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2016 DIGILAW 1075 (KER)

Antony, K. O. v. Krishnankutty Menoki, M. K.

2016-12-07

P.R.RAMACHANDRA MENON, P.SOMARAJAN

body2016
JUDGMENT : P. Somarajan, J. These two appeals are preferred against the common decree and judgment dated 19-12-1998 of the Sub Court, Kozhikode in O.S. No. 259 of 1992 and O.S. No. 694 of 1993. The main issue involved in the suit is with respect to execution of two contracts for sale exhibited as A-1 and A-5. According to the plaintiff in O.S. No.259 of 1992 (which is treated as leading case in the lower court, hence parties herein below are referred to in their status in the leading case in O.S. No. 259 of 1992), a contract for sale was entered into between the plaintiff and defendant on 15-2-1989, exhibited as A-5, by which the parties have agreed to convey and transfer title over A Schedule property in favour of the plaintiff by receiving a total sale consideration of Rs. 1,50,000. It was inter alia contended by the plaintiff that at the time of execution of A-5 agreement, an amount of Rs. 70,000 was given by way of advance out of the sale consideration. The agreed period for performing Exhibit A-5 contract was up to 30-4-1989. It is thereafter that another agreement was entered into with the defendant on 9-3-1990 (produced and marked as Exhibit A-1), due to the intervention of some mediators regarding the building situated in the A Schedule property and its construction by utilizing inferior quality materials which is the subject-matter of A-5 contract. It was alleged that by the intervention of mediators, the first defendant agreed to take back the plaint A Schedule property and to give the B Schedule property, wherein he was constructing a building, for a total sale consideration of Rs. 2,00,000. It was also agreed that the advance amount received at the time of execution of A-5 agreement and subsequent payments which were made would be treated as part of consideration covered by Exhibit A-1 agreement for sale. It was also agreed that the improvement made by the plaintiff over the plaint A Schedule property will also be counted as part of consideration and balance sale consideration due under the agreement was fixed at Rs. 33,000. It was also agreed that the improvement made by the plaintiff over the plaint A Schedule property will also be counted as part of consideration and balance sale consideration due under the agreement was fixed at Rs. 33,000. While so, the defendant issued Exhibit B-2 notice to the plaintiff demanding performance of part of contract based on Exhibit A-5 agreement for sale dated 15-2-1989 to the plaintiff for which the plaintiff has issued Exhibit A-2 reply stating the execution of subsequent agreement exhibited as Exhibit A-1 and also demanding performance of pail of contract agreed under Exhibit A-1 agreement. It is thereafter the suit in O.S.No. 259 of 1992 was instituted. Later on, the defendant instituted the connected suit in O.S. No. 694 of 1993 for getting the balance sale consideration of Rs. 10,000 expressing his willingness to execute and perform his part of contract by virtue of Exhibit A-5 contract for sale. 2. Both the suits put in trial jointly and on consideration of pleadings and evidence and on hearing both the parties, the lower court decreed the leading case in O.S. No. 259 of 1992 and dismissed the connected suit in O.S. No. 694 of 1993 by its judgment dated 19-12-1998, against which these two appeals were preferred by the defendants. The first defendant is the husband and the second defendant is the wife. The second defendant was impleaded in the suit by the plaintiff in tire leading case on the ground that after the issuance of Exhibit A-2 notice on 21-5-1990, tire defendant executed a deed of conveyance in favour of his wife on 24-7-1990, which is, according to the plaintiff, created with the intention to defeat the performance of part of contract as per Exhibit A-1 contract for sale. 3. So many questions are involved in the suit with respect to the validity of Exhibit A-1 agreement and its execution and also with respect to the application of Section 73 read with Section 45 of the Indian Evidence Act and also Section 20 of the Specific Relief Act. 4. It is an admitted case of both the parties that they have entered into Exhibit A-5 contract for sale, by which they agreed to convey and transfer A Schedule property for a total consideration of Rs. 1,50,000 by executing Exhibit A-5 agreement, and also by receiving an advance amount of Rs. 70,000 out of the sale consideration. 4. It is an admitted case of both the parties that they have entered into Exhibit A-5 contract for sale, by which they agreed to convey and transfer A Schedule property for a total consideration of Rs. 1,50,000 by executing Exhibit A-5 agreement, and also by receiving an advance amount of Rs. 70,000 out of the sale consideration. It is also admitted by both the parties that, subsequently, the plaintiff has paid another amount of Rs. 70,000 towards part payment of sale consideration which was received and acknowledged by the first defendant. According to the plaintiff, after the execution of Exhibit A-5 agreement, it was revealed that the building situated in A Schedule property was constructed by using inferior quality materials and it was brought to the notice of the first defendant and by the intervention of mediators that the first