Kappad RFA

IN THE COURT OF THE SUBORDINATE JUDGE OF
KOYILANDY
OS 71 OF 2008
1. T Vrij Mohan
2. M/s P V S Apartments Plaintiffs
1. T K Vasudevan Nair
2. T K Janardanan Nair
3. T K Rugminidevi Amma
4. T K Girija Amma Defendants
5. T K Sasidharan Nair
6. T K Ramadevi Amma
7. T K Radhakrishnan Nair
8. T K Jayalakshmi Amma
9. T K Sreekumaran Nair
10. T K Sarojini Amma
Plaint presented under Section 26 read with

Order 7 Rule 1 of the Code of Civil Procedure
1. The first plaintiff, Hindu Makkathayee, aged 45,

son of the late T Balan, has his permanent
residence at Arjuna, in Puduppanam Amsom of
Vatakara Taluk in Kozhikode District. The second
plaintiff is a registered partnership firm having its
office at Y M C A Road, Calicut represented by its
Managing Partner P V Gangadharan
2. Defendants, 1 to 8, Hindu Nairs, aged 64, 62, 60,
58, 55, 54, 53, and 49, respectively, are the
children of the late Gopalan Nair and have their
permanent residence at Thekke Mokkatavath
house, in Thiruvangoor Amsom of Koyilandy Taluk
of Kozhikode District. The ninth and tenth
defendants, aged 74 and 76 respectively, are also
the children of Gopalan Nair [by his first wife]. The
ninth defendant is living in Krishnalayam, in
Thiruvangoor Amsom of Koyilandy Taluk. The tenth
defendant is residing in Ponnur in Avaitanallur
Amsom of Koyilandy Taluk. Address for service on
the parties is the same.
3. Defendants 1 to 8 entered into an agreement dated
01-05-2007 to sell the property detailed in the
schedule below to the first plaintiff or his nominee
for a consideration of Rs.16,000 per cent, and the
exact extent of the property was to be determined
by actual measurement based on the title deeds of
the said defendants.
4. As advance towards the sale consideration, the
sum of Rs. Three Lakhs was paid to defendants 1
to 8 along with the agreement, followed by another
Rs Three Lakhs on 11-08-2007, and Rs. Eight Lakhs
on 26-10-2007. all in cash, as well as Rs. 12 Lakhs
by cheque on 26-10-2007, making in all the sum of
Rs. Twentysix Lakhs, duly endorsed on the reverse
side of the first page of the agreement.
5. Copies of the title deeds, were made available to
the first plaintiff by February 2008, and on scrutiny
by the legal advisers of the plaintiffs, the following
anomaly was noticed in the title and extent of the
property agreed to be sold by defendants 1 to 8:
[a] In the 1961 partition between Gopalan Nair and
son Sreekumaran Nair, only 3.84 acres was
allotted to Gopalan Nair in three Thaks, measuring
5 x 47, 29 x 66½ and 50 x 49 six feet Koles. [and
the balance 2.62 out of their joint acquisition in
1953 was allotted to Sreekumaran Nair]
[b] Gopalan Nair died on 13-06-1971 leaving behind,
his two children by the first wife, the second wife,
and 8 children in the second wife.
[c] By SMC 2843 of 1975, the Panthalayani Land
Tribunal appears to have assigned the jenm right
over 3.70 acres to Narayanikkutty Amma [Gopalan
Nair's second wife], Sarojini, [daughter of Gopalan
Nair by his first wife], Janardanan, Saseendran,
Rugmadevi, Girija, Rama, Jayalakshmi,
Radhakrishnan, and Vasu [children of Gopalan Nair
in his second wife]. The name of Sreekumaran Nair
is omitted in the order and Pattayam. The name of
the 5th defendant is written as Saseendran in the
Pattayam though it is written properly in the order.
Pattayam is granted only for 3.70 acres instead of
3.84 allotted to Gopalan Nair in the 1961 partition.
[d] In the 1982 partition, between the legal heirs of
Gopalan Nair, his two children by the first wife are
seen to have been allotted plots 3 and 2
respectively measuring 53¾ cents each totalling to
1.07½ acres; Gopalan Nair's 8 children by his
second wife, are seen to have been allotted plots 4
to 12. The total area of plots 4 to 12 works out to
4.30 acres [made up of 53¾ + 53¾ +53¾ +53¾
+53¾ +53¾ +53¾ + 36¼ + 17½ cents], so that the
property of Gopalan Nair expands from 3.70 acres
to 5.37½ acres [1.07½ + 4.30].
[e] If the plots allotted to the children of Gopalan
Nair by the first wife having an area of 1.07½ acres
is deducted from the total area of 3.70 for which
Pattayam was obtained, the balance area will only
be 2.62½ acres. Even if the area of Gopalan Nair's
share is adopted as 3.84 acres as shown in the
1961 partition deed, the balance area claimable by
defendants 1 to 8 will only be 2.76½ acres.
6. The sale agreement by defendants 1 to 8 is in

respect of items 4 to 12 of the 1982 partition deed,
having a documentary area of 4.30 acres, while
Gopalan Nair had rights only over 3.70 acres
according to the Pattayam, and 3.84 according to
the 1961 partition deed. Defendants 1 to 8 wanted
time to explain this glaring inconsistency but in
spite of four months, no satisfactory explanation
was forthcoming from them.
7. The first plaintiff has come to know that the

second defendant has executed a sale deed for 20
cents from his plot and the 4th defendant has
assigned 10 cents from her plot, even before the
sale agreement to the first plaintiff. Deducting the
area of these sale deeds, the area available for
sale by defendants 1 to 8 will only be 2.36½ acres.
8. There are no visible boundaries for the property of

defendants 1 to 8, except a lane/drain on the
eastern side, to separate the same from the
surrounding lands, and hence identification of the
actual available area is not possible, except
through a commissioner appointed by the court.
9. In view of the necessity for the identification of the

property of defendants 1 to 8 on ground and the
confusion in the area shown in the partition deed,
defendants 9 and 10, who are the other children of
Gopalan Nair, and who have inherited rights from
him are also added as pro forma parties to this
suit, only to facilitate proper identification of the
property of defendants 1 to 8, and no relief is
sought against defendants 9 and 10.
10. The first plaintiff was ready and willing to perform
his part of the contract at all times after the
execution of the sale agreement, and continues to
be ready and willing to pay the price on centage
basis, on determination of the actual area of the
property belonging to defendants 1 to 8
11. The first plaintiff demanded specific performance

of the agreement, by execution of the sale deed in
favour of the plaintiff's nominee M/s PVS
Apartments, by written notice, to which defendants
1 to 8 have arranged to send a reply refusing to
perform their part of the contract, alleging breach
by the first plaintiff.
12. The cause of action for this suit arose on 01-05-

