http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  1396-1397 of 2002

PETITIONER: Ramakrishna Pillai & Anr.

RESPONDENT: Muhammed Kunju & Ors.

DATE OF JUDGMENT: 20/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

        1.      Challenge in these appeals is to the judgment of a  Division Bench of the Kerala High Court.

2.      Background facts need to be noted in some detail. Two suits were filed for specific performance of agreement  to sell the suit properties.  Appellant No.1 is the plaintiff in OS  No. 11 of 1997 which was filed in the Sub Court Mavelikara on  23.2.1987.  Appellant No. 2 is the plaintiff in OS No. 17 of  1987 which was filed on 28.2.1987. The three defendants were  common to both the suits.  Defendant no.1 is defendant No.2’s  brother’s son and defendant No. 3 is the wife of defendant No.  2.  Defendant No. 3 obtained the property mentioned in the  two suits under an exchange of properties between her and  her husband i.e. defendant no.2.  She mortgaged the  properties to the Kerala Financial Corporation Limited.   Sometime in 1970 defendant No.3 executed a Power of  Attorney in favour of her husband-defendant No.2 authorising  him to deal with the property.  On 17.5.1974 defendant No.2  sold portions of the property to defendant No.1 acting on the  power conferred by the power of attorney vide Exhs. A 8 and A  18.  Subsequently on 12.8.1974, defendant No.3 cancelled the  power of attorney.  In 1979 the defendant No.1 executed a  power of attorney authorising defendant No. 2 to deal with the  property.  On the basis of such power of Attorney he entered  into an agreement with appellant No. 2 on 6.8.1979 to sell 3.5.  cents of the property and the structures for a price of  Rs.32,000/-.  An advance of Rs.10,000/- was paid.   Appellant  No. 2 was then the tenant of the possession of the structure  and had paid Rs.7,000/- as security.  It was agreed that the  amount shall be adjusted against part payment of the price  fixed and appellant No. 2 was to pay Rs.15,000/- as the  balance consideration. The agreement indicated that  possession was delivered to appellant No.2.    On 20.8.1979 defendant No.2 as power of attorney holder  entered into an agreement to sell 7.5 cents of property with  structures to appellant No. 1 for consideration of Rs. 43,500/-,  out of which Rs.27,000/- was paid as advance.  Appellant No.  1 was already in possession of the structure as tenant.  The  terms of the agreement i.e. Exh.A1 are similar to those as Exh.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

A14.  Since defendant no.3 did not discharge the dues to the  Financial Corporation, recovery proceedings were started and  the rent payable by the appellant was attached.  It appears  thereafter there was a dissension amongst the defendants and  Defendant No.3 filed a suit (OS No. 42 of 1982) challenging the  sales made by Defendant No. 2 to defendant No. 1.  The  appellants were not parties to the said suit.   Defendant No. 1  took the stand that the sales in favour of defendant No. 2 as  power of attorney holder was valid and defendant No. 3 was  not entitled to the relief prayed.  Thereafter the dispute was  settled recognizing the rights of defendant No.3.  She  undertook to honour all commitments made by defendant no.  2 in respect of the property.   In 1986 appellants called upon  the defendants to execute the sale deed in their favour.  A  reply was given on 13.11.1986 refusing to execute the sale  deeds.  Two suits were filed, as noted above, for specific  performance.  There were clear averments to the effect that the  appellants were and are always ready and willing to perform  their part of the agreement.  The defendants 1 and 3 contested  the proceedings.  It was their stand that the agreements sued  on, namely Exhs. A 1 and A19 are not valid and binding on  the defendant.  A plea of limitation was also taken.  But there  was no denial to the plea regarding readiness and willingness.  There was specific reference to the earlier disputes between  the defendants. The trial court by judgment and decree dated  19.3.1992 dismissed the suit as barred by limitation after  holding on merits that the agreements are valid and binding  the defendant.  The plaintiffs filed separate appeals in the High  Court. Defendant No.3 also filed separate memo of cross-  objections challenging the trial court’s finding on the valid and  binding nature of the agreements. By the impugned judgment  dated 9.7.2001, the High Court affirmed the trial court’s  finding that the agreement are valid and binding, and also  held that the suits were not barred by limitation.  However the  High Court dismissed the suit on the ground that there was no  plea raised regarding readiness and willingness and exercise of  discretion.  However, the High Court granted a decree for  refund of the amount paid as advance covered by the  agreement, but that no credit was to be given for further  payments of Rs.3,800/- and 4,460/- by the plaintiffs.

