Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 1234 (KER)

K. Sarojam, D/o Agnas v. Sreekumari, D/o Sarada

2017-09-22

B.KEMAL PASHA

body2017
JUDGMENT : 1. Challenging the concurrent findings entered by the Principal Munsiff's Court, Neyyattinkara in O.S.No.403/2007 followed by those of the Additional District Court-III, Thiruvananthapuram in A.S.No.97/2015, defendants 2 to 4 have come up with this second appeal. 2. The suit is one for specific performance of Ext.A1 agreement for sale. The case of the plaintiff is that the defendants had agreed to sell the plaint schedule property for a consideration of Rs. 7,000/- per cent and accepted an amount of Rs. 5,000/- as part of consideration from the plaintiff on 8.11.2005 by executing Ext.A1 in favour of the plaintiff. The sale deed was agreed to be executed within six months from the date of agreement. It is the case of the plaintiff that the plaint schedule property was a water logged area, and the plaintiff reclaimed the said wet land by dumping about 50 loads of soil in it on 9.12.2006 by spending an amount of Rs. 15,000/-, after the execution of Ext.A1. Even though the plaintiff was ready and willing to get the sale deed executed by paying the balance consideration, her request and demands fell in deaf ears and consequently she caused to issue Ext.A4(b) lawyer's notice dated 4.4.2007 to the defendants thereby calling upon them to execute the sale deed. The lawyer's notice also did not evoke any response, and hence the suit. 3. The defendants contended that the signature in Ext.A1 were not affixed by them; whereas, the signatures were forged. It is contended that on 8.6.2005 there was an agreement executed by them in favour of the plaintiff thereby agreeing to sell the plaint schedule property for Rs. 10,000/- per cent. The plaintiff thereafter withdrew from the said agreement on the ground that the property to be sold was a reclaimed paddy field. No soil was dumped by the plaintiff in the plaint schedule property. 4. The Munsiff's Court found Ext.A1 as genuine and decreed specific performance of the agreement. Aggrieved by the said judgment and decree, defendants preferred A.S.No.97/2015 before the lower appellate court. The lower appellate court has also concurred with the findings entered by the trial court, and dismissed the appeal, and hence this second appeal. 5. 4. The Munsiff's Court found Ext.A1 as genuine and decreed specific performance of the agreement. Aggrieved by the said judgment and decree, defendants preferred A.S.No.97/2015 before the lower appellate court. The lower appellate court has also concurred with the findings entered by the trial court, and dismissed the appeal, and hence this second appeal. 5. This second appeal is admitted by this Court on the following substantial questions of law: "(i) Have the courts below not committed illegality in failing to state reasons for exercising the discretion to grant specific performance in terms of S.20(1) of Specific Relief Act? (ii) Have the Courts below not acted judicially in terms of S.20(1) of Specific Relief Act thereby vitiating entire proceedings? (iii) Have the Courts below not committed illegality in finding that Ext.A1 agreement was not a forged one?" 6. The learned counsel for the appellants has argued that both the trial court and the lower appellate court have miserably failed to consider the discretionary power to be exercised by the courts while dealing with the question of specific performance, as per Section 20(1) of the Specific Relief Act, 1963. It has been argued that without assigning any reasons or the grounds on which the discretion has been exercised, the trial court has simply stated that once the agreement is proved 'normally the plaintiff must be in a position to specifically enforce the same and there are no compelling circumstances for denying the specific performance of the agreement'. It has been argued that the trial court ought to have decreed the specific performance of the contract only on sound principles of law and the judgment should reflect proper application of mind for exercising such a discretion judiciously within the meaning of Section 20(1) of the Specific Relief Act. 7. On analysing the facts of the suit, it seems that the plaintiff had a case that she had caused reclamation of the wet land in question by dumping about 50 loads of soil by spending an amount of Rs. 15,000/-, after the execution of Ext.A1. At the same time, both the courts below have not considered the recitals in Ext.A1 which clearly show that the plaint schedule property, even at the time of execution of Ext.A1, was a reclaimed wet land. It has been specifically shown in Ext.A1 that the property was a reclaimed one. 15,000/-, after the execution of Ext.A1. At the same time, both the courts below have not considered the recitals in Ext.A1 which clearly show that the plaint schedule property, even at the time of execution of Ext.A1, was a reclaimed wet land. It has been specifically shown in Ext.A1 that the property was a reclaimed one. Apart from that, PW1 who is the plaintiff, has specifically admitted before the trial court that the property is in the possession of the defendants. Even then she has a case that she caused the reclamation of the property by dumping 50 loads of soil by spending an amount of Rs. 15,000/-. The said case set up by the plaintiff is not believable. 8. The plaintiff has no case that this is case in which she was entitled to part performance of the contract. She has no case that she was put in possession of the property on the execution of Ext.A1. After admitting that the property is still in the possession of the defendants, she had chosen to forward a case that she had filled the property with 50 loads of soil for reclaiming it. The said averment was clearly denied in the written statement as well as in the evidence of DW1. According to DW1, it is false to state that the property was caused to be reclaimed by the plaintiff. Especially when Ext.A1 agreement shows that the property was a reclaimed one, the said case attempted to be set up by the plaintiff is not believable. Both the courts below have failed to appreciate the said aspect. 