing the sale deed. Ext.A5 is another letter
issued by the plaintiff requesting the defendant to appear before
the Sub Registrar Office on 28.8.1991 at 11:00 a.m. Ext.A6 is an
unserved letter send by the counsel to the first defendant on
16.8.1991. Ext.A7 is the photocopies of the stamp papers in the
name of the plaintiff. According to the plaintiff original stamp
papers were returned and obtained refund. The aforesaid facts
and circumstances and oral and documentary evidence adduced
by the plaintiff show that the plaintiff had made arrangements to
obtain the sale deed. Ext.A8 produced by the plaintiff is an
encumbrance certificate which shows that the properties are
mortgaged to Rural Housing Co-operative Society, Vadavannur
for Rs.45,000/-. That document shows that the defendant had
not cleared the liabilities on the property before 1.5.1991. The
non-clearance of liabilities also show that the defendant was not
prepared to execute the sale deed in favour of the plaintiff. The
A.S.No.105 of 2000 – A
5
court below also relied on Ext.A2 pass book which shows that
Rs.50,500/- is in deposit as on 29.8.1991. The oral testimony of
PW1 and Exts.A1 to A9 are relied on by the court below to hold
that the plaintiff had performed his part of contract and he is
entitled to get the sale deed executed by the defendant. In the
said facts and circumstances, the contentions of the appellants
that the plaintiff is not entitled to a decree for specific
performance of the contract cannot stand. I fully agree with the
findings entered by the court below.
In the result, the appeal fails and accordingly, it is
dismissed with costs.
HARUN-UL-RASHID,
JUDGE.
bkn/-