2007 when the sale agreement was executed, on
10-06-2008 when the first plaintiff demanded
specific performance naming the second plaintiff
as his nominee, in July 2008 when the first plaintiff
received the reply notice and thereafter within the
jurisdiction of this court in Edakkulam Amsom of
Koyilandy Taluk where the property is situated.
13. Valuation for jurisdiction and court fee is as

follows:
Estimated consideration @ Rs.16,000 per cent
for the documentary area of 4.30 acres
Rs. 68,80,000-00
Valuation for jurisdiction Rs.
68,80,000-00
Court fee payable under section of the

C F & S V Act Rs.
5,68,800-00
Court fee paid u/S 4A Rs.
56,880-00
Balance fee payable Rs.
5,11,920-00
PRAYER
The plaintiffs therefore pray for a decree for specific

performance of the sale agreement dated 01-05-2007
by execution of the sale deed by defendants 1 to 8 in
favour of the second plaintiff, and for possession, in
respect of the property really belonging to defendants
1 to 8, the actual extent of which is to be determined
by the Court, based on the title deeds of defendants 1
to 8 and located by the issue of a commission.
1.
.
2.
We, the plaintiffs in the suit do hereby declare that the

facts stated above are true to the best of our
knowledge, information and belief.
Dated July 2008
1.
2.
Plaintiffs
List of Documents
1. 01-05-2007 Original sale agreement between

the first plaintiff
and the defendants, with endorsement of
payments
2. 10-06-2008 True copy of notice sent by P1 to
defendants
3. 24-06-2008 Reply notice received by the first
plaintiff
4. 04-12-1953 Copy of sale deed to Gopalan Nair
and another
5. 05-09-1961 Copy of partition deed between
Gopalan Nair and
his son by first wife, Sreekumaran Nair
6. 15-09-1976 Copy of the Order of Panthalayani
Land Tribunal
7. 22-01-1977 Pattayam issued by Panthalayani
Land Tribunal
8. 09-12-1982 Copy of Partition deed between
defendants &
Other legal heirs of deceased Gopalan
Nair
9. 07-12-1985 True copy of sale deed by second
defendant
Dated July
2008
Advocate for
Plaintiffs
KOYILANDY
OS OF 2008
T Vrij Mohan and another Plaintiffs
T K Vasudevan Nair and others Defendants
Affidavit of the First Plaintiff
I, T Vrij Mohan, aged ….., son of the late T Balan,

having my family residence at Arjuna, in Puduppanam
Amsom of Vatakara Taluk, and having come to
Kozhikode now, do hereby solemnly affirm and state
as follows:
1. I am the first plaintiff in the suit and I am filing this

affidavit on behalf of the second plaintiff also. The
suit is for specific performance of the agreement
by defendants 1 to 8 to sell the plaint schedule
property to me or to my nominee. The plaint may
be read and treated as part of this affidavit.
2. From the refusal of defendants 1 to 8 to comply

with my notice, I apprehend that on coming to
know of this suit, the defendants are likely to
create documents of sale or antedated
agreements to defeat or delay the execution of the
decree likely to be passed in this suit. Both
plaintiffs are bound to suffer irreparable injury in
such a case which cannot be monetarily
compensated, in view of two circumstances: [a]
the peculiar coastal proximity of the land, adding
special attraction to the prospects of the proposed
apartment complex and independent villas which
the second plaintiff planned to build therein and [b]
the phenomenal rise in prices of landed property
throughout Kerala in the past couple of years.
3. It is therefore essential in the interests of justice

that this Honourable court may be pleased to pass
an order pending trial of the suit restraining the
respondents [defendants 1 to 8 in the suit] from
executing any documents of sale or agreements
antedated or post dated in respect of the plaint
properties and to pass an ex parte interim order to
the same effect till the disposal of this application.
The facts stated above are true to the best of my

knowledge, and information , and the inferences made
therein are true to the best of my belief.
Dated July
2008
Literate deponent, personally known to me,
solemnly affirmed and signed this on …….
day of July 2008 at Calicut
Deponent
B G Bhaskar. Advocate . Calicut . 2

KOYILANDY
OS OF 2008
I. A. OF 2008
1. T Vrij Mohan Petitioners

3. T K Rugminidevi Amma Respondents
Application submitted by B G Bhaskar, Advocate for

Petitioners under Order 39 Rules 1 and 2 r/w S. 151 of
the Code of Civil Procedure
For the reasons stated in the accompanying affidavit

it is prayed that this Honourable Court may be
pleased to pass an order of temporary injunction,
pending trial of the suit, restraining the respondents
[defendants 1 to 8 in the suit] from inducting third
parties in possession or executing any documents of
sale or agreements antedated or post-dated, in
respect of the plaint properties and to pass an ex
parte interim order to the same effect till the disposal
of this application.
Dated July 2008
Advocate for Petitioners

KOYILANDY
OS OF 2008

as follows:

2. I am filing an application for a temporary injunction
and also seeking ex parte interim orders in the
suit. It is therefore essential in the interests of
justice that this Honourable Court may be pleased
to pass an order directing the office to receive the
plaint and accompanying applications urgently and
number them out of order.

Dated July
2008
day of July 2008 at Calicut,
Deponent

KOYILANDY
OS OF 2008
I. A. OF 2008


Petitioners
under S. 151 of the Code of Civil Procedure

pleased to pass an order directing the office to
receive the plaint and accompanying applications
urgently and number them out of order.
Dated July
2008
Advocate for
Petitioners
KOYILANDY
OS OF 2008

as follows:

2. The facts stated in the plaint are true to my
knowledge and information; the inferences made
therein are true to the best of my belief. The
documents listed and produced I believe are true
copies of the originals.

Dated July
2008
Deponent

Filed on : ………………….
S Ky
IN THE COURT OF
THE
SUBORDINATE JUDGE
OF KOYILANDY
A.A I. A. of 2004 of
2014
-------------------------------------
7
-------
PETITIONERS
T. VRIJ MOHAN AND

ANOTHER
By Advocates B. G.
Bhaskar
And K B
Jayakumar
RESPONDENTS
T. K. VASUDEVAN NAIR AND

OTHERS
Application to receive
documents on the side
of the plaintiff
Hg: 24-02-2014
KOYILANDY
OS OF 2008

as follows:

2. This court has granted an ex parte interim
injunction in my favour by order dated 31-07-2008
in I A of 2008. Friday the 1 st of August is a
holiday.
3. In compliance with Order 39 Rule 2 I have arranged
for the despatch of the required copies to the
respondents in the injunction application.
Dated 2nd August
2008
day of August 2008 at Calicut
Deponent

BEEGEE & ESSBEE
B. G. Bhaskar B.Sc. B.L. Subin B.
Babu B.A. [Law]
Ph & Fx 0495 2 701414 Ph:
0495 2 701654
ADVOCATES. BEMPLASSERI. THALI. KOZHIKODE 673 002
E. MAIL: BEEGEEBEE@ REDIFFMAIL.COM
The DGM Legal,

