Pillai & Anr. Vs. Muhammed Kunju & Ors.  Insc 227 (20 February 2008)
Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.
Challenge in these appeals is to the judgment of a Division Bench of the Kerala
Background facts need to be noted in some detail.
suits were filed for specific performance of agreement to sell the suit
properties. Appellant No.1 is the plaintiff in OS No. 11 of 1997 which was
filed in the Sub Court Mavelikara on 23.2.1987. Appellant No. 2 is the
plaintiff in OS No. 17 of 1987 which was filed on 28.2.1987. The three
defendants were common to both the suits. Defendant no.1 is defendant No.2's
brother's son and defendant No. 3 is the wife of defendant No. 2. Defendant No.
3 obtained the property mentioned in the two suits under an exchange of
properties between her and her husband i.e. defendant no.2. She mortgaged the
properties to the Kerala Financial Corporation Limited.
in 1970 defendant No.3 executed a Power of Attorney in favour of her
husband-defendant No.2 authorising him to deal with the property. On 17.5.1974
defendant No.2 sold portions of the property to defendant No.1 acting on the
power conferred by the power of attorney vide Exhs. A 8 and A 18.
on 12.8.1974, defendant No.3 cancelled the power of attorney. In 1979 the
defendant No.1 executed a power of attorney authorising defendant No. 2 to deal
with the property. On the basis of such power of Attorney he entered into an
agreement with appellant No. 2 on 6.8.1979 to sell 3.5. cents of the property
and the structures for a price of Rs.32,000/-. An advance of Rs.10,000/- was
paid. Appellant No. 2 was then the tenant of the possession of the structure
and had paid Rs.7,000/- as security. It was agreed that the amount shall be
adjusted against part payment of the price fixed and appellant No. 2 was to pay
Rs.15,000/- as the balance consideration. The agreement indicated that
possession was delivered to appellant No.2.
20.8.1979 defendant No.2 as power of attorney holder entered into an agreement
to sell 7.5 cents of property with structures to appellant No. 1 for
consideration of Rs. 43,500/-, out of which Rs.27,000/- was paid as advance.
Appellant No. 1 was already in possession of the structure as tenant. The terms
of the agreement i.e. Exh.A1 are similar to those as Exh. A14. Since defendant
no.3 did not discharge the dues to the Financial Corporation, recovery
proceedings were started and the rent payable by the appellant was attached. It
appears thereafter there was a dissension amongst the defendants and Defendant
No.3 filed a suit (OS No. 42 of 1982) challenging the sales made by Defendant
No. 2 to defendant No. 1. The appellants were not parties to the said suit.
Defendant No. 1 took the stand that the sales in favour of defendant No. 2 as
power of attorney holder was valid and defendant No. 3 was not entitled to the
relief prayed. Thereafter the dispute was settled recognizing the rights of
defendant No.3. She undertook to honour all commitments made by defendant no. 2
in respect of the property. In 1986 appellants called upon the defendants to
execute the sale deed in their favour. A reply was given on 13.11.1986 refusing
to execute the sale deeds. Two suits were filed, as noted above, for specific
performance. There were clear averments to the effect that the appellants were
and are always ready and willing to perform their part of the agreement. The
defendants 1 and 3 contested the proceedings. It was their stand that the
agreements sued on, namely Exhs. A 1 and A19 are not valid and binding on the
defendant. A plea of limitation was also taken. But there was no denial to the
plea regarding readiness and willingness.
was specific reference to the earlier disputes between the defendants. The
trial court by judgment and decree dated 19.3.1992 dismissed the suit as barred
by limitation after holding on merits that the agreements are valid and binding
the defendant. The plaintiffs filed separate appeals in the High Court.
Defendant No.3 also filed separate memo of cross- objections challenging the
trial court's finding on the valid and binding nature of the agreements. By the
impugned judgment dated 9.7.2001, the High Court affirmed the trial court's
finding that the agreement are valid and binding, and also held that the suits
were not barred by limitation. However the High Court dismissed the suit on the
ground that there was no plea raised regarding readiness and willingness and
exercise of discretion. However, the High Court granted a decree for refund of
the amount paid as advance covered by the agreement, but that no credit was to
be given for further payments of Rs.3,800/- and 4,460/- by the plaintiffs.
Learned counsel for the appellants submitted that the High Court fell into
grave errors by holding that the plea of readiness and willingness was not
raised by the plaintiffs. In this connection, reference is made to averments in
the plaint as noted in the judgment of the trial court. Reference was also made
to the issues framed and the written statements filed by the defendants. It was
pointed out that in the written statements there was no plea taken by the
defendants that plaintiff was not ready and willing to fulfil their part of the
obligation. It was, therefore, submitted that the High Court non suited the
plaintiffs on a ground which was not raised by the defendants and which was not
considered by the trial court. It was also pointed out that factually the High
Court was wrong in holding that no plea in that regard was taken.
Learned counsel for the respondent on the other hand submitted, that while
considering a case of this nature, the parameters of Section 20 have to be kept
in view. It is pointed out that suits were not filed within a reasonable time
and the subsequent events by considerable effect. It was submitted that the
High Court has rightly held that there was no material to show that at all
relevant points of time the plaintiff was ready and willing to fulfill their
part of the obligation.
was placed on several decisions of this Court in support of the stand e.g. K.S.
Vidyanadam and others v. Vairavan (1997(3) SCC 1), K. Narendra v. Riviera
Apartments (P) Ltd. (1999(5) SCC 77), V. Pechimuthu v. Gowrammal (2001(7) SCC
617), Manjunath Anandappa v. Tammanasa and Others (2003(10) SCC 390) and Pukhraj
D. Jain & Ors. v. G. Gopala Krishna (2004 (7) SCC 251). There can be no
quarrel with the position in law urged by learned counsel for the respondent
about the parameters to be considered while dealing with a suit for specific performance.
But the High Court's judgment is clearly vulnerable. Firstly, there was no
dispute ever raised by the defendants about the readiness and willingness of
the plaintiffs to fulfill their obligations. The High Court was clearly in
error in holding that no plea regarding readiness and willingness was raised.
As noted above, the trial court in its judgment has referred to various
portions of the averments in the plaint where the plaintiffs had categorically
stated that they were and are always willing to fulfill their part of the
obligations. The High Court also failed to notice that there was no plea either
the written statement or in the cross objections filed in the appeal before the
High Court that the plaintiffs were not ready and willing to fulfill their part
of the obligation.
conclusions of the High Court are to the following effect:
the question is whether the respective plaintiffs have pleaded and proved that
they were always ready and willing to perform their part of the contracts. Even
though time did not start to run on the expiry of two months from the dates of
the agreements, certainly, the plaintiffs were aware that the defendants had to
discharge their obligation and get a release of the mortgage in two months of
the dates of the agreements. Until the sending of the notices preceding the
suits, there is nothing to show that the plaintiffs at any time called upon the
defendants to perform their part of the contract."
conclusions are clearly contrary to the pleadings of the plaintiffs. It was
categorically stated in the plaint in both the suits that the plaintiffs are
always ready and willing to fulfill their part of the obligations and that
defendants were evading the execution for one reason or the other.
Above being the position, the appeals deserve to be allowed, which we direct.
The respondents shall execute the sale deed after receiving the balance of the
consideration within a period of three months. If that is not done it shall be
open to the appellants to move the trial court for necessary steps in that
appeals are allowed without any order as to costs.