9. Regarding specific performance of the contract, it is true that inadequacy of consideration will not weigh much. At the same time, the payment of part of consideration can be taken note of. What was paid was Rs. 5,000/- only in this case. In such case, it cannot be said that the plaintiff was put to unnecessary hardship. It may be to overcome such a handicap, that the plaintiff had chosen to forward a case that the property was caused to be reclaimed by her by spending an amount of Rs. 15,000/-. What are the compelling circumstances, which compelled the trial court to decree specific performance of the contract, have not been revealed in the judgment. 10. It is trite that the circumstances specified in Section 20 are only illustrative and not exhaustive. 15,000/-. What are the compelling circumstances, which compelled the trial court to decree specific performance of the contract, have not been revealed in the judgment. 10. It is trite that the circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract. [See Sardar Singh vs. Krishna Devi (1994) 4 SCC 18 ] 11. The discretion to be exercised in granting specific performance should be exercised on sound principles of law. The discretion to grant specific performance is not arbitrary; but it should be sound and reasonable. Further, it should be guided by judicial principles. What are the grounds on which the courts below have chosen to exercise the discretion to grant specific performance are not discernible from the impugned judgments. As per Section 20 (1), whatever matters considered and applied by the court should be discernible from the judgment since it is specified that it should be capable of correction by a court of appeal. 12. The learned counsel for the appellants has invited the attention of this Court to the decision rendered by the Division Bench of this Court in Omana Mathai v. Joseph Easo[ 2014(1) KLT 689 ] wherein it was held in paragraph 7 as follows: "All that the learned trial Judge has thereafter noted is that the plaintiff affirmed that sale consideration was given. This reflects that the reasoning process discloses the consideration of the fact that the plaintiff affirmed that sale consideration was given. The judgment then proceeds to say that the learned Judge is satisfied that plaintiff is entitled for the decree prayed for. That sentence in the impugned judgment is only the recording of the satisfaction in that regard, however without stating any reasons whatsoever. This assumes importance because S. 20(1) of the Act enjoins that 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. Therefore, the exercise of discretion is a judicial act in terms of that section and that judicial act has to be expressed by stating the reasons which would be discernible from the judgment by a court of appeal if a party were to carry an appeal against the judgment. Without the reasons being expressed by the court of first instance, a court of appeal would be totally handicapped in deciding any appeal against such a judgment and decree." 13. Even the wordings of Section 20(1) of the Specific Relief Act makes it clear that the court is not bound to grant specific performance of a contract merely because it is lawful to do so. The course adopted by the trial court to grant specific performance of the contract is discernible from paragraph 10 of the judgment of the trial court. The trial court has taken the view that once agreement is proved, consequently the plaintiff must be in a position to specifically enforce the contract and there are no compelling circumstances for denying specific performance of the agreement. When the advance amount parted with is very meagre, this Court is of the view that it is an unfair advantage on the part of the plaintiff over the defendants, within the meaning of Section 20(2)(a) of the Specific Relief Act. 14. The trial court has taken the view that there are no compelling circumstances to deny specific performance of the contract and therefore, the plaintiff is entitled to get the contract specifically enforced. That should not have been the attitude of the court in exercising discretion judicially. The court should see whether there are any compelling circumstances to decree specific performance of the contract. Whatever it is, this is not a case wherein there are compelling circumstances to exercise the discretion to decree specific performance of the contract. At the same time, the courts below could have directed the appellants to return the part of consideration with interest at the rate of 6% per annum from the date of agreement. In the result, this Second Appeal is allowed and the judgments and decrees passed by the trial court as well as the lower appellate court are set aside. The specific performance of the contract is denied. The suit is decreed by directing the appellants to return the amount of Rs. In the result, this Second Appeal is allowed and the judgments and decrees passed by the trial court as well as the lower appellate court are set aside. The specific performance of the contract is denied. The suit is decreed by directing the appellants to return the amount of Rs. 5,000/- accepted as part of consideration, with interest at the rate of 6% per annum from 8.11.2005 till date of payment, to the plaintiff. The said amount with interest shall have first charge over the scheduled property. In the nature of this appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed.