Ettanunni Raja v. Aravindaksha Menon — 1997 DIGILAW 224 (KER)

Judgment :- K. Narayana Kurup, J. Defendant in a suit for specific performance of a contract for sale is the appellant. The appeal is directed against the judgment and decree of the trial court decreeing specific performance of contract. The plaint averments are as follows: 2. The plaint schedule property along with some other property originally belonged to Thiruvannoor Puthiyakovilakathu tarward.. The property of that tarwad was partitioned as per the final decree ie. I. A. No. 431 of 1949 in O.S. No. 33 of 1946, The plaint schedule property shown as plot'D' in the plan, along with other properties have been set apart to the share of the defendant who was the 6th defendant in that suit. In the year 1970 the defendant obtained purchase certificate for the property and he has been in possession and enjoyment of the same. The defendant as per Ext. Al agreed to-sell item No.1 property described in the plaint to the plaintiff. Item No. 2 property was also agreed to be sold to the plaintiff for ingress and egress. The total consideration fixed in Ext. Al for items 1 and 2 was Rs. 1,30,000/- out of which a sum of Rs. 50,000/- was paid as advance by cheques in two instalments of Rs. 20,000/- and Rs. 30,000/-. As per Ext. Al agreement, the plaintiff has to pay the balance sale consideration by 30th of April 1993 and the defendant had to execute the sale deed in favour of the plaintiff or the person as directed by the plaintiff. At the time of payment of the balance sale consideration of Rs. 80,000/-, the defendant has to give actual possession of the plaint schedule property. There is also specific recital in the agreement (Ext.-A1) to the effect that the defendant has to evict the mortgages who are holding possession over the plaint schedule property. The original of Ext. Al agreement has been handed over to the plaintiff and a copy of the same is in the possession of the defendant. But the defendant failed to hand over the required documents necessary to execute the sale and also failed to evict the mortgagees from the property within the prescribed time. According to the plaintiff, he was ready and willing to perform his part of the contract. But the defendant failed to hand over the required documents necessary to execute the sale and also failed to evict the mortgagees from the property within the prescribed time. According to the plaintiff, he was ready and willing to perform his part of the contract. But the defendant failed to perform his part of the contract and he has not evicted the mortgagees from the property and the same has not been intimated to the plaintiff. The plaintiff having come to know that the defendant was trying to alienate the property to strangers, the present suit was laid for specific performance and also for an order of injunction restraining the defendant from alienating the property to strangers. 3. The defendant filed a written statement contending inter-alia that the mortgagees in question were evicted before the stipulated date and that the entire title deeds and other relevant documents which are necessary for drawing up and execution of the assignment deed were also handed over to the plaintiff in time; the receipt of which has been acknowledged by the plaintiff. According to the defendant, it was the plaintiff who defaulted in performing his part of the contract, Ext. A1. The specific case set up is that the plaintiff had not purchased the stamp papers nor had he arranged to prepare the draft of the sale deed in spite of several requests. According to the defendant, the plaintiff did not have the sum of Rs. 80,000/-payable to the defendant on or before 30.4.1993 or even later. The trial court on appreciation of the evidence and the pleadings decreed the suit for specific performance with costs after entering a finding that the defendant has defaulted in performing his part of the contract. Hence this appeal. 4. Having heard learned counsel on both sides, we are not persuaded to interfere with the judgment and decree of the court below. The crux of the appellant's contention is that plaintiff-respondent defaulted in performing his part of the contract even though the appellant informed the plaintiff of his readiness to perform his part of the contract, whereas according to the plaintiff he was always ready and willing to perform his part of the contract but the defendant failed to hand over all the required documents to draft the sale deed. Since the execution of Ext. Since the execution of Ext. A1 agreement and the receipt of the advance amount is admitted, the only question to be considered is who is responsible for the non performance of the contract. As per the recitals in Ext. A1, it is seen that the agreement has to be performed by 30.4.1993 and the appellant-defendant has to handover the entire prior documents to the plaintiff for executing the sale deed well before that date. No doubt, at the time of execution of Ext. A1 the appellant had entrusted certain documents to the respondent - plaintiff as borne out by Ext. B1 receipt. But as per Ext. B1, it is seen that only a white paper copy of document of title with regard to the plaintiff schedule property and white paper copy of the map, the partition deed, patta etc. had been handed over to the plaintiff. Therefore, from Ext. B1, it is clear that all the original documents have not been handed over to the plaintiff. It is also admitted by DW-1 that the possession certificate and other relevant documents were not handed over to the plaintiff. In that view, it cannot be said that the appellant has fulfilled his part of the contract by providing the plaintiff with all necessary documents so as to enable him to draft the sale deed. The definite case of the plaintiff is that, at the time of execution of Ext. A1, the plaint schedule property was in the possession of mortgagees and there is a definite recital in Ext. A1 to the effect that the appellant will redeem the mortgage and give vacant possession of the plaint schedule property, but the defendant failed to do so. The case of the appellant is that the mortgage has been redeemed by him before the stipulated time which has been provided by Ext. B2 through DW-1, the daughter of defendant's sister. In Ext. B2, it is seen recorded that the mortgagee has received the mortgage amount and the key of the building has been handed over to DW-1 on 21.4.1993. However, the trial court rejected the evidence of DW-1 and EXt. B2 accepting the case of the plaintiff that the document is a concoted one and the same cannot be accepted in evidence. On going