SILVEY Vs. ARUN VARGHESE

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Kerala High Court allowing the appeal filed by the respondents who were the plaintiffs in a suit for specific performance of an agreement to sell immovable properties.

(2.) The plaintiffs in a suit for specific performance of an agreement to sell immovable properties are the appellants. The defendants, four in number entered into an agreement for sale of the respective portions held by them under Exhibit A 1 dated 23-2-1986. Thereunder, they agreed to convey to the plaintiffs an extent of 10 acres of property held by the four of them at a price of Rs. 19,750/- per acre. They received an advance of Rs. 50,000/-. The agreement provided that the sale deed was to be executed by 17-4-1986. The defendants were to furnish the plaintiffs with all documents in their possession and power and also furnish tax receipts for taxes paid up-to-date, the registration book for registration as a Rubber Estate with the Rubber Board and the licence for planting rubber plants, get the properties measured by competent persons at the expense of the vendors-defendants in the presence of the plaintiffs-purchasers or their agents. According to the plaintiffs, the defendants were never ready with the requisite documents for executing the sale deed in favour of the plaintiffs and repeated demands by the plaintiffs for execution of the document did not meet with the proper response and, therefore, they had ultimately to send a notice through a lawyer on 16-3-1988 demanding performance and the defendants having failed to respond to that notice, the suit was being filed on 5-7-1988 for specific performance of the agreement for sale. The plaintiffs pleaded that they were and they have always been ready and willing to perform their part of the contract. The defendants filed a written statement contending that the plaintiffs were in default. The plaintiffs never demanded performance of the agreement. The defendants, therefore, were under the impression that the plaintiffs have abandoned the agreement. The defendants have, therefore, effected improvements in the property and the value of the property has increased. It was, therefore, not a fit case where a decree for specific performance should be granted to the plaintiffs. It was pleaded that the plaintiffs were never ready and willing to perform their part of the contract.

(3.) The trial Court held on the materials that time was not the essence of the contract and that the plaintiffs had the requisite capacity to raise funds for the purchase of the property covered by Exhibit A 1. But, the trial Court held that plaintiffs had not taken prompt steps for enforcement of the obligations under Exhibit A 1 agreement for sale. But, it did find that the defendants had not yet obtained the certificates of registration from the Rubber Board as envisaged by the agreement for sale and they had not even obtained possession certificates, since obviously there was considerable dispute about the properties covered in the survey number, of which the plaint schedule properties formed a part. The trial Court stating that in view of the delay in the plaintiffs approaching the Court, the plaintiffs have not shown themselves to be ready and willing to perform their part of the contract and in the matter of exercise of discretion, specific performance should be refused to the plaintiffs since the defendants have, on the basis that the plaintiffs were not any more interested purchasing the property, expended amounts for improvement of the property. Thus staing that the discretion has to be exercised against the plaintiffs, the trial Court dismissed the suit for specific performance. But the trial Court granted a decree for recovery of the advance of Rs. 50,000/-paid by the plaintiffs to the defendants at the time of entering into Exh. A1 agreement along with interest at the rate of 6% per annum thereon from the date of suit till date of realization. It is feeling aggrieved by the refusal to grant the plaintiffs a decree for specific performance that the plaintiffs have filed appeal before the High Court.