defendant agreed to lake back plaint A Schedule property and to sell B Schedule property for a total consideration of Rs. 2,00,000/-. It was also agreed to adjust the amount already received under Exhibit A-5 as part of consideration to Exhibit A-1 agreement for sale and also the value of improvements made by the plaintiff in A Schedule property. The balance sale consideration to be paid was fixed at Rs. 33,000 by mutual consent and it was incorporated in Exhibit A-1 agreement. The agreed period for execution of the sale is one year. The factum of execution as well as the signature found affixed as that of the first defendant in Exhibit A-1 agreement was disputed and denied by him. In other words, the entire execution of the document was disputed and denied by the defendant. So it is upon the person who relies the document to prove its due execution, namely the plaintiff, for which the plaintiff has given oral evidence as RW. 1. None of the witnesses to Exhibit A-1 agreement was examined though the same is witnessed by two witnesses and a scribe who prepared the document, who is also a signatory to the said document. It was submitted by the learned counsel for the defendants that witnesses to the document neither summoned nor examined by the plaintiff' in order to prove the due execution of Exhibit A-1 agreement for sale and no attempt was made by the plaintiff in that behalf. It was submitted by the learned counsel for the defendants that witnesses to the document neither summoned nor examined by the plaintiff' in order to prove the due execution of Exhibit A-1 agreement for sale and no attempt was made by the plaintiff in that behalf. But, the lower court on a mistaken impression, decreed the suit mainly on a comparison of disputed and admitted signatures made by the Court under Section 73 of the Indian Evidence Act and also considering the two factors in support of its probability, namely, the ability of the plaintiff to collect and make payment of balance sale consideration within the period agreed by the parties under Exhibit A-5, which comes to only Rs. 10,000 but it was not paid in spite of expiry of period and secondly that immediately after the issuance of Exhibit A-2 reply notice, (he defendant rushed to execute a document of transfer in favour of his wife, the second defendant. Both these two factors were taken into consideration by the lower court as circumstance which would probablize the due execution of Exhibit A-1 agreement for sale coupled with the comparison made by the lower court under Section 73 of the Indian Evidence Act. In so far as the power of the Court to have a comparison with the admitted signatures and the disputed signatures are concerned, no doubt, it is well-settled. Section 73 starts from the wording "In order to ascertain". Section 73 of the Evidence Act is extracted below for reference. "73. Comparison of signature, writing or seal with others admitted or proved. - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." (emphasis supplied) 5. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." (emphasis supplied) 5. Going by Section 73 it is clear that Section 45 of the Indian Evidence Act stood on a different footing as it is the enabling provision to issue any expert for any scientific examination in the matter of handwriting, signature, thumb impression or any factors which require scientific examination. It is also settled that the Court is not bound to accept the report or opinion of the expert unless it is not satisfied itself with respect to its correctness and acceptance. But, Section 73 stands on a different footing as it is commenced by the wording/expression "In order to ascertain", which is affirmative in nature with respect to the jurisdiction of the Court to have a comparison so as to ascertain whether the disputed signatures are genuine or not. 6. A Division Bench of this Court in Chandrasekharan Nair v. M/s Olimpic Credit Corporation, Kottayam, 2014 (2) K.L.T. 245 wherein one among us is a member (P. R. Ramachandra Menon, J.) has considered the power of the Court to have a comparison under Section 73 of the Act and its evidentiary value. It was held in that decision that "except in exceptional cases the Court shall not rest its decision only on the comparison made by it. Ordinarily it may be done only to appreciate the other evidence or to strengthen the view which could be taken on other substantive evidence - the Court should avoid in reaching a conclusion based on a mere casual routing glance, a perusal of admitted and disputed signatures". In short, the comparison which can be made by the Court under Section 73 has got its own limitations as the Court is not an expert to identify or to ascertain the various aspects of nature and character of disputed and admitted signatures. The said question involves various aspects, the nature of use or the tools used for affixing signature or writing the document, the various strokes, the line quality, the speed of writing etc., all these requires examination by a scientific expert. The said question involves various aspects, the nature of use or the tools used for affixing signature or writing the document, the various strokes, the line quality, the speed of writing etc., all these requires examination by a scientific expert. Those aspects cannot be ascertained by a Court or a Judge unless the Court itself is an expert on the field. So, the