IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 536 of 1996()
1. D.PONNAMMA
... Petitioner
Vs
1. KRISHNAN NAIR
... Respondent
For Petitioner :SRI.R.RAJASEKHARAN PILLAI
For Respondent :SRI.P.SUKUMARAN NAYAR(SR.)
The Hon'ble MR. Justice P.BHAVADASAN
Dated :28/10/2009
O R D E R
P. BHAVADASAN, J.
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S.A. No. 536 of 1996
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Dated this the 28th day of October, 2009.
JUDGMENT
The defendant in O.S. No.149 of 1989 before the
Munsiff’s Court, Kayamkulam, who sufferd a decree for
specific performance at the hands of the first appellate court is
the appellant. The parties and facts are hereinafter referred to
as they were available before the trial court.
2. The suit was based on Ext.A1 document, an
agreement for sale, by which, according to the plaintiff, the
defendant undertook to sell an extent of 14 cents of land with a
building therein for a sum of Rs.9,600/-. Even though the
entire amount was paid, the defendant did not execute the sale
deed inspite of repeated demands. Hence the suit.
3. The defendant resisted the suit. She denied the
execution of the agreement as alleged in the plaint. She
pointed out that the sale consideration shown is too low and
the price of the property at the relevant time was Rs.10,000/-
S.A. 536/1996. 2
per cent. Ext.A1 document was executed by the defendant in a
chitty transaction and there was no agreement to sell her property.
She also denied execution of the agreement. On the basis of the
above contention, she prayed for dismissal of the suit.
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of P.Ws. 1
and 2 and Exts.A1 marked on the side of the plaintiff. The
defendant examined herself as D.W.1 and Exts.B1 and B2 marked.
The trial court found that Ext.A1 is a genuine document and infact
executed by the defendant. However, the trial court came to the
conclusion that the agreement for sale as claimed by the plaintiff
was not proved and there was a lot of suspicion about the
transaction. Holding so, the suit was dismissed. The plaintiff
carried the matter in appeal as A.S. 129 of 1992 before the
Additional District Court, Mavelikkara. By judgment dated
1.12.1995 the first appellate court granted specific performance in
favour of the plaintiff and the suit was decreed. The said judgment
S.A. 536/1996. 3
and decree are assailed in this appeal.
5. At the time of admission, notice was issued on the
following questions of law:
“(i) Can an Agreement which is perfectly legal going
by the provisions of Section 10 of the Contract Act be
enforced even if, it satisfy the conditions and
circumstances provided under Sub Section (2)(a) to (2)
(c) of Section 20 of the Specific Relief Act.
(ii) The substantial variation of the evidence from the
pleadings whether would entitle the plaintiff for a
decree of specific performance?
(iii) The non-prosecution of Ext.B2 suit notice whether
would accentuate the defendant’s case that Ext.A1 is
only to secure the debt?
(iv) Do the period of two days to performance stated in
Ext.A1 and further extension of period for 10 days at
the instance of the husband of the defendant, would
create cloud on the genuineness of Ext.A1.”
6. The question that arises for consideration is whether
the claim made by the appellant can be allowed.
S.A. 536/1996. 4
7. Both the courts below have concurrently found that
Ext.A1 was infact executed by the defendant. Being a question of
fact, the said finding does not call for any interference at all.
8. The trial court came to the conclusion that there is
no evidence to prove that the sum of Rs.9,600/- mentioned in the
document has been paid by the plaintiff. The trial court also took
note of the fact that the claim of the plaintiff was that the sale
consideration was actually Rs.50,000/-, but in order to avoid stamp
duty the sale consideration was shown as Rs.9,600/- in Ext.A1
document. The court below was of the view that the claim of the
defendant that Ext.A1 was executed as a security for the chitty
transaction is more acceptable. The appellate court on the other
hand found that once the document is found to be genuine and in
fact executed by the defendant, there is no reason to deny specific
performance to the plaintiff.
9. In this appeal, learned counsel appearing for the
appellant mainly relied on Section 20 of the Specific Relief Act.
S.A. 536/1996. 5
According to the learned counsel, even assuming that Ext.A1 is a
genuine document as held by the court below, the facts of the case
are such that the lower court should not have granted specific
performance in favour of the plaintiff. Learned counsel pointed
out that on a reading of the judgment of the trial court, it could be
seen that the trial court has analysed the matter in detail and has
come to a just conclusion. Pointing out that even if the document
is held to be genuine, all that the appellate court should have to do
was to direct the appellant to return the amount mentioned in
Ext.A1 document.
10. Learned counsel appearing for the respondent on
the other hand pointed out that the defendant has gone to the extent
of denying the document itself. Attention of this court was drawn
to the fact that at the time of evidence, she denied her signature in
the summons and in the written statement as well. In the light of
these facts, according to learned counsel no discretion needs to be
exercised in favour of the defendant.
S.A. 536/1996. 6
11. Section 20 of the specific Relief Act reads as
follows:
“20. Discretion as to decreeing specific performance.-
(1)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; but the
discretion of the Court is not arbitrary but sound and
reasonable, guided by judicial principles and capable
of correction by a court of appeal
(2) The following are cases in which the Court may
properly exercise discretion not to decree specific
performance-
(a) where the terms of the contract or the conduct
of the parties at the time of entering into the contract or
the other circumstances under which the contract was
entered into are such that the contract, though not
voidable, gives the plaintiff n unfair advantage over he
defendant; or
(b) where the performance of the contract would
involve some hardship on the defendant which he did
not foresee, whereas its non-performance would involve
no such hardship on the plaintiff;
S.A. 536/1996. 7
(c) where the defendant entered into the contract
under circumstances which though not rendering the
contract voidable, makes it inequitable to enforce
specific performance.
Explanation .1.- Mere inadequacy of consideration, or
the mere fact that the contract is onerous to the
defendant or improvident in its nature, shall not be
deemed to constitute an unfair advantage within the
meaning of clause (a) or hardship within the meaning
of clause (b).
Explanation 2.- The question whether the performance
of a contract would involve hardship on the defendant
within the meaning of clause (b) shall, except in cases
where the hardship has resulted from any act of the
plaintiff, subsequent to the contract, be determined with
reference to the circumstances existing at the time of
the contract.
(3)The Court may properly exercise discretion to
decree specific performance in any case where the
plaintiff has done substantial acts or suffered losses in
consequence of a contract capable of specific
performance.
(4) The Court shall not refuse to any party specific
S.A. 536/1996. 8
performance of a contract merely on the ground that
the contract is not enforceable at the instance of the
other party.”
12. It is well settled that specific relief cannot be
claimed as a matter of right. However, the discretion has to be
exercised judiciously. There must be convincing reasons for
exercising discretion. It is not possible to enumerate factors, which
can be taken into consideration for exercising the discretion. It
depends upon the facts of each case. The Section does give some
indication regarding the circumstances under which the discretion
may be exercised. But they are not exhaustive. Merely because
the price of a property has gone up or because the sale
consideration is inadequate by themselves are not grounds to deny
relief to the plaintiff. However, if on a consideration of the facts, it
is found that the plaintiff had derived undue advantage of the
situation as emerged from the evidence, the court should exercise
its discretion in favour of the defendant.
S.A. 536/1996. 9
13. It will not be out of place to refer to the evidence of
the plaintiff. According to him, the sale consideration was
Rs.50,000/-. But the amount shown in Ext.A1 is Rs.9,600/-, to
save stamp duty. The defendant had pointed out that the document
was taken as a security for a chitty transaction. There is nothing to
indicate as rightly pointed out by the court below that any amount
has infact been paid by the plaintiff. The plaintiff had admitted
that there was a chitty transaction between the parties, he has also
pointed out that the amount due to him was not received from the
chitty transaction. It is significant to notice that according to
P.W.1 it was the defendant who had offered the property for sale.
He claims that he offered a sum of Rs.40,000/- for the property, but
the defendant refused to give the property below Rs.50,000/-.
14. What is interesting is that the agreement was
entered into on 16.4.1989, and the document was to be executed on
or before 18.4.1989.
S.A. 536/1996. 10
15. The defendant has also produced Exts.B1 and B2,
which would indicate that there was infact a chitty transaction
between the parties. She would also deny that an amount of
Rs.40,000/- was paid in two instalments. It is significant to notice
that the plaintiff admits that no amount was paid at the time of sale
agreement and he claims that the entire amount has been paid
earlier.
16. A reading of the evidence of P.W.1 is sufficient to
show that the transaction claimed by the plaintiff is not above
doubt. Whatever that be, it has been found by both the courts
below that Ext.A1 document was infact executed by the defendant.
17. One cannot omit to note the fact that the extent
involved is 14 cents with a building therein. The defendant claims
to be residing there with his family. Considering the various
aspects, this appears to be a proper case where the discretion
available under Section 20 should be exercised in favour of the
defendant.
S.A. 536/1996. 11
In the result, the judgment and decree of the first
appellate court in A.S.129 of 1992 granting specific relief to the
plaintiff is set aside and a decree is passed on the following terms:
i) The plaintiff is entitled to realise a sum of Rs.9,600/-
with 6% interest from the date of suit till date of realisation
personally from the defendant and from her assets.
ii) The plaintiff is entitled to costs throughout.
P. BHAVADASAN,
JUDGE
sb.
S.A. 536/1996. 12
P. BHAVADASAN, J.
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S.A. No. 536 of 1996
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JUDGMENT
28.10.2009.