RAMAKRISHNA PILLAI & ANR.versusMUHAMMED KUNJU & ORS.

                                  (2008] 3 S.C.R. 91
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                           RAMAKRISHNA PILLAI & ANR.                          A
                                         v.
                            MUHAMMED KUNJU & ORS.
                       (Civil Appeal Nos.1396-1397 of 2002)
                               FEBRUARY 20, 2008
                                                                              B
      •         (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.}
     -/-

                  Suit- Suit for specific performance of agreement of sale-
            Dismissal of suit by trial court on the ground of limitation -
            High Court denying the claim on the ground of absence of          c
            plea regarding readiness and willingness of the plaintiff- On
            appeal, held: The plea was specifically taken by the plaintiff
            and the same having not been denied by the defendants,
            finding of High Court is erroneous.
      ~·          Appellants filed two separate suits against the D
            respondents for specific performance of agreement to sell
            the suit properties. Clear averments were made in the
            plaint that they were always ready and willing to perform
            their part of agreement. Respondents-defendants
            contested the suits on the grounds that the agreements E
            were not valid and binding on them and that the suit was
            barred by limitation. They did not deny the plea regarding
            readiness and willingness. Trial Court dismissed the suit
       '
      .;:   on the ground of limitation. On merit, it held that the
            agreements were valid and binding. High Court held that F
            the suit was not barred by limitation and the agreements
            were valid and binding, but dismissed the appeal on the
            ground that no plea was raised regarding readiness and
            willingness and exercise of discretion. Hence the present
            appeals.                                                   G
                 Allowing the appeals, the Court
                 HELD: High Court's judgment is vulnerable. Firstly,
            there was no dispute ever raised by the defendants about
                                       91                            H

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    92       SUPREME COURT REPORTS                  [2008] 3 S.C.R.
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A 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. The trial court in its judgment has referred to
  various portions of the averments in the plaint where the
B 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 in 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
c
  obligation. [Para 4] [95-G; 96-A, B]
        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),
D Manjunath Anandappa v. Tammanasa and Others (2003(10)
  SCC 390) and Pukhraj D. Jain and Ors. v. G Gopala Krishna
    (2004 (7) sec 251) referred to.
        CIVIL APPELLATE JURISDICTION : Civil Appeal
    Nos.1396-1397 of 2002.
E
         From the final Judgment and Order dated 09.07.200·1 of
    the High Court of Kerala at Ernakulam in A.S. Nos. 24 & 42 of
    1993.
                                                                        j.
      T.L.V. Iyer, Jay Kishor Singh, Vivek Gupta and
F Subramonium Prasad for the Appellants.
        C.S. Rajan, A. Raghunath and Romy Chacko for the
    Respondents.
         The Judgment of the Court was delivered by
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           Dr. ARIJIT PASAYAT, J. 1. Challenge in these appeals is
    to thei 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
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        RAMAKRISHNA PILLAI & ANR. v. MUHAMMED KUNJU                  93
 J
                   & ORS. [PASAYAT, J.]
•
       to sell the suit properties. Appellant No.1 is the plaintiff in OS A
       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. B
 •     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
                                                                          c
       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
                                                                           D
 't'   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 E
       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
 J     Rs.15,000/- as the balance consideration. The agreement
       indicated that possession was delivered to appellant No.2.          F

             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
                                                                        G
       was already in possession of the structure as tenant. The terms
       of the agreement i.e. Exh.A1 are similar to those as Exh. 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
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    94        SUPREME COURT REPORTS                    [2008] 3 S.C.R'.
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A there was a dissension amongst the defendants and Defendant
  No.3 filed a suit (OS No. 42of1982) 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
B 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
c 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
D
  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
E 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
                                                                           .,.
F 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 plec;i raised regarding readiness and
G 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
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                                              I
         RAMAKRISHNA PILLAI & ANR. v. MUHAMMED KUNJU                    95
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                    & ORS. [PASAYAT, J.]
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        High Court fell into grave errors by h·ofding that the plea of A
        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 B
•       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 grourid
        which was not raised by the defendants and which was not
        considered by the trial court. It was also pointed out that factually c
        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 D
y
         out that suits were not filed within a reasonable time and the
         subsequent events by considerable effect. It w~s 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 E
         placed on-several decisions of this Court in 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
j
         77), V. Pechimuthu v. Gowrammal (2001 (7) SCC 617),
         Manjunath Anandappa v. Tammanasa and Others (2003(10) F
         SCC 390) and Pukhraj D. Jain & Ors. v. G Gopa/a 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.
                                                                              G
         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
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    96        SUPREME COURT REPORTS                     [2008] 3 S.C.R.


A 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
B 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:

c        "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
D
         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."
E
        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
F 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
G the appellants to move the trial court for necessary steps in that
  regard.
          8. The appeals are allowed without any order as to costs.
    K.K.T.                                           Appeals allowed.
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