comparison, if any, made under Section 73 can only be taken as a supporting factor when there is other evidence to probablize the due execution of Exhibit A-1 agreement for sale. 7. Needless to say that the defendant has received part of sale consideration even subsequent to the lapse of period as agreed to under Exhibit A-5 contract for sale, i.e. after 30-4-1989, it may be an indication with respect to the probability of Exhibit A-1 agreement. It was also submitted by the learned counsel for the defendants that there is no legal embargo or objection in accepting the sale consideration or any part thereof subsequent to the expiry of Exhibit A-5 agreement for sale. It was also submitted that in so far as the sale of immovable property is concerned, time is not the essence of the contract and hence Section 55 of the Contract Act will not come into play. It is true that it is the settled principle that, ordinarily, time will not be the essence of contract for sale of immovable property, though the legal position is different, if it is for a re-transfer. In the matter of payment of balance sale consideration or receipt of lire same after the expiry of the period of contract, it would normally extend the period of the contract. It has nothing to do with the question as to whether time is the essence of the contract or not as it would come into play only when a suit was instituted enforcing the contract for sale and whether there is inordinate delay in instituting the suit. The fact that subsequent to the expiry of the period of contract, Ext. A-5, balance sale consideration accepted by the owner of the property would itself show that it was accepted on a mutual understanding either to extend the period of the contract already entered into or on any other understanding. The fact that subsequent to the expiry of the period of contract, Ext. A-5, balance sale consideration accepted by the owner of the property would itself show that it was accepted on a mutual understanding either to extend the period of the contract already entered into or on any other understanding. If it was accepted for enforcing the period of the contract, there would be an endorsement in the contract for sale itself signed by the parties concerned or additional contract extending the period of its performance. No such endorsement was made either in Ext. A-5 contract for sale or any additional agreement was also executed. If that be so, this may probablize the case advanced by the plaintiff regarding execution of Ext. A-1 subsequent agreement. According to the plaintiff, the earlier agreement was subsequently rescinded by substituting a new one in that place, Ext. A-1. Though the above said two factors probablize the execution of Ext. A-1 subsequent agreement for sale, it may have its own hypotheses, other than the one probablizing the execution of Ext. A-1. Furthermore, supposition or surmises cannot be substituted in the place of proof. Non examination of witness to Exhibit A-1 agreement for sale or the scribe thereof is fatal to the case advanced by the plaintiff. 8. There is total failure on the part of the plaintiff to prove the due execution of Exhibit A-1 agreement, in spite of the fact that, it has been witnessed by two other witnesses, apart from scribe, who had also affixed his signature in his status as the scribe of the document. 9. The next contention raised by the defendants is that there is no sufficient pleading in the plaint regarding the readiness and willingness to perform the part of contract to be performed by the plaintiff as against Exhibit A-1 agreement for sale. There are pleadings in the plaint though the plaint is very poorly drafted expressing the willingness and readiness to perform their part of contract. Of course, there is no specific pleading to the effect that they are ready to handover A Schedule property to the defendant, though such a clause was also incorporated in Exhibit A-1 agreement. There are pleadings in the plaint though the plaint is very poorly drafted expressing the willingness and readiness to perform their part of contract. Of course, there is no specific pleading to the effect that they are ready to handover A Schedule property to the defendant, though such a clause was also incorporated in Exhibit A-1 agreement. But, going by the entire pleadings, we are of the considered view that the pleadings raised in tire plaint itself is sufficient as it is substantial with respect to the readiness and willingness of the party concerned. Further it is not at all necessary to plead each and every part of contract to be performed by tire plaintiff in the plaint, specifically. A general pleading to the effect that the plaintiff is ready and willing to perform his part of contract would suffice. 10. On coming into the question of specific performance, Section 20 mandates certain other requirements. Section 20 of the Specific Relief Act is extracted below for reference. "20. Discretion as to decreeing specific performance. - (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so: but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance: (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant: or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff: (c) where the defendant entered into the contract under circumstances which, though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1. - Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2. Explanation 1. - Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2. - The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party." 