Sanchayita Lahkar

The High Court of Kerala Single Bench of Justice C. Pratheep Kumar held that the plaintiff was always ready and willing to perform his part of the contract and upheld the decree of specific performance passed by the trial court. The court directed dismissal of the appeal filed by the defendants challenging the trial court judgment that ordered execution of the sale deed as per the agreement. The court recorded that the agreement was not terminated and that failure to frame an issue on maintainability was not fatal in the facts of the case. The appeal was accordingly dismissed with costs, and pending interlocutory applications were closed.

The matter arose from a suit for specific performance filed by the plaintiff based on a sale agreement dated 15.1.2007 (Exhibit A1) executed with the defendants for sale of 11.77 cents of property for a consideration of Rs.10.75 lakhs. On the date of agreement, the plaintiff paid an advance of Rs.2,00,000/-. As per the terms, a further amount of Rs.3,00,000/- was to be paid within one month, and the balance within three months along with execution of sale deed. The plaintiff paid Rs.2,75,000/- on 29.1.2007, Rs.25,000/- on 14.2.2007, and Rs.75,000/- on 27.3.2007, making a total payment of Rs.5,75,000/- by that date.

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The property was mortgaged to a bank at the time of agreement, and the defendants had to redeem the mortgage before registration. The mortgage was redeemed on 12.4.2007 and release deed registered on 25.4.2007. The plaintiff issued Exhibit A2 lawyer’s notice on 4.5.2007 calling upon execution of the sale deed within seven days. The defendants sent Exhibit A3 reply notice on 17.5.2007 stating that the agreement had expired but giving another opportunity to complete registration on 25.5.2007 if the plaintiff came with the prepared sale deed and balance consideration of Rs.5,00,000/-.

The plaintiff sent a telegram on 23.5.2007 (Exhibit A8) confirming readiness and waited at the Sub Registrar’s office on 25.5.2007 with the balance amount and prepared sale deed on stamp paper worth Rs.1,45,200/-. The defendants did not turn up. The plaintiff later sought refund of stamp duty and filed the suit for specific performance on 29.5.2007. The trial court decreed the suit, ordering execution of the sale deed.

In appeal, the defendants contended that time was of essence, the plaintiff was not ready with the balance amount within the stipulated period, and absence of a prayer for declaration regarding termination rendered the suit not maintainable. The defendants argued that the trial court failed to frame an issue on maintainability and that there were contradictions in plaintiff’s version regarding arrangement of funds.

The plaintiff argued that time was not of essence, that he was ready and willing throughout, and the conduct of parties extended the period. He submitted evidence of payments, preparation of sale deed, purchase of stamp paper, presence at Sub Registrar’s office, and bank withdrawals to prove readiness and willingness.

The court recorded that on the date of execution of Exhibit A1 on 15 January 2007 itself, the plaintiff paid Rs.2,00,000 as advance.

As per the terms of Exhibit A1, the plaintiff was required to pay a further sum of Rs.3,00,000 within one month from the date of the agreement, that is, before 15 February 2007, and it was admitted that the plaintiff paid this amount by 14 February 2007.

Before the stipulated date, on 27 March 2007, the plaintiff paid another Rs.75,000 to the defendants, making the total payment Rs.5,75,000. From Exhibit B5 receipt issued from the bank, it was seen that the defendants redeemed the mortgage on 12 April 2007 and the release deed was registered only on 25 April 2007.

In Exhibit A3 reply dated 17 May 2007, the defendants specifically stated that if the plaintiff came to the Sub Registrar’s office with the prepared sale deed and balance sale consideration, they would be ready to execute the sale deed.

On 23 May 2007, the plaintiff sent a telegram to the defendants, which was received by them on 24 May 2007. It was also revealed from Exhibits A7, A10 and A11 that the plaintiff was present in the Office of the Sub Registrar, Chevayoor, on 25 May 2007 with Rs.5,00,000.

Even then, the defendants did not turn up before the Sub Registrar’s office to receive the balance sale consideration and to execute the sale deed as promised in Exhibit A3. The court recorded that from the conduct of the defendants it was clear that they were not ready and willing to perform their part of the agreement.

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By the acts of the parties, the period of Exhibit A1 was extended at least up to 25 May 2007. The court recorded that in this case, Exhibit A1 agreement was not terminated on 15 April 2007 as contended by the appellants.

It was held that the failure of the trial court to frame an issue regarding the maintainability of the suit and a decision thereon was not at all fatal. On perusal of the entire evidence on record, it was seen that the plaintiff was always ready and willing to perform his part of the contract, and the same could not be performed due to the default of the defendants alone.

The court issued the following directive: “In the result, this appeal is dismissed with costs.”

“All pending interlocutory applications shall stand closed.”

Advocates Representing the Parties

For the Petitioners: Sri. M.V. Bose, Sri. Vinod Madhavan, Smt. P.M. Mazna Mansoor, Smt. Nisha Bose, Advocates
For the Respondents: Sri. T. Krishnanunni (Senior Advocate), Shri. C. Dilip, Sri. Vinod Ravindranath, Smt. M.R. Mini, Sri. Ashwin Sathyanath, Sri. K.C. Kiran, Smt. Meena A., Shri. Anish Antony Anathazhath, Advocates

Case Title: Vimala Sneham (Died) & Ors v. Babu Joseph
Neutral Citation: 2025:KER:42781
Case Number: RFA No. 725 of 2008
Bench : Justice C. Pratheep Kumar