BY AD v. SRI.A.PONNU

SRI.A.PONNU (DIED), S/O.ARUMUGHAN, RESIDING AT L.G.PALAYAM, ERATTAKULAM,ELAPPALLY VILLAGE, PALAKKAD TALUK,PALAKKAD DISTRICT. SRI.SUBRAMANIAN, S/O.KANDAN, NADUVIL HOUSE ATHIKODE, PANAYUR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT SMT.DEVAKY, W/O.LATE PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. SRI.RADHAKRISHNAN, S/O.LATE SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. SMT.SOBHANA D/O.SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. SRI.SURESH KUMAR S/O.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. (LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL. R3 TO R6 AS PER ORDER DATED 02/06/2015 IN IA 4480/2004.) A.S.Nos.36 and 38 of 2002 -: 3 :- BY ADVS. SRI.G.SREEKUMAR (CHELUR)- FOR R4 SMT.S.CHITHRA - FOR R3 TO R6 SRI.A.R.GANGADAS – FOR R3 TO R6 SRI.GEORGE KURUVILLA – FOR R3 TO R6 SRI.GEORGE KUTTY MATHEW SRI.T.M.SUNIL FOR R3 TO R6 THIS APPEAL SUITS HAVING COME UP FOR HEARING ON

22.01.2024, ALONG WITH AS.38/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.Nos.36 and 38 of 2002 -: 4 :- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 22ND DAY OF JANUARY 2024 / 2ND MAGHA, 1945 AS NO. 38 OF 2002 AGAINST THE COMMON JUDGMENT AND DECREE DATED 31.05.2001 IN O.S.NO.174 OF 1996 OF THE SUB COURT, PALAKKAD APPELLANT/S: 1 2 3 4 5 6 SMT.KUNHILAKSHMI (DIED), W/O.KARUNAKARAN, RESIDING AT THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTOOR TALUK,PALGHAT DISTRICT. SRI.SAJIVAN (DIED), S/O.KARUNAKARAN THEKKETHARA HOUSE, AMBATTUPALAYAM,CHITTOOR, CHITTOOR TALUK,PALGHAT DISTRICT. SRI.RATHJEEVAN, S/O.KARUNAKARAN THEKKETHARA HOUSE, AMBATTUPALAYAM,CHITTOOR, CHITTOOR TALUK,PALGHAT DISTRICT. JAGATH JEEVAN AGED 56 YEARS, S/O.(LATE)KARUNAKARAN, THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTUR TALUK, PALAKKAD DISTRICT. AMAR JEEVAN, AGED 46 YEARS, S/O.(LATE)KARUNAKARAN, THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTUR TALUK, PALAKKAD DISTRICT. (LEGAL HEIRS OF THE DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL A4 AND ADDL A5 AS PER ORDER DATED 15/12/2017 IN IA 2298/2017 AND IA 2302/2017.) ADDITIONAL A6 TO A8 SOUGHT TO BE IMPLEADED. SHEEBA C.R. AGED 51 YEARS, W/O.SAJEEVAN , RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT. A.S.Nos.36 and 38 of 2002 -: 5 :- 7 8 JITHEESH JEEVAN, AGED 26 YEARS, S/O.LATE SAJEEVAN, RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT. THEJESH JEEVAN, AGED 24 YEARS, S/O. LATE SAJEEVAN , RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT. (LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 6 TO 8 VIDE ORDER DATED 30/7/2019 IN IA 1/2019.) BY ADVS. SRI.M.C.GOPI – FOR A3 TO A8 AJITH VISWANATHAN – FOR A3 RESPONDENTS: 1 2 3 4 5 SRI.A. PONNU (DIED) S/O.ARUMUGHAN, RESIDING AT L.G.PALAYAM, ERATTAKULAM., ELAPPULLY VILLAGE, PALAKKAD TALUK,, PALAKKAD DISTRICT. SRI.SUBRAMANIAN, S/O. KANDAN, NADUVIL HOUSE, ATHIKODE, PANAYUR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. SMT.DEVAKY, W/O.LATE PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. SRI.RADHAKRISHNAN, S/O.LATE SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. SMT.SOBHANA D/O.SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. A.S.Nos.36 and 38 of 2002 -: 6 :- 6 SRI.SURESH KUMAR S/O.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. (LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL.R3 TO R6 AS PER ORDER DATED 02/06/2015 IN IA 4485/2004.) BY ADVS. SRI.G.SREEKUMAR (CHELUR) – FOR R4 SMT.S.CHITHRA – FOR R3 TO R6 SRI.A.R.GANGADAS – FOR R3 TO R6 SRI.GEORGE KURUVILLA – FOR R3 TO R6 SRI.T.C.MOHANDAS – FOR R3 TO R6 SRI.T.M.SUNIL – FOR R3 TO R6 THIS APPEAL SUITS HAVING COME UP FOR HEARING ON

22.01.2024, ALONG WITH AS.36/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = A.S.Nos.36 and 38 of 2002 = = = = = = = = = = = = = = = = = = Dated this the 22nd day of January, 2024 JUDGMENT A.S.No.38 of 2002 arises from O.S.No.174 of 1996, a suit for specific performance. The suit was decreed by the trial court against which the defendants 1 to 3 are in appeal.