11. It says that the Court is not bound to grant specific performance as it is a discretionary one even though it is lawful to do so. It further states that the discretion has to be exercised in a sound and reasonable manner and it should be the one capable of correction by an Appellate Court. The various expressions embodied under Section 20 of the Specific Relief Act would show that the Court is not bound to grant a decree for specific performance, even though it was found to be lawful to do so and the Court has to exercise its discretion. The question at what time the Court has to exercise its discretion is also well evident from a mere reading of Section 20 of the Specific Relief Act, which would arise only after finding that it is lawful to grant the relief sought for in favour of the plaintiff. In all other provisions of law wherein discretion could be exercised stands for exercising discretion in a positive way for granting some relief to the parties and not for refusing any relief. But, the discretionary power incorporated and embodied under Section 20 stands on a different footing in which the Court has to exercise discretion not for granting the relief, but for refusing the same. But, the discretionary power incorporated and embodied under Section 20 stands on a different footing in which the Court has to exercise discretion not for granting the relief, but for refusing the same. It has got its own character and peculiarity, apart from other provisions contained in other laws for the time being in force. So, the real impact of Section 20 should be and must be understood under the background of those aspects. It is a mandate upon the Court to address the question of exercise of discretion before granting or refusing a decree for specific performance and it has to be exercised only after finding that it is lawful to grant a relief of specific performance in favour of the plaintiff. A decree which was granted without addressing and without exercising the discretion under Section 20 of the said Act is bad in law. The Court is duty bound to address the question of exercise of discretion under Section 20 of the Specific Relief Act while granting or refusing to grant a decree of specific performance. The said discretion has to be exercised only after finding that it is lawful to grant the relief prayed for in suit in favour of the plaintiff. In the present case in hand, that question is not considered or answered. So the impugned decree is bad in law due to non-compliance of requirement under Section 20 of the Specific Relief Act. 12. The expression 'capable of correction by a Court of appeal' has got its own impact. It stands for a reasoned exercise of discretion enumerating the grounds which were considered and adopted by the Court while granting or refusing specific performance. It has to be borne in mind that, while constructing Section 20, the legislature has incorporated the requirement to be considered when exercising discretion in so many words and also by giving cases in which the court can exercise discretion not to decree specific performance with two explanations to sub-section (2) of Section 20 besides the incorporation of expression that it should not be arbitrary, but should be sound and reasonable, guided by judicial principles. The expression 'capable of correction by a Court of appeal' also was incorporated in addition to the above expression to give prime importance to the exercise of discretion under Section 20 of the Specific Relief Act. The expression 'capable of correction by a Court of appeal' also was incorporated in addition to the above expression to give prime importance to the exercise of discretion under Section 20 of the Specific Relief Act. The incorporation of expression 'capable of correction by a Court of appeal' stands for a speaking order detailing the reasons, grounds and factors which were considered by the Court while exercising its discretion. 13. In the present case in hand, the construction of house situated in A Schedule property by using inferior quality materials and damages sustained to the building due to heavy rain, the availability of two sets of property with building namely A and B Schedule, the question of chance of injury to both the plaintiff and the defendant, hardship involved etc. would come under the purview of factors to be looked into while exercising the discretion. From the above said discussions, we are of the view that it is fit and proper to grant both the plaintiff and the defendant to adduce further evidence in the hand in order to prove due execution of Ext. A-1 contract for sale and also other matters involved in the suit and hence both the appeals are allowed in part. The common decree and judgment of the lower court in O.S. No. 259/1992 and O.S. No. 694/1993 are hereby set aside. The parties are directed to appear before the lower court on 16-1-2017 and the lower court is hereby directed to proceed with the matter and to dispose of the suit at the earliest, within a time schedule of three months from the date of receipt of a copy of this Judgment. The lower court shall afford ample opportunity to both the parties to adduce evidence, if any, cither oral or documentary and shall dispose of the matter on merits. No costs.