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2011 DIGILAW 19 (KAR)

Joseph Miranda v. Cecila D’souza

2011-01-04

H.G.RAMESH

body2011
JUDGMENT H.G. RAMESH, J.—This appeal is by the plaintiff challenging the order of 1st Addl. District Judge, D.K., Mangalore, in R.A. No. 128/1989 dated 29.1.2004 in dismissing the suit filed by the plaintiff for specific performance by reversing the decree passed by the I Addl. Civil Judge, Mangalore in O.S. No. 163/1980. 2. According to the plaintiff, the property to the extent of 14 cents, i.e., 12 + 2 cents in Sy. No. 116 of Marpady village, Karkala Taluk, D.K. was agreed to be sold by the defendant in favour of the plaintiff for a sale consideration of Rs. 40,000/- towards which, plaintiff paid an advance of Rs. 16,500/- to the defendant and also agreed to pay the balance consideration as on the date of execution of the sale deed. The defendant is said to have executed the agreement of sale on 7.7.1978 and agreed to execute the sale deed on 6.7.1980 and notice is also said to have been caused calling upon the defendant to execute the sale deed and since the defendant gave an untenable reply and did not execute the sale deed, the suit came to be filed. The suit was contested by the defendant stating that no such agreement was executed and that plaintiff himself was not ready and willing to perform his part of the contract and that he has not received any such sum of Rs. 16,500/-. Based on the pleadings, the following five issues were raised by the trial Court: 1. Whether the plaintiff is entitled to the specific performance of the agreement to sell dated 7.7.1978 as prayed for and consequential relief for possession? 2. Whether the plaintiff is alternatively entitled to a sum of Rs. 16,500/- by way of return of advance and another sum of Rs. 16,500/- by way of liquidated damages? 3. Whether the plaintiff is not entitled to enforce the agreement dated 7.7.1978 for the reasons mentioned in the written statement of the defendant? 4. To what reliefs? After the trial and after hearing the respective parties, while answering the relevant issues, the trial Court has decreed the suit of the plaintiff against which, appeal was preferred before the I Addl. District Judge, D.K., wherein the appeal came to be allowed while setting aside the order of the I Addl. Civil Judge, Mangalore. Hence, this appeal. 3. After the trial and after hearing the respective parties, while answering the relevant issues, the trial Court has decreed the suit of the plaintiff against which, appeal was preferred before the I Addl. District Judge, D.K., wherein the appeal came to be allowed while setting aside the order of the I Addl. Civil Judge, Mangalore. Hence, this appeal. 3. The following substantial questions of law were raised for consideration by my predecessors on 10.8.2004 and 15.12.2010 respectively: (i) Whether the findings of the 1st appellate Court is perverse in the matter of readiness and willingness on the part of the party in question? (ii) Whether the 1st appellate Court is justified in considering the readiness and willingness of the deceased plaintiff to perform his part of the contract, when the defendants had falsely denied the agreement and committed breach of the terms of agreement? (iii) Whether the 1st appellate Court while reversing the judgment and decree of the trial Court was justified in not considering the alternate prayer of the plaintiff for refund of the advance amount with or without the damages as stipulated in the agreement dated 7.7.1978? 4. Heard. 5. It is the submission of the learned Counsel for the appellant that the lower appellate Court has relied upon Ex. D4 the letter, which was written in the usual course by the plaintiff, and rather the plaintiff was ready and willing to perform his part of the contract and the entire approach of the lower appellate Court in reversing the finding of the well considered order of the trial Court is erroneous. Further, to contend that time was not the essence of the contract, it is submitted that readiness and willingness does not necessarily mean that one has to have funds always with him, but his capacity to raise the funds is more important and the trial Court having considered the capability of the plaintiff to perform his part of the obligation, has rightly decreed the suit, but, the lower appellate Court has erroneously reversed the said order. In support of his arguments, the learned Counsel, relied upon the following two decisions reported in the case of E.S. Rajan vs. R. Mohan, ILR 1995 Kant. In support of his arguments, the learned Counsel, relied upon the following two decisions reported in the case of E.S. Rajan vs. R. Mohan, ILR 1995 Kant. 492 and the decision of the Apex Court reported in the case of Motilal Jain vs. Smt. Ramdasi Devi and others, AIR 2000 SC 2408 to contend that, as per Section 16(C) of the Specific Relief Act, damages claimed as alternative relief cannot be a ground to refuse the main relief of specific performance. 6. Per contra, the learned Counsel appearing for the respondent has submitted that, although the respondent has not filed a cross appeal on the point of execution of agreement of sale since it is held by both the Courts below that there was an agreement of sale, but nonetheless, by way of oral arguments he can address his arguments on the said point that the finding given by both, the Courts below as to the execution of the sale agreement is erroneous, since by virtue of the relationship between the plaintiff and the defendant, the defendant who was abroad, apart from, the suit property, had also rented some other tenements and also executed power of attorney in favour of the plaintiff and in addition to that, he had also handed over certain blank stamp papers as requested by the plaintiff for the purpose of evicting the tenants and that were being misused to create an agreement to sell the suit property. It is further submitted that Ex. D4 the letter written by the plaintiff has been specifically considered by the lower appellate Court which clearly indicate the incapacity and hardship on the part of the plaintiff in gathering the sale consideration. Although he had stated in the notice issued that he had some money with