2. A.S.No.36 of 2002 arises from O.S.No.547 of

1996. It is a suit for recovery of possession on the strength of title and for damages. The defendants 1 to 3 in O.S.No.174 of 1996 are the plaintiffs in the suit. It is a suit is filed against the plaintiff and the 4 th defendant in O.S.No.174 of 1996. The suit was dismissed by the trial court and the plaintiffs are in appeal.

3. The trial court considered O.S.No.174 of 1996 namely, the suit for specific performance, as the leading case. For the sake of convenience, these appeals are also been considered accordingly. Parties are being A.S.Nos.36 and 38 of 2002 -: 2 :- referred to as per their status in O.S.No.174 of 1996.

4. On 21.05.1987, Ext.A1 agreement for sale was entered into between the plaintiff and the 4th defendant on one part and defendants 1 to 3 on the other part. As per Ext.A1, an extent of 8.98 acres of property out of a larger extent of 9.18 acres was agreed to be conveyed to the plaintiff and the 4th respondent at the rate of Rs.15,000/- per acre. An amount of Rs.50,000/- was paid towards advance sale consideration. The property was in possession of the plaintiff and the 4 th defendant. The period fixed for performance was one year. The ceiling cases pending in respect of the property was to be got disposed of by defendants 1 to 3 in the meanwhile. The period for performance was extended on 20.05.1988 for a further period of two years, which expired on

21.05.1990. The 4th defendant conveyed his rights under the agreement to the plaintiff. Alleging that the defendants are postponing the performance of the A.S.Nos.36 and 38 of 2002 -: 3 :- agreement under one guise or the other, the suit was filed seeking specific performance.

5. The defendants pleaded that the suit is barred by limitation. It was contended that the plaintiff was not ready and willing to go ahead with the transaction. It was also alleged that the plaintiff has committed waste in the property resulting in damages. It was also pleaded that, there has been a steep escalation in the price of the property from the date of Ext.A1 till the date of suit, dis-entitling the plaintiff for the relief of specific performance. In O.S.No.547 of 1996, recovery possession of the property was sought along with damages. The claim was opposed relying on Section 53A of the Transfer of Property Act, 1882.

6. The trial court held that the agreement is liable to be specifically enforced and accordingly, decreed O.S.No.174 of 1996 and dismissed O.S.No.547 of

1996. A.S.Nos.36 and 38 of 2002 -: 4 :-

7. I have heard the learned Senior Counsel, Shri.P.Viswanathan, on behalf of the appellants and Shri.G. Sreekumar Chelur, the learned counsel for the respondents.

8. The points that arise for determination in the appeals are; i) ii) Is the suit for specific performance barred by limitation? On the materials on record is the discretion under Section 20 to be exercised in favour of the plaintiff to grant specific performance ? iii) Was the trial court right in having dismissed the suit for recovery of possession?

9. The main argument of the appellants is that, the suit for specific performance is barred by limitation. The plaintiffs were not ready and willing to go ahead with the transaction. This resulted in the inordinate delay in seeking specific performance of the agreement. The learned counsel for the respondents would on the other hand contend that, the suit has been filed within the stipulated period. The defendants had not A.S.Nos.36 and 38 of 2002 -: 5 :- issued any notice of refusal of performance. In the absence of such notice by the defendants, time would not run, it is contended.

