IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 364 of 2000()
1. MUMTHAZ
... Petitioner
Vs
1. C.K.BHASKARAN
... Respondent
For Petitioner :SRI.K.MOHANA KANNAN
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/07/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. No. 364 OF 2000
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DATED THIS, THE 27TH DAY OF JULY, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and decree of the
Subordinate Judge’s Court, Palakkad in O.S. 341 of 1994. The suit is one
for specific performance of an agreement for sale of 8 cents of property and
the trial court had granted a decree in favour of the plaintiff. It is against
that decision, the defendant has come up in appeal.
2. Heard the senior counsel for the appellant as well as the
respondent. The brief facts necessary for the disposal of the appeal are
stated as follows: The plaintiff and defendant had entered into an agreement
on 18.3.1994 with a stipulation that the defendant will sell 8 cents of
property to the plaintiff and towards sale consideration an advance amount
of Rs. 10,000/- was paid. As per the stipulations in the agreement, the
document was to be executed on or before 18.6.1994. There was also a
provision in the agreement, for the purpose of enforcing the agreement as
well as in case of breach committed by the plaintiff, to forfeit the advance
paid and recover damages as well. According to the plaintiff, on so many
days in June, he had contacted the defendant to hand over the document for
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the purpose of preparation and registration of document and ultimately
when he went on 17.6.1994, the house was found locked and thereafter the
he issued a telegram expressing his readiness and willingness to perform his
part of the contract. The defendant did not turn up and therefore, the suit
was instituted for specific performance.
3. On the other hand, the defendant would contend that an agreement
has been entered into, but breach has been committed by the plaintiff, that
the plaintiff was never prepared to perform his part of the contract, he was
not having consideration to be paid for the transaction and therefore, in spite
of repeated request as the agreement was not performed, she had issued a
lawyer notice on 18.6.1994 regarding the breach committed by the plaintiff
and since he had committed breach he is not entitled for specific
performance. In the lower court, PW.1 and DW.1 were examined. Exts.
A1 to A3 and B1 to B6 were marked. On an analysis of th evidence, the
court below granted a decree in favour of the plaintiff. It is against that
decision, the defendant has come up appeal.
4. The learned senior counsel for the appellant would contend that
the conduct of the plaintiff would establish that he has committed the breach
of contract. Th defendant had issued a notice on 18.6.1994 itself regarding
the breach committed by the plaintiff and therefore, it is submitted that the
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plaintiff is not entitled to the discretionary relief of specific performance of
the contract. The facts in this case are really interesting in nature because
the parties are competing among themselves to show that he has been in a
position to perform his part of the contract. It has to be essentially held that
in a contract for sale of immovable property, time alone cannot be the
essence of the contract. Therefore, just because of a delay of one or two
days on this side or that side, if it is explained, then that alone shall not be
the criteria to refuse a decree for specific performance. The plaintiff has
examined himself and the defendant has examined her husband as the
witness. Learned counsel would contend that the court has granted
permission for the husband to be examined and he was the person who had
done the entire transaction and therefore, he is a competent person to speak.
So,we will consider that both PW.1 and DW1 are persons competent to
swear the facts. PW.1 would depose that in the month of June, he had
contacted the defendant on two – three occasions for the purpose of getting
the document in order to effect the registration. According to him, when on
17.6.1994 he went to the house of the defendant, it was found locked and
therefore, he was forced to send a telegram whereby he had expressed his
readiness and willingness to perform his part of the contract. The
defendant, in turn, had issued a notice on 18.6.1994, ie. on the last date
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intimating that the plaintiff had committed the breach and therefore, he will
not perform his part of the contract. Actually, there was time till the
evening of 18.6.1994 for the plaintiff to perform his part of the contract.
The defendant on 18.6.1994 itself had considered it as a breach and issued a
notice. Under ordinary circumstance these things will not occur. Whatever
may be the technicality of law, th court has to analyze the whole case on a
human background and behaviour of the parties. It has to be remembered
what has instigated the defendant to send a notice on 18.6.1994 intimating
that he will not perform his part of the contract holding that the plaintiff has
committed the breach. So there is something in his mind which works
against the whole thing. It is in this background we have to think about the
telegram. It is true only the receipt of telegram is produced which was not
got marked. But there is a specific averment in the plaint that a telegram
has been sent stating the readiness and willingness of the plaintiff to
perform the contract. Though everything is denied in the written statement,
this fact is not adverted to at all in the written statement. When confronted
with that situation, learned senior counsel would contend that it has been
denied in a counter statement earlier. Whatever it may be, when the plaint
is replied in the form of a written statement, one would expect the party to
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deny specifically an important ingredient which will go to the root of the
case. So, the non denial of the same in the written statement is not as
innocent as one wants to project. Under ordinary human course of conduct,
I do not think that even before the expiry of the time on the last day, the
defendant will in form the plaintiff regarding the breach. It is interesting to
see that the plaintiff has approached the court for specific performance on
21.6.1994, ie. within three days. If really, the defendant wanted to have the
property sold, certainly she would have agreed for the same because there
was no inordinate delay in claiming specific performance of the contract. If
really the plaintiff did not, for any reasons at all, and he is the person who
wanted to commit breach of the contract, he cannot be expected to be before
the court within three days of the expiry of the date mentioned in the
document. Therefore, it cannot be held that the conduct of the plaintiff is
contumacious or callous so as to deprive him of a valuable right such as
one for specific performance. Learned counsel has relied upon a decision of
this Court in T.V. Aliyas & Anr. v. A. Aboobacker
(2006(2) KLJ 790) where the principle laid down is regarding the manner
in which the discretion is to be exercised. Section 20 of the Specific Relief
Act makes it clear that it is a discretionary relief but it is equally stated that
the said discretion has to be used judicially and not capriciously. So, it is
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the sum total of the whole matter that has to be taken into consideration
while dealing with a suit for specific performance. Here, the facts would
reveal that the plaintiff had agreed to purchase the property. The plaintiff
had parted with an advance amount of Rs. 10,000/-. It is deposed by the
plaintiff that in June he had approached the defendant. It is also stated that
he had also sent a telegram. All these things would revel that he was ready
and willing to perform his part of the contract. Unless he was very serious
about the contract he would not have approached the court on 21.6.1994 for
specific performance. As stated by me, since time alone is not the essence
of the contract and as no substantial prejudice has been caused to the
defendant, I feel the discretionary relief, when exercised judicially, should
be in favour of the plaintiff and not in favour of the defendant. The learned
Subordinate Judge has only exercised that discretion in the judicious
manner and granted a decree for specific performance.
I decline to interfere and therefore, the appeal lacks merits. It is
dismissed.
M.N. KRISHNAN,
(JUDGE)
KNC/-
A.S. 364/2000 7
M.N. KRISHNAN, J.
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A.S. No. 364 OF 2000
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DATED : 27TH JULY, 2010.
J U D G M E N T