him, but neither he pleaded nor proved his readiness and willingness to perform his part of the contract, and, also even as per the contents of the agreement if it is taken as executed, the alternate relief that is provided is, for refund of the amount that too in the case of breach of contract on the part of the defendant but, since there is a default on the part of the plaintiff, the amount could be forfeited and as such, rightly, the lower appellate Court has reversed the finding of the trial Court as the ingredients of specific performance have not been proved. Accordingly, in support of his arguments, learned Counsel has relied upon the decision reported in the case of Annasaheb Balesha Waghe and others vs. Appasaheb Dada Pommai and others, 2007(5) KLJ 424 the decision of the Apex Court in the case of Kanshi Ram vs. Om Prakash Jawal and others, AIR 1996 SC 2150 and another decision of the Division Bench of this Court reported in the case of B.R. Mulani vs. Dr. A.B. Aswathanarayana, ILR 1992 Kant. 2224. 7. The lower appellate Court, of course, has noted the contents of Ex. D4 as to the readiness and willingness on the part of the plaintiff and that too, the year it was written, i.e., on 8.9.1979 immediately after one year of the alleged agreement said to have been entered into between the parties, which was in Konkani language. Ex. D4 is the letter written by the plaintiff to the defendant, who is none other than the brother-in-law of the defendant, when the defendant intended to come to the place of the plaintiff from abroad to collect the amount wherein the plaintiff has stated that he had no sufficient amount with him and that he does not know what to do. The lower appellate Court having noticed the contents of the said letter wherein the plaintiff had asked the defendant not to come from abroad and that he would not be in a position to pay the amount and rather, he had requested the defendant not to bring the radio and watch which he had requested since he had no money to pay to him, has observed that Ex. D4 speaks as to the capacity of the plaintiff to raise money. 8. What is being noticed is, although several contentions were raised by the defendant that no such agreement was executed by him nor he has received the amount of Rs. D4 speaks as to the capacity of the plaintiff to raise money. 8. What is being noticed is, although several contentions were raised by the defendant that no such agreement was executed by him nor he has received the amount of Rs. 16,500/- towards sale consideration and the stamp papers and General Power of Attorney executed in favour of the plaintiff to take care of other tenements were being misused to execute the agreement of sale in his favour and, also that he was not in a good state of mind and wrongly such an agreement was got executed by the plaintiff etc., both the Courts below, as to the terms of the agreement and the contents thereof and based on the evidence available on record, have formed an opinion that there was due execution of agreement. However, so far as readiness and willingness on the part of the plaintiff is concerned, the trial Court referring to Ex. D4 has observed that it was written in the usual course. 9. In a suit for specific performance, as is held by the Apex Court in the decision reported in AIR 2000 SC 2408 in the case of Motilal Jain referred to above, the averment of readiness and willingness in the plaint shall not be in specific words, but it should clearly indicate the readiness and willingness of the plaintiff to fulfil his part of obligation under the contract. Apart from the averments in the suit, the conduct of the plaintiff is also relevant to consider that he is able to demonstrate his readiness and willingness to perform his part of obligation. 10. In the case on hand, having regard to the relationship between the parties, Ex. D4 which was written by the plaintiff to the defendant, would clearly demonstrate that at the relevant point of time or thereafter subsequently, the plaintiff was unable to establish his capacity to raise the remaining amount of the sale consideration and rather he also expressed his hardship by way of saying that he does not know what to do. Under these circumstances, it cannot be said that he had the capability to perform, the remaining part of the contract at the relevant point of time or subsequently, within a reasonable time. Under these circumstances, it cannot be said that he had the capability to perform, the remaining part of the contract at the relevant point of time or subsequently, within a reasonable time. In these circumstances, the lower appellate Court has rightly held that the plaintiff has failed to establish his readiness and willingness to perform his part of the contract. As such, the finding of the lower appellate Court on the issue of readiness and willingness cannot be held to be perverse. 11. So far as the payment of earnest money is concerned, in the circumstances, whether the plaintiff would be entitled for refund of the earnest money or for having committed breach of contract on his part it could be forfeited as per the terms of the contract has to be considered. Having regard to the relationship between the parties and also when it is not in dispute that when the defendant has reposed faith in the plaintiff and had executed general power of attorney to look after the tenements apart from what is being let out to the plaintiff of which subsequently, there was an agreement was entered into to sell the property or otherwise, but the fact remains that the plaintiff is shown to have taken undue advantage of the situation and tried to dodge the proceedings in not executing his part of the contract, i.e., to get the sale deed executed by paying the remaining consideration. 12. However, in the interest of the parties, it would be ordered to refund the earnest money that is said to have been paid by the plaintiff to the defendant. Appeal is allowed in part while answering the substantial question of law accordingly. It is ordered that plaintiff would be entitled for refund of earnest money of Rs. 16,500/- which would be paid within three months with 6% interest from the date of the agreement till payment. 13. No order as to cost.