10. Article 54 of the Indian Limitation Act, 1963 reads thus; 54 For speficic performance of a contract Three The date fixed for the performance, or, if no such date is fixed, when the plaintif has notice that performance is refused. Article 54 contemplates two situations, agreements where date for performance is stipulated, and where it is not stipulated. Insofar as the agreements which stipulate the date for performance, the period of limitation starts from the said date. If no such period is specified, then time begins to run from the date on which the plaintiff has notice of the refusal of performance by the defendants. Since no date for performance is specified, the second part applies. A.S.Nos.36 and 38 of 2002 -: 6 :-

11. Therefore, the issue would be as to when the plaintiff had notice of refusal to perform by the defendants. Ext.A4 is the notice dated 17.05.1988 issued by the plaintiff to the defendants, demanding performance of the agreement. It is thereupon, on

20.05.1988, the period for performance was extended for two years. On 06.02.1990, the plaintiff issued Ext.A2 notice demanding performance of the agreement. In Ext.A2, it was demanded that the sale deed shall be executed within a period of 15 days therefrom, failing which the plaintiff will be constrained to file suit and enforce the agreement. Inspite of Ext.A2 notice, the defendants refused to perform. As was noticed, in Ext.A2 notice, it was specifically stated that on expiry of 15 days period from the date of notice, if the defendants do not perform the agreement, legal proceedings will be initiated. Having failed to perform within the period of 15 days stipulated in Ext.A2 notice, it can only be A.S.Nos.36 and 38 of 2002 -: 7 :- understood that the defendants refused to perform and hence, the plaintiff has notice of refusal of performance by the defendants. Therefore, the limitation commenced on the expiry of 15 days from the date of Ext.A2 notice. The suit filed in February, 1996 is thus, barred by limitation.

12. The long delay on the part of the plaintiff in filing the suit tells upon his readiness and willingness to get the transaction through. The trial court has proceeded on the plaintiff's averments that the defendants were assuring performance of the agreement. There is no evidence regarding the same. Therefore, the said finding of the trial court cannot be sustained.

13. While considering the claim for specific performance it is to be noticed that, the plaint schedule property is 9.18 acres. Specific performance is sought in respect of the same. However, Ext.A1 agreement for sale relates only to 8.98 acres out of the larger A.S.Nos.36 and 38 of 2002 -: 8 :- extent of 9.18 acres. The relevant recital in Ext.A1 reads thus, “Xmsg ]-d-bp-ó h-l-I-fnð 8 G-¡À 98 skâ v h-lI-sf Af-óp Xn-«-s¸-Sp-¯n G-¡À H-óp-¡v 15000 I (]-Xn-\-ôm- bn-cw D-dp-¸n-I) -ho-Xw Xo-dv hn-e \n-Ý-bn¨v 1þmw ]mÀ«n 2þmw ]mÀ-«n-¡v Xo-dv sIm-Sp-¸m-\pw.....” Evidently, there is variation in the subject matter in respect of which specific performance is sought. Going by the agreement, the conveyance is to be in respect of a portion of the larger extent of 9.18 acres, namely,

8.98 acres. The parties never contemplated the conveyance of the entire 9.18 acres. What the plaintiff has sought for, expressing his readiness and willingness, is to get conveyance of 9.18 acres scheduled to the plaintiff. This is at variance from Ext.A1 agreement. On the said ground also, the plaintiff is not entitled to get the relief of specific performance. A.S.Nos.36 and 38 of 2002 -: 9 :-

14. The trial court has passed a decree which reads, “Defendants 1 to 3 are directed to execute the sale deed in respect of the plaint schedule property less the extent involved in the land ceiling case pending before the Honourable High Court of Kerala”. This is at variance from the agreement between the parties. The parties never bargained for assignment of property excluding the extent involved in the ceiling case. Therefore the decree is liable to be interfered with.

15. Though escalation in price by itself is not generally a ground to decline the specific performance, in the case at hand, the same is of relevance. Ext.A1 agreement is dated 21.05.1987 and the suit for specific performance has been filed only 06.02.1996. It could not be disputed that during the long duration of almost ten years, there has been steep rise in the prices. The delay was not one that occurred pending the suit but had A.S.Nos.36 and 38 of 2002 -: 10 :- occurred in the very institution of the suit. Therefore, this is also a matter that ought to go into the zone of consideration while considering whether a decree for specific performance is to be granted. Considering the inordinate delay, it is only just to exercise of discretion under Section 20 of the Specific Relief Act to decline the relief of specific performance.

16. The relief of specific performance having been declined for the reasons as above including, on the issue of readiness and willingness, the defendants are entitled for recovery of possession on the strength of title.

17. As regards the claim for damages, there is lack of evidence to find the damages or the quantum of damages. Therefore, a decree is not liable to be granted.

18. On the above discussions, the suit for specific performance is liable to be dismissed and a A.S.Nos.36 and 38 of 2002 -: 11 :- decree granted for recovery of possession on the strength of title. In the result, the appeals are allowed. The decree and judgment of the trial court is set aside. O.S.No.174 of 1996 will stand dismissed and O.S.No.547 of 1996 will stand decreed, allowing the plaintiff therein to recover possession of the plaint schedule property from the defendants. No costs. Sd/- SATHISH NINAN, JUDGE