through the same, it is seen that there are so many corrections which are not made by the scribe. However, the trial court rejected the evidence of DW-1 and EXt. B2 accepting the case of the plaintiff that the document is a concoted one and the same cannot be accepted in evidence. On going through the same, it is seen that there are so many corrections which are not made by the scribe. There is no mention in Ext. B2 that the corrections are made at the time of executing the document by the scribe himself. A casual perusal of Ext. B2 will show that the corrections been have made at a later stage. As seen from Ext. B2 itself the stamp paper has been purchased on 19.10.1992 and it is executed only on 19.3.1993 DW-1 has not given any satisfactory explanation for the correction seen in the document. None of the witness cited in the document has been examined to prove the genuineness of the document in the light of the corrections seen on the same. That apart, the defendant has no case that the redemption of mortgage has been informed to the plaintiff at any point of time. The trial court, therefore, held that apart from the interested testimony of DW-1 that redemption of mortgage has been orally informed to the plaintiff, there is no reliable evidence in that regard. 5. In the result, the trial court concluded that the appellant has defaulted in performing his part of the contract. As already found the defendant has not handed over all the required original documents and has not redeemed the mortgage and recovered vacant possession of the plaint schedule property so as to execute the sale deed in favour of the plaintiff even though he received an amount of Rs. 50,000/- as advance. The plaintiff has produced Exts. A5 to A8 pass books to show that he had sufficient funds to pay the balance sale consideration of Rs. 80,000/- on 30.4.1993. So, the plaintiff's case is that he has always been ready and willing to perform his part of the contract has to be accepted. 6. In the light of the aforesaid discussion, we are of the view that it was the defendant who defaulted in performing his part of the contract and the plaintiff has always been ready and willing to perform his part of the contract. The execution of Ext. A1 agreement and payment of advance made are admitted by the appellant. 6. In the light of the aforesaid discussion, we are of the view that it was the defendant who defaulted in performing his part of the contract and the plaintiff has always been ready and willing to perform his part of the contract. The execution of Ext. A1 agreement and payment of advance made are admitted by the appellant. A reading of the evidence tendered by DW-1, the niece of the appellant would show total lack of bonafides in the case set up by the appellant. The court below has rightly decreed the suit for specific performance as prayed for. We find no valid ground to differ from the findings of the court below in this regard. However, we find that while disposing of the suit, decreeing specific performance, the trial court has committed a serious error in as much as it has not even adverted to, leave alone properly considered of the merit of the counterclaim raised by the defendant in his written statement paying necessary court fee. In the written statement the defendant has raised a counter claim for interest on the balance amount of Rs. 80,000/- from 1.5.1993 onwards alleging that the plaintiff has illegally withheld the said amount from him. Defendant has claimed interest at 10% per annum, the rate offered by the Nationalised Banks on deposits. The amount of interest claimed specifically in the written statement is Rs. 5,333.28 till 31.12.1993 and thereafter at the rate of Rs. 666.66 per month till date of payment or deposit. As observed already, the trial court has not even adverted to the above counter claim so raised by the defendant. Once a counter claim is raised it is incumbent on the trial court to frame an issue regarding the counter claim and to enter a finding thereon while disposing of the suit. When the above serious omission committed by the trial court which would justify a remand of the suit for fresh disposal was pointed out to the learned counsel for the respondent-plaintiff, the counsel, according to us very fairly, submitted that a remand for considering the counter claim may be avoided by allowing the counter claim for which his client may not have any objection taking note of the facts and circumstances of the case. As such having due regard to the entire facts and circumstances of the case, we are of the view that it is only just and legal to allow the counter claim while confirming the decree passed by the trial court for specific performance of the agreement. We would in this connection refer to the fact that the balance amount of Rs. 80,000/- was payable on or before 30.4.1993 and the plaintiff has neither offered the same nor issued any notice expressing his readiness and willingness to pay the same before filing the suit. In the counter affidavit filed in LA. 1798 of 1993 to the injunction application filed by the plaintiff, the defendant has stated that he was always ready and willing to perform his part of the agreement and that he is ready to execute the sale deed as agreed if the plaintiff pays the balance amount either in cash or by bank draft on or before 31.7.1993. Of course, the counter affidavit was filed only on 27.7.1993, without giving a copy to the plaintiff. The copy of the counter affidavit seems to have been served on the plaintiff only on 1994, long after 31.7.1993 the date before which the plaintiff was called upon to pay the amount. As such though' the plaintiff cannot be found fault with for not accepting the offer made by the defendant in the counter affidavit, we find that it is only just and proper to allow the defendant to recover interest on the balance amount in the peculiar facts and Circumstances of the case. The amount of Rs. 80,000/- seems to have been deposited only after the suit was decreed on 28.10.1996. Accordingly we would allow the counter claim and direct the plaintiff to pay interest at the rate of 10% per annum on Rs. 80,000/- from 1.5.1993 till 28.10.1996 the date on which the amount was deposited in court. Plaintiff is granted a period of one month from the date of receipt of a copy of this judgment to deposit the amount of interest as directed above. The appeal is allowed in part to the extent of the counter claim raised by the defendant. The decree passed by the trial court for specific performance of the agreement would stand confirmed. Parties are directed to bear their respective costs.