KTC Group.
Madam,
Sub: Kappad Suit – Balance court fee –
stamp papers
Commission application -
Ref: O S 71 of 2008 Sub Court, Koyilandy
Madam,
1. The stamp papers for a total value of Rs.5,12,000
[made up of 20 sheets of Rs.25,000 each, 2 sheets
of Rs.5000 each and two sheets of Rs.1000 each]
are enclosed. Please arrange to have them sent to
our Koyilandy Advocate Mr K B Jayakumar so as to
reach him by 10 a.m tomorrow. The papers have to
be produced in court by 11 a.m.
2. I am also enclosing an affidavit [in two pages] and

a work memo [in two pages] which are to be got
signed by Mr Vrij Mohan. These papers may be
returned to me after getting them signed by Mr Vrij
Mohan. These papers are required for the filing of a
commission application to identify the property.
Dated 29th October

2008
Copy to:
The VP, PVS Apartments
KOYILANDY
OS 71 OF 2008
as follows:
2. The defendants have filed written statements
without controverting the specific allegations in
the plaint but vaguely asserting that they have
right to the property included in the 1982 partition
deed, which has visible boundaries according to
them.
3. For deciding the suit, it is necessary to determine
the correct identity, measurements and boundaries
of the property set apart to the share of late
Gopalan Nair in the 1961 partition and to ascertain
whether the division of the property in the partition
between the defendants tallies with the property
so allotted to Gopalan Nair.
4. It is therefore necessary in the interests of justice
that this Court may be pleased to pass an order
appointing a commissioner to inspect the plaint
schedule properties, to submit a plan drawn to
scale and a report on all aspects of the matter
detailed in the accompanying work memo.
List of documents
Work memo submitted by the plaintiffs
Dated October
2008
day of October 2008 at Calicut,
Deponent
KOYILANDY
OS 7 1 OF 2008
I. A. OF 2008


Petitioners
under O 26 R 10 r/w S. 151 of the Code of Civil
Procedure
pleased to pass an order directing the appointment of
a commission to conduct a local inspection of the
plaint schedule properties, with the assistance of the
Taluk Surveyor, and submit a plan drawn to scale as
well as a report on all aspects of the matter detailed
in the accompanying work memo.

Dated
2008

KOYILANDY
OS 71 OF 2008
Work Memo submitted by Plaintiffs
1. The Commissioner is requested to identify the

property purchased by Gopalan Nair in 1953
covered by Document No 4 in the plaint list, with
reference to the boundaries, measurements and
survey.
2. After determining the said property, the

commissioner is requested to locate the property
set apart to Gopalan Nair, as well as the property
set apart to his son Sreekumaran Nair, with
reference to the survey divisions, and boundaries,
as well as verifying the EW and NS measurements
as shown in the partition deed dated 05-09-1961
produced with the plaint;
3. The Commissioner is then requested to determine

the boundaries, survey divisions and
measurements of the several plots allotted to all
the several executants of the partition deed dated
09-12-1982, and demarcate the portions sold by
two of the defendants to strangers.
4. The commissioner is requested to ascertain

whether the different plots allotted to the parties
in the partition deed dated 09-12-1982 correspond
exactly to or are in excess of the property allotted
to Gopalan Nair in the 1961 partition.
5. The commissioner is requested to report whether
there are visible boundaries to the different plots
and for the whole property involved in the 1982
division, and whether they tally with the
boundaries shown in the 1961 and 1982 deeds
6. The commissioner is requested to state

specifically any difference or alteration in the
survey sub-divisions, measurements, or boundaries
of all or any of the plots in the two partition deeds
when verified on ground.
7. The Commissioner is requested to ascertain and

report the accss to the property from the main
road, showing its position, width and length from
the main road, as well as the nature of the way,
[whether metalled, tarred etc] and the
embankments of the way.
8. The commissioner is requested to submit two

separate plans drawn to the same scale showing
the total property involved in the 1961 and 1982
partition deeds.
Dated October
2008
Advocate for Plaintiffs First Plaintiff

KOYILANDY
OS 71 OF 2008

as follows:

2. While re-affirming that the plaintiffs were ready
and willing to perform the buyers' bargain, and
that the suit was necessitated only by the failure
of the sellers to explain the patent lack of title
over the property, the plaintiffs are entitled in law
to seek amendment of the plaint, purely as an
alternative remedy, asking for award of
compensation and return of the advance paid.
3. The amendments sought for are : the addition of
Para 11A and 11B, the addition of the Prayers B
and C after numbering the existing prayer as A, and
consequential changes in the valuation portion
instead of the existing valuation portion as
detailed below:
11A ; If for any reason this court feels that

specific performance cannot be granted to the
plaintiffs, they are entitled to get refund of [the
advance paid] Rs. 26 Lakhs with interest @12%
from the date of payment and Rs. 28,00,000 [280
x 10000] as damages as alternative relief
11B. Since defendants 1 to 8 were unable to

explain the patent defect in title [apparent from
the back documents], the plaintiffs are entitled to
get in addition to the specific performance of the
sale agreement, the sum of Rs. 24,32,000 [152 x
16000] as compensation from defendants 1 to 8
allowing the plaintiffs to set off the same from out
of the balance consideration payable to
defendants 1 to 8.
New para 13 to be substituted for existing para 13:

Rs. 68,80,000-00
68,80,000-00
Court fee paid u/S 42 of the C F & S V Act
Rs. 5,68,800-00
Valuation for alternative relief in Prayer B

Being refund of advance Rs.27 Lakhs and
Damages of Rs.28,00,000 Rs.
55,00,000-00
Court fee payable u/S 22 for the said amount
Rs.
Since main relief is valued higher than the

alternative prayer, court fee already paid is
sufficient
Prayer B : In the alternative direct defendants 1

to 8 to refund the advance amount of Rs. 27
Lakhs with future interest @12% per annum and
the sum of Rs. 28,00,000 [10000 x 280] as
damages and
Prayer C : In addition to prayer A, direct

defendants 1 to 8 to pay the sum of Rs. 24,32,000
[152 x 16000] by way of compensation to the
plaintiffs, `allowing set off of the said amount
from the balance consideration payable by the
plaintiffs

Dated July
2008
Deponent

KOYILANDY
OS 71 OF 2008
I. A. OF 2009


Petitioners under Sections 22 & 21 of Specific Relief
Act read with
Order 6 Rule 17 and S. 151 of the Code of Civil
Procedure

pleased to pass an order allowing the addition and
substitution to the plaint as detailed below
After existing para 11 add:
11A ; If for any reason this court feels that specific

performance cannot be granted to the plaintiffs, they
are entitled to get refund of [the advance paid] Rs. 26
Lakhs with future interest @12% from date of suit and
Rs. 28,00,000 [280 x 10000] as damages as
alternative relief from defendants 1 to 8
11B. Since defendants 1 to 8 were unable to explain
the patent defect in title [apparent from the back
documents], the plaintiffs are entitled to get in
addition to the specific performance of the sale
agreement, the sum of Rs. 24,32,000 [152 x 16000] as
compensation from defendants 1 to 8 allowing the
plaintiffs to set off the same from out of the balance
consideration payable to defendants 1 to 8.
New para 13 to be substituted for existing para 13:

Rs. 68,80,000-00
68,80,000-00
Court fee paid u/S 42 of the C F & S V Act
Rs. 5,68,800-00

Being refund of advance Rs.27 Lakhs and
Damages of Rs.28,00,000 Rs.
55,00,000-00
Court fee payable u/S 22 for the said amount

Rs.

sufficient
Add Prayer B after renumbering existing prayer as A :

In the alternative direct defendants 1 to 8 to refund
the advance amount of Rs. 27 Lakhs with future
interest @12% per annum and pay the sum of Rs.
28,00,000 [10000 x 280] as damages to the plaintiffs
and
Add Prayer C : In addition to prayer A, direct
defendants 1 to 8 to pay the sum of Rs. 24,32,000 [152
x 16000] by way of compensation to the plaintiffs,
`allowing set off of the said amount from the balance
consideration payable by the plaintiffs
Dated July 2008

KOYILANDY
OS 71 OF 2008

as follows:

2. The plaintiffs had filed I A 1592 of 2009 in the suit

for the issue of a commission to locate and
measure the property over which defendants 1 to 8
have valid title. Against the dismissal of that
application, the plaintiffs preferred WP [C] 8066 of
2009. in the order dated 16-06-2009 in the writ
petition, that the plaintiffs can seek appointment
of a commission, if suitable amendment is made to
the plaint to satisfy the conditions in S. 12 of the
Specific Relief Act. The copy of the order in the
writ petition was received by the counsel of the
plaintiffs only on 27-06-2009. Hence this
application to amend the plaint explaining the
applicability of S. 12 to justify the already existing
prayer for part performance.
3. The plaint already contains detailed averments

regarding the deficiency in title of defendants 1 to
8 over the extent of land agreed to be sold, which
came to the knowledge of the plaintiffs on
examination by their legal advisor, of the back title
deeds which were made available to them long
after the execution of the sale agreement.
Obviously the sellers cannot convey non-existent
title and hence if the actual extent of land over
which they have title is less than the area agreed
to be sold, it comes squarely within the ambit of
the clause “unable to perform the whole” in S. 12
[2] and 12 [3] of the Specific Relief Act. The
plaintiffs will then be entitled to pay for the actual
area over which the sellers have title as they are
ready and willing to pay the price fixed in the
agreement on centage basis. If the part which
cannot be performed forms a considerable part of
the whole, the plaintiffs are willing to relinquish
claims to such part and all right to compensation.
4. The plaintiffs are also advised that if for any

reason the court feels that specific performance of
the sale agreement cannot be granted they are
entitled in the alternative to claim return of the
advance amount paid with interest and damages.
5. The required amendment to be made in the
existing plaint is the addition of new paragraphs
10A, 10B and 11A, the substitution of para 13 and
the addition of prayer B as detailed below :
10A. Since it is apparent from the back title deeds,

that defendants 1 to 8 are not having valid title to
the whole area agreed to be sold by them, it is
obvious that they are unable to perform the whole
sale agreement. Whether the part that cannot be
performed vis-à-vis the part capable of being
performed is a considerable part of the whole will
depend on the actual area over which the sellers
have title. The plaintiffs are thus entitled to seek
specific performance of such part of the contract
as the sellers are able to perform.
10 B. The agreement pertains to the sale of land

and the price agreed upon, being not in lump but
pro rata on centage basis, the deficiency is
certainly capable of being compensated in terms of
money. The plaintiffs hereby affirm that they are
willing to relinquish all claims for performance of
the part incapable of being performed by the
sellers [in respect of the deficient area] and are
also willing to give up all claims for compensation
for the part left unperformed.
11A. If for any reason this court feels that specific

performance cannot be granted to the plaintiffs,
defendants 1 to 8 are liable to refund to the
plaintiffs the advance paid [Rs. 26 Lakhs] with
interest @12% from the date of payment and
damages estimated at Rs. 28 Lakhs as an alternate
relief
13. Valuation for court fee and jurisdiction is as

follows:

for the documentary area of 4.30 acres Rs.
68,80,000-00
68,80,000-00
Court fee paid u/S 42 of the C F & S V Act Rs.
5,68,800-00

being refund of advance Rs.26 Lakhs and
damages of Rs.28,00,000 Rs.
54,00,000-00
Court fee payable u/S 22 for this amount Rs.
4,50,400-00
sufficient
Prayer B : In the alternative direct defendants 1 to
8 to refund the advance amount of Rs. 26 Lakhs
with future interest @12% per annum and damages
estimated at Rs. 28,00,000
Dated July
2009
Deponent

KOYILANDY
OS 71 OF 2008
I. A. OF 2009


Petitioners
under Order 6 Rule 17 of the Code of Civil Procedure
read with Sections 12 and 22 of Specific Relief Act

it is prayed that this Court may be pleased to pass an
order allowing amendment of the plaint by addition of
paragraphs 10 A, 10 B and 11A, substitution of para 13
and addition of prayer B to the plaint as detailed
below:
10A. Since it is apparent from the back title deeds,

performed is a considerable part of the whole will
depend on the actual area over which the sellers
have title. The plaintiffs are thus entitled to seek
specific performance of such part of the contract
as the sellers are able to perform.
10 B. The agreement pertains to the sale of land
and the price agreed upon, being not in lump but
pro rata on centage basis, the deficiency is
certainly capable of being compensated in terms of
money. The plaintiffs hereby affirm that they are
willing to relinquish all claims for performance of
the part incapable of being performed by the
sellers [in respect of the deficient area] and are
also willing to give up all claims for compensation
for the part left unperformed.
performance cannot be granted to the plaintiffs,
defendants 1 to 8 are liable to refund to the
plaintiffs the advance paid [Rs. 26 Lakhs] with
interest @12% from the date of payment and
damages estimated at Rs. 28 Lakhs as an alternate
relief
follows:
68,80,000-00
68,80,000-00
5,68,800-00
54,00,000-00
4,50,400-00
sufficient
Prayer B : In the alternative direct defendants 1 to

8 to refund the advance amount of Rs. 26 Lakhs
with future interest @12% per annum and damages
estimated at Rs. 28,00,000
List of Documents
1. 16-06-2009 True copy of order in WP [C] 8066 of
2009
Dated July
2009
Advocate for
Petitioners
AIR 2008 SUPREME COURT 1205
"Balasaheb Dayandeo Naik v. Appasaheb Dattatraya Pawar"
(From : Bombay)
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Civil Appeal No. 647 of 2008 (arising out of SLP (C) No. 16694 of
2005), D/- 24 -1 -2008.
Balasaheb Dayandeo Naik (Dead) Through L.Rs. and Ors. v.
Appasaheb Dattatraya Pawar,
(A) Specific Relief Act (47 of 1963), S.12 - Contract Act (9 of

1872), S.55 - CONTRACT - AGREEMENT TO SELL - EXECUTION -
SALE DEED - Specific performance - Suit for - Agreement to sell -
Defence that time was essence of contract and plaintiff failed to
pay within time - Agreement though specified time for execution
of sale deed - Stipulation for forfeiture of earnest money in event
of failure to execute sale deed also made - Indicates that time
was never intended by parties to be of essence - Defendant could
not substantiate plea that time was essence of contract and that
it was plaintiffs who avoided to perform their part - Plaintiffs are,
therefore, entitled to decree.
1997 AIR SCW 956, Disting.
(2004) 8 SCC 689, 1993 AIR SCW 1371, Relied on.
F.A. No. 743 of 1993. D/-11-1-2005 (Bom), Reversed. (Paras 10,
12, 13, 14)
(B) Specific Relief Act (47 of 1963), S.22 - CONTRACT - DECREE -
Specific performance - Suits for - Prayer for refund of earnest
money - Plaintiff is entitled to seek alternative relief of refund of
earnest money in event decree for specific performance cannot
be granted for any reason. (Para 13)
Cases Referred : Chronological Paras

(2004) 8 SCC 689 (Rel. on) 11
1997 AIR SCW 956 : AIR 1997 SC 1751 (Disting.) 12
1993 AIR SCW 1371 : AIR 1993 SC 1742 (Rel. on) 9, 13
AIR 1988 SC 1074 9
AIR 1977 SC 1005 9
AIR 1967 SC 868 9
Makarand D. Adkar, Vijay Kumar and Vishwajit Singh, for

Appellants; V.N. Ganpule, Sr. Advocate, S.B. Meitei, Naresh
Kumar Gaur and Ashok Kumar Singh with him, for Respondent.
Judgement
1. P. SATHASIVAM, J. :-Leave granted.
2. This appeal is directed against the judgment and order dated

11-01-2005 passed by the High Court of Judicature at Bombay in
First Appeal No. 743 of 1993 in and by which the High Court set
aside the decree for specific performance granted by the trial
Court and consequently dismissed the suit of the plaintiffs.
3. Brief facts in a nutshell are :

The appellants/plaintiffs in Special Civil Suit No. 320 of 1988 filed
the same for specific performance of agreement dated 31-07-
1985. According to the plaintiffs, the respondent
herein/defendant is the owner of land Block No. 208 and Block
No. 209 respectively admeasuring Area H. 0.60 R and H. 0.40 R of
Village Nagaon in Hatkanangale Tahsil. The defendant had
entered into an agreement for sale of the said lands to the
plaintiffs for a consideration of Rs. 85,000/ - per acre. The
agreement was reduced into writing and according to the terms
of the agreement, the sale deed was to be executed by the
defendant within a period of six months. It was agreed that
possession of the lands was to be delivered at the time of
execution of sale deed. The defendant has also undertaken the
responsibility of obtaining necessary permission for sale of the
lands, if required. On the date of execution of the agreement, an
amount of Rs. 20,000/- was paid by the plaintiffs to the defendant
as earnest money and balance amount of the consideration was
to be paid at the time of execution of the sale deed. The plaintiffs
were always ready and willing to perform their part of the
contract but the defendant avoided to receive the balance
amount of consideration and neglected to execute the sale deed.
The plaintiffs sent a legal notice on 16-07-1988 to the defendant
through their advocate calling upon him to perform his part of the
obligation under the contract. In spite of the notice, the
defendant did not comply with the requirements which
necessitated the plaintiffs to file the suit for specific
performance or in the alternative refund of earnest money with
interest thereon @ 15% per annum.
4. The defendant filed a written statement wherein he denied the
plaintiffs claim.
@page-SC1206 It was further stated that though agreement for
sale of the suit lands was entered into between him and the
plaintiffs on 31-07-1985, the sale deed was to be executed within
a period of six months from the date of contract as he was in dire
need of money for construction of his house and, therefore, the
time was the essence of the contract. He had called upon the
plaintiffs to pay the balance amount of consideration and get the
sale deed executed. But the plaintiffs were not in a position to
arrange the balance amount of consideration and complete the
contract. As the market price of the agricultural lands have now
gone up, the plaintiffs by purchasing the suit lands are intending
to dispose of the same to others at a higher price. In view of the
same, the plaintiffs are not entitled to discretionary relief of
specific performance of contract.
5. The learned Civil Judge (Senior Division), on 23-02-1993, after

finding that the defendant has failed to prove that time was the
essence of contract and the plaintiffs were and are ready and
willing to perform their part of contract decreed the suit as
prayed for. Aggrieved by the aforesaid judgment of the trial
Court, the defendant filed First Appeal No. 743 of 1993 before the
High Court of Judicature at Bombay. The learned Single Judge of
the High Court not in agreement with the conclusion of the trial
Court and finding that plaintiffs failed to substantiate their plea
allowed the appeal of the defendant and dismissed the suit.
Questioning the judgment and order of the High Court, the
plaintiffs have filed the present appeal by way of special leave.
During the pendency of the appeal before this Court, Balasaheb
Dayandeo Naik/first plaintiff died and his legal representatives
were brought on record as per order dated 19-09-2006 in I.A. No.
3 of 2005.
6. We heard Mr. Makarand D. Adkar, learned counsel appearing

for the appellants and Mr. V.N. Ganpule, learned senior counsel
appearing for the respondent, perused the entire annexures and
other relevant materials filed before this Court.
7. Having regard to the terms of agreement of sale dated 31-07-

1985, reasonings of the trial Court as well as the High Court and
submissions before this Court, only two points arise for
consideration of this Court, namely, (a) whether time is the
essence of the contract? and (b) whether the plaintiffs were
ready and willing to perform the contract ?
8. In order to find an answer to the above questions, it would be

useful to refer the relevant recitals from the agreement of sale.
Para 3 of the agreement specifically mentions the details of the
land sought to be sold such as extent and boundaries. It also
refers the easement rights and the period in which the sale has
to be completed. The recital reads as under :-
"From the total consideration I have received Rs.20,000/- as an
earnest money of which no independent receipt is necessary.
Rest of the amount is to be paid by you at the time of sale deed
of the said lands. It is agreed between the parties that the sale
deed is to be executed within 6 months from today. Possession
of the land is to be handed over at the time of sale deed."
It is also relevant to mention the default clause which reads as
under :-
"For completion of the sale deed the permission is required to be
obtained by me. If I fail to execute the said deed within
stipulated period then you have to get it executed on the basis of
this agreement. On the contrary if you fail to get execute the sale
deed then this agreement is supposed to be cancelled and the
earnest amount will be forfeited. The land is free from all sorts of
encumbrances. This agreement is binding on myself and my legal
heirs etc. dated 31-7-1985."
The above-mentioned details in the agreement of sale clearly
show a) that the subject-matter of the property is an agricultural
land/immoveable properties b) the sale deed is to be executed
within six months from the date of sale agreement i.e. 31-07-
1985. c) possession of the land to be handed over at the time of
execution of sale deed d) failure to get execute the sale deed,
the earnest money will be forfeited. With these factual details, let
us consider the legal principles enunciated by this Court.
9. In Chand Rani (Smt.) (dead) by L.Rs. Vs. Kamal Rani (Smt.)

(dead) by L.Rs., (1993) 1 SCC 519, a Constitution Bench of this
Court has held that in the sale of immoveable property, time is
not the essence of the contract. It is worthwhile to refer the
following conclusion :1993 AIR SCW 1371, Paras 18, 20 and 22
"19. It is a well-accepted principle that in the case of sale

of immovable property, time is never regarded as the
essence of the contract. @page-SC1207 In fact, there is a
presumption against time being the essence of the
contract. This principle is not in any way different from
that obtainable in England. Under the law of equity which
governs the rights of the parties in the case of specific
performance of contract to sell real estate, law looks not
at the letter but at the substance of the agreement. It has
to be ascertained whether under the terms of the contract
the parties named a specific time within which completion
was to take place, really and in substance it was intended
that it should be completed within a reasonable time. An
intention to make time the essence of the contract must
be expressed in unequivocal language."
"21. In Govind Prasad Chaturvedi v. Hari Dutt Shastri

(1977) 2 SCC 539 following the above ruling it was held at
pages 543-544: (SCC para 5) AIR 1977 SC 1005 at pp.
1007-08 It is settled law that the fixation of the period
within which the contract has to be performed does not
make the stipulation as to time the essence of the
contract. When a contract relates to sale of immovable
property it will normally be presumed that the time is not
the essence of the contract. [Vide Gomathinayagam Pillai
v. Pallaniswami. Nadar (a p. 233).] It may also be
mentioned that the language used in the agreement is not
such as to indicate in unmistakable terms that the time is
of the essence of the contract. The intention to treat time
as the essence of the contract may be evidenced by
circumstances which are sufficiently strong to displace
the normal presumption that in a contract of sale of land
stipulation as to time is not the essence of the contract."
AIR 1967 SC 868 at p. 871
23. In Indira Kaur (Smt.) v. Sheo Lal Kapoor (1988) 2 SCC

488 in paragraph 6 it was held as under : AIR 1988 SC
1074, Para 6
"... The law is well-settled that in transactions of sale of

immovable properties, time is not the essence of the
contract."
10. It is clear that in the case of sale of immoveable property,

there is no presumption as to time being the essence of the
contract. Even where the parties have expressly provided that
time is the essence of the contract, such a stipulation will have
to be read along with other provisions of the contract. For
instance, if the contract was to include clauses providing for
extension of time in certain contingencies or for payment of fine
or penalty for every day or week, the work undertaken remains
unfinished on the expiry of the time provided in the contract,
such clauses would be construed as rendering ineffective the
express provision relating to the time being of the essence of
contract. In the case on hand, though the parties agreed that the
sale deed is to be executed within six months, in the last
paragraph they made it clear that in the event of failure to
execute the sale deed, the earnest money will be forfeited. In
such circumstances, the above-mentioned clauses in the last
three paragraphs of the agreement of sale would render
ineffective the specific provision relating to the time being the
essence of contract.
11. This Court in Swarnam Ramachandran (Smt.) and Another vs.

Aravacode Chakungal Jayapalan, (2004) 8 SCC 689 has once
again reiterated that time is not the essence of contract relating
to immoveable property. The following statement of law in para
12 are rightly applicable to the case on hand :
"12. That time is presumed not to be of essence of the

contract relating to immovable property, but it is of
essence in contracts of reconveyance or renewal of lease.
The onus to plead and prove that time was the essence of
the contract is on the person alleging it, thus giving an
opportunity to the other side to adduce rebuttal evidence
that time was not of essence. That when the plaintiff
pleads that time was not of essence and the defendant
does not deny it by evidence, the court is bound to accept
the plea of the plaintiff. In cases where notice is given
making time of the essence, it is duty of the court to
examine the real intention of the party giving such notice
by looking at the facts and circumstances of each case.
That a vendor has no right to make time of the essence,
unless he is ready and willing to proceed to completion
and secondly, when the vendor purports to make time of
the essence, the purchaser must be guilty of such gross
default as to entitle the vendor to rescind the contract."
12. As observed in the said decision, in the case on hand the

appellants/plaintiffs clearly established their claim to secure
specific performance of the agreement by leading cogent
evidence whereas the respondent 1997 AIR SCW 956 @page-
SC1208 defendant having pleaded that time was the essence of
the contract neither entered the witness box nor led any
evidence whatsoever. The High Court lost sight of the above
material aspect and the conduct of the defendant in not
strengthening his plea by placing acceptable evidence. In such
circumstances, as rightly argued by learned counsel for the
appellants, the High Court should have confirmed the decree of
specific performance granted by the trial Court. On the other
hand, the High Court wrongly placed reliance on the decision of
this Court in K.S. Vidyanadam and Others vs. Vairavan, (1997) 3
SCC 1 as in the facts of that case, this Court found that granting
for specific performance was inequitable, however such aspect
of the matter was totally absent in the case on hand. Even
otherwise, para 11 of the judgment shows that the subject-
matter of the property was an urban immoveable property and in
such special circumstance relaxed the general rule that time is
not the essence of the contract in the case of immoveable
properties. In the case on hand, the details furnished in the
agreement clearly show that the subject-matter of the property is
an agricultural land situated in Kolhapur Dist., Maharashtra. In
such circumstances, the decision in K.S. Vidyanadam and Ors.
(supra) is not applicable to the facts on hand. In the facts of the
present case, which we have already adverted to, neither the
terms of agreement nor the intention of the parties indicate that
the time is an essence of the agreement. We have already
pointed that having raised such a plea the respondent even did
not bother to lead any evidence.
13. It is true that the defendant in his written statement has

made a bald claim that the time was the essence of contract.
Even if we accept the recital in the agreement of sale (Exh. 18)
that the sale deed has to be executed within a period of six
months, there is an express provision in the agreement itself that
failure to adhere the time, the earnest money will be forfeited. In
such circumstances and in view of recital pertaining to forfeiture
of the earnest money makes it clear that time was never
intended by the parties to be of essence. The Constitution Bench
decision in Chand Rani vs. Kamal Rani (supra) also makes it clear
that mere fixation of time within which contract is to be
performed does not make the stipulation as to the time as the
essence of contract. Further, we have already pointed out that
the defendant has not bothered to prove his claim on oath before
the Court to the effect that it was the plaintiffs who avoided
performing their part of contract. All the abovementioned
material aspects were correctly appreciated by the trial Court
and unfortunately the High Court failed to adhere to the well
known principles and the conduct of the defendant. When the
third plaintiff deposed before the Court explaining their case with
reference to the recitals in the agreement of sale including the
reference to the legal notice to the defendant, in the absence of
contra evidence on the side of the defendant, we are unable to
agree with the conclusion arrived at by the High Court in
nonsuiting the plaintiff. The High Court commented the conduct
of the plaintiffs in praying for refund of the earnest money,
namely, Rs.20,000/- paid as advance. As rightly pointed out, the
claim for refund of earnest money is only their alternative claim.
It is not in dispute that in all suits for specific performance, the
plaintiff is entitled to seek alternative relief in the event the
decree for specific performance cannot be granted for any
reason, hence there is no infirmity in the alternative plea of
refund. 1993 AIR SCW 1371
14. In the light of what has been stated above, we set aside the
judgment and decree of the High Court and confirm the decree
granted by the trial Court. In view of the said conclusion, the
appellants/plaintiffs are directed to deposit the balance amount
of sale consideration i.e., Rs. 1,92,500/- in the trial Court within a
period of eight weeks whereupon the respondent/defendant shall
execute the sale deed of the suit lands Block No. 208
admeasuring 0.60 R and Block No. 209 admeasuring 0.40 R of
Village Nagaon, Tahsil Hatkanangale as per the agreement dated
31-07-1985. In case of failure of the defendant to execute the
sale deed, the plaintiffs shall be entitled to get the sale deed
executed through Court.
15. The civil appeal is allowed on the above terms. However, in

the facts and circumstances of the case, there shall be no order
as to costs. Appeal allowed.
"P. C. Varghese v. Devaki Amma Balambika Devi"
= 2005 AIR SCW 5622
(From : (2000)3 Ker. L. T. 330)
Coram : 2 S. B. SINHA AND R. V. RAVEENDRAN, JJ.
C. A. No. 1984 of 2002, D/- 7 -10 -2005.
P. C. Varghese v. Devaki Amma Balambika Devi and
others.
(A) Specific Relief Act (47 of 1963), S.12(3), S.20 - CONTRACT -

AGREEMENT TO SELL - DECREE - "Unable to perform whole of
contract" - Agreement to sell property - Nowhere stating that in
event permission to sell minor's share was not obtained within
period specified therein, same shall become invalid or otherwise
unenforceable in law - Application for grant of permission to sell
minor's share rejected only during pendency of suit - Contract
thus not contingent contract - Vendors having definite share in
property excluding minor's share - It was not composite contract
- Decree for specific performance of contract regarding vendors
excluding share of minor can be passed - Moreso, when
purchaser relinquished his claim in respect of property belonging
to minor by way of amendment. (2000) 3 Ker L T 330, Reversed
Contract Act (9 of 1872), S.35. (Paras 19, 34, 38)
(B) Specific Relief Act (47 of 1963), S.20 - CONTRACT - DECREE -

Alternative plea - For refund of earnest amount and damage -
Cannot itself be bar to claim decree for specific performance of
contract. (Para 32)
(C) Specific Relief Act (47 of 1963), S.22(1)(a) - CONTRACT -

DECREE - PARTITION - POSSESSION - Decree for partition and
separate possession of property - Can be granted in addition to
decree for specific performance of contract. (Para 34)
(D) Civil P.C. (5 of 1908), O.1, R.9 - CIVIL PROCEDURE - APPEAL -

PARTITION - CONTRACT - DECREE - MINORITY AND
GUARDIANSHIP - Proper party - Appeal - Suit for specific
performance and partition - Decree for partition attaining finality -
Decree for specific performance passed by trial Court only as
regards separate shares of some of defendants - No decree for
specific performance passed against some of defendants i.e. as
regards undivided share of minor in property and his guardian -
Such defendants however, bound by decree passed by trial Court
- Appeal - Minor defendant and his guardian are proper parties
though not necessary parties. (Para 36)
(E) Specific Relief Act (47 of 1963), S.22 - PARTITION -

CONTRACT - DECREE - Suit for specific performance and partition
- Relief in terms of S. 22 incidental or ancillary to main relief of
specific performance of contract and in @page-SC146 addition
thereto - Ordinarily, proceeding for grant of final decree for
partition should be initiated after sale deed in terms of decree for
specific performance of contract is executed and registered and
not vice-versa. (Para 37)
Cases Referred : Chronological Paras

(2005)5 SCC 142 26
2004 AIR SCW 4135 : (2004)6 SCC 537 27
2001 AIR SCW 3198 : (2001)8 SCC 173 25, 26
1994 AIR SCW 4729 : (1994)4 SCC 18 24
AIR 1990 SC 854 : (1990)3 SCC 517 26
AIR 1982 SC 818 : (1982)1 SCC 525 34
AIR 1954 Trav Co 10 12, 31
AIR 1947 PC 182 12, 30
John Mathew, Sr. Advocate M. T. George and Ms. Sumathi,

Advocates, with him, for Appellant; V. R. Reddy and T. L. V. Iyer,
Sr. Advocates C. N. Sree Kumar, Ms. Deepa S. Monappan and
Subramonium Prasad Advocates, with them, for Respondents.
Judgement
S. B. SINHA, J. :- The First Respondent herein is the wife of K.R.

Narayana Pillai (Respondent No.5). Respondent Nos. 2 and 3 are
daughters of the First and the Fifth Respondent herein. The
Fourth Respondent was their minor daughter. 15 cents out of the
land in question measuring 19 cents were obtained by
Respondent Nos.1 to 3 by reason of a partition under deed
No.1598 of 1973. As Respondent No.4 was born subsequent to
the execution of the said deed of partition, she became entitled
to a one-fourth share in 15 cents which comes to 3.75 cents. The
balance 4 cents absolutely belonged to the First Respondent on
the death of one Narayana Pillai and Devaki Amma. Respondent
Nos.1 to 3 and 5 agreed to sell the said property to the Appellant
herein, wherefor an agreement of sale was executed on 13-09-
1980 in his favour. In terms of the said agreement, a sum of
Rs.5,05,000/- was fixed as total consideration; and a sum of
Rs.10,000/- was received by the Respondents by way of advance.
The agreement contained a condition that the Respondents
would obtain requisite permission from the appropriate court for
sale of the minor's share therein. Such permission was to be
obtained within a period of three months which was also the
period fixed for performance of the terms of the agreement.
However, an extension thereof had been granted. The Appellant
made several requests to the Respondents to perform their part
of contract. According to him, the Respondents had deliberately
been delaying the disposal of the application for obtaining the
aforementioned permission. A letter was also sent to the Fifth
Respondent requesting him to get the sale deed executed at
least with regard to the shares of Respondent Nos.1 to 3 on
receipt of proportionate amount of consideration and to execute
the sale deed relating to the minor's share after such permission
was obtained.
2. The Respondents, however, did not perform their part of

contract. The Appellant deposited a sum of Rs.5,00,000/- in his
name and in the names of his wife and children in fixed deposit
No.28517-57-81 dated 03-08-1981 in the Federal Bank Limited. He
also served a registered notice through his advocate asking the
Respondents to execute the sale deed, in respect whereto a
reply was sent by the Respondents stating that the sale deed can
be executed only after obtaining the permission from the Court.
3. The Appellant filed the suit against the Respondent Nos. 1 to 5
herein, inter alia, for a decree of specific performance of contract
in respect of the said agreement of sale in respect of the entire
19 cents. He also made an alternative prayer, as per para 23C
praying that if specific performance could not be granted in
regard to entire extent, he may be allowed to take a sale deed in
respect of the share of Defendants 1 to 3 and may be allowed to
recover possession of that much property from defendants
through Court.
4. It is, however, not in dispute that during the pendency of the

suit, the application filed for obtaining permission for sale of
minor's share was dismissed. The Appellant thereafter filed an
application for amendment of plaint praying for substitution of
prayer 'C'. The application for amendment was allowed and
amended prayer 'C' reads as under :
"C- If for any reason this Hon'ble Court finds prayers A and B
cannot be allowed as such, the plaintiff may be allowed to take a
sale deed of the share of defendants 1 to 3 in the plaint schedule
property, through court, in the name of his wife and children
@page-SC147 as mentioned above. And for that purpose pass a
preliminary decree to divide the aforesaid 15 cents in the
schedule property separating the 3/4th share of the defendants 1
to 3 from the 1/4th share of the minor 4th defendant by metes
and bounds and allowing plaintiff to recover possession of the
four cents belonging to the first defendant and 3/4th share of
defendants 1 to 3 in the 15 cents on payment by the plaintiff of
the consideration agreed in the agreement for sale less the
proportionate value of his minor's share."
5. The Respondents in their written-statement raised a

contention that the Civil Court having refused to grant permission
to sell the minor's share, performance on their part became
impossible. It was further contended that the purpose for
agreeing to sell the property was for meeting the marriage
expenses of the Third Respondent but as Respondent Nos. 1 and
5 were able to meet the expenses therefor without selling the
property, the very purpose thereof became futile.
6. The learned Trial Judge in view of the rival contentions of the

parties framed as many as seven issues. Issue Nos. 5 and 7 read
as under :
"(5) Is not a plaintiff entitled to specific performance of the
agreement of sale dated 13-09-1980 ?
(7) Whether the Specific Performance of the part of the
agreement is allowable ?"
7. The suit filed by the Appellant herein was decreed by the Trial
Judge in the following terms :
"In the result, a preliminary decree for partition is passed on the
following terms :
(1) The 3/4th share of the property of the defendants 1 to 3 shall
be partitioned from the 15 cents of property which belongs to
defendants 1 to 4 as also the 4 cents absolutely belongs to the
first defendant.
(2) The plaintiff is allowed to apply for passing a Final Decree for
effecting the partition of 3/4th share in the 15 cents of property.
(3) The plaintiff is also allowed to apply for issue of a
Commission to effect partition of - share of defendants 1 to 3 in
15 cents of property and to ascertain the value of 1/4th share of
the minor 4th defendant in the 15 cents of property.
(4) The defendants 1 to 3 are directed to execute the sale deed
for their 3/4th share in 15 cents plus 4 cents when they will be
allotted their shares in the final decree on receiving the sale
consideration minus the value of the share of the minor 4th
defendant which was ascertained in the Final Decree
Proceedings within two months from the date of passing the
Final Decree.
(5) The plaintiff is directed to deposit the sale consideration as
per the terms of the contract deducting the proportionate value
of the minor's share within two months from the date of the final
decree.
(6) In case defendants 1 to 3 failed to execute the sale deed for
the property allotted to them in the final decree within two
months from the date of passing final decree after paying the
proportionate sale consideration.
(7) The plaintiff is allowed to get the document executed for 19
cents of property as scheduled in the plaint as stated above
through court and plaintiff is also entitled to get delivery of that
property from the defendant in execution of this decree.
(8) In the circumstances of the case both parties are directed to
suffer their respective costs."
8. The Original Defendant Nos.4 and 5 did not prefer any appeal
against the said judgment and decree. The Respondent Nos.1 to
3 herein only preferred an appeal. A cross-appeal was also filed
by the Plaintiff-Appellant.
9. The High Court allowed the appeal preferred by Respondent

Nos.1 to 3 herein holding that the contract being an integrated
one, the conditions mentioned therein as regard obtaining the
necessary permission from the Civil Court relating to minor's
share was an essential term for execution of the contract and
since such permission had not been granted, the entire contract
failed. The Appellant is, thus, before us.
10. As Respondent Nos. 4 and 5 were not parties to the appeal

before the High Court, they were not impleaded as parties;
subsequently an application for impleading them was filed. The
said application was allowed. However, an application has been
filed by the said added Respondents contending that they have
unnecessarily been impleaded as parties. @page-SC148
11. Mr. John Mathew, the learned Senior Counsel appearing on

behalf of the Appellant, would submit that having regard to the
facts and circumstances of this case, the High Court committed
a manifest error in misreading and misinterpreting the agreement
of sale dated 13-09-1980.
12. Section 12 of the Specific Relief Act, the learned counsel

would contend, enables the court to grant a decree in respect of
a part of contract in a case where party to a contract is unable to
perform the whole of his part of it. He contended that the High
Court, therefore, wrongly reversed the judgment and decree of
the Trial Court relying on Delsukh M. Pancholi v. The Guarantee
Life and Employment Insurance Co. Ltd. and Others [AIR 1947 PC
182] and T.V. Kochuvareed and Another v. P. Mariappa Gounder
and Others [AIR 1954 Travancore-Cochin 10], holding that the
condition as regard obtaining permission from the Civil Court was
a condition precedent.
13. Mr. Mathew would urge that the findings of the High Court
cannot be sustained in view of the
fact that out of 19 cents only 3.75 cents came to the share of the
minor and, thus, the provision of Section 12(3) of the Specific
Relief Act was clearly attracted.
14. Mr. V.R. Reddy, the learned Senior Counsel appearing on

behalf of the Respondent Nos.1 to 3, would submit that the
contract in question is a contingent one and in view of the fact
that application for obtaining permission to sell the share of the
minor was sought for and refused, the entire agreement became
unenforceable in law. In any event, the learned counsel would
contend, the discretionary relief under Section 20 of the Specific
Relief Act should not granted in favour of the Appellant herein.
15. Mr. T.L.V. Iyer, the learned Senior Counsel appearing on

behalf of the added Respondents, (Respondent Nos.4 and 5),
would submit that Respondent Nos. 4 and 5 have unnecessarily
been added in the instant case.
16. The property belonged to Respondents Nos.1 to 4.

Respondent No.5 being the father of Respondent No.4, who was a
minor at the relevant time, executed the agreement on her
behalf. The said agreement was entered into by the Respondent
Nos. 1 to 3 on their own behalf and by
Respondent No.5 as the guardian of the minor Respondent No. 4.
17. In terms of the said agreement, the Respondents agreed :

(i) to satisfy the purchaser about their title in respect of the
property and also clear any encumbrance certificate, if found on
verification;
(ii) ascertain the extent of the property by measuring it and if
there was any deficiency, agree for deduction of proportionate
consideration;
(iii) put up a wall separating the boundary at the entrance,
(iv) change the names and enter new names in revenue records;
(v) comply with all formalities which they were