3.      Learned counsel for the appellants submitted that the  High Court fell into grave errors by holding that the plea of  readiness and willingness was not raised by the plaintiffs. In  this connection, reference is made to averments in the plaint  as noted in the judgment of the trial court.  Reference was also  made to the issues framed and the written statements filed by  the defendants.  It was pointed out that in the written  statements there was no plea taken by the defendants that  plaintiff was not ready and willing to fulfil their part of the  obligation.  It was, therefore, submitted that the High Court  non suited the plaintiffs on a ground which was not raised by  the defendants and which was not considered by the trial  court.  It was also   pointed out that factually the High Court  was wrong in holding that no plea in that regard was taken.

4.      Learned counsel for the respondent on the other hand  submitted, that while considering a case of this nature, the  parameters of Section 20 have to be kept in view.  It is pointed  out that suits were not filed within a reasonable time and the  subsequent events by considerable effect. It was submitted  that the High Court has rightly held that there was no  material to show that at all relevant points of time the plaintiff  was ready and willing to fulfill their part of the obligation.   Reference was placed on several decisions of this Court in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

support of the stand e.g. K.S. Vidyanadam and others v.  Vairavan (1997(3) SCC 1), K. Narendra v. Riviera Apartments  (P) Ltd. (1999(5) SCC 77), V. Pechimuthu v. Gowrammal  (2001(7) SCC 617), Manjunath Anandappa v. Tammanasa and  Others (2003(10) SCC 390) and Pukhraj D. Jain & Ors. v. G.  Gopala Krishna (2004 (7) SCC 251).  There can be no quarrel  with the position in law urged by learned counsel for the  respondent about the parameters to be considered while  dealing with a suit for specific performance. But the High  Court’s judgment is clearly vulnerable.  Firstly, there was no  dispute ever raised by the defendants about the readiness and  willingness of the plaintiffs to fulfill their obligations. The High  Court was clearly in error in holding that no plea regarding  readiness and willingness was raised. As noted above, the trial  court in its judgment has referred to various portions of the  averments in the plaint where the plaintiffs had categorically  stated that they were and are always willing to fulfill their part  of the obligations.  The High Court also failed to notice that  there was no plea either the written statement  or in the cross  objections filed in the appeal before the High Court that the  plaintiffs were not ready and willing to fulfill their part of the  obligation.

5.      The conclusions of the High Court are to the following  effect:

"Then the question is whether the respective  plaintiffs have pleaded and proved that they  were always ready and willing to perform their  part of the contracts.  Even though time did  not start to run on the expiry of two months  from the dates of the agreements, certainly,  the plaintiffs were aware that the defendants  had to discharge their obligation and get a  release of the mortgage in two months of the  dates of the agreements.  Until the sending of  the notices preceding the suits, there is  nothing to show that the plaintiffs at any time  called upon the defendants to perform their  part of the contract."

6.      The conclusions are clearly contrary to the pleadings of  the plaintiffs.  It was categorically stated in the plaint in both  the suits that the plaintiffs are always ready and willing to  fulfill their part of the obligations and that defendants were  evading the execution for one reason or the other.  

7.      Above being the position, the appeals deserve to be  allowed, which we direct.  The respondents shall execute the  sale deed after receiving the balance of the consideration  within a period of three months. If that is not done it shall be  open to the appellants to move the trial court for necessary  steps in that regard.

8.      The appeals are allowed without any order as to costs.