High Court Kerala High Court

Raveendran vs P.K.Rajamma on 3 March, 2010

Kerala High Court
Raveendran vs P.K.Rajamma on 3 March, 2010
       

  

  

 
 
  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.
                --------------------------
                     A.S.NO.285 OF 1999
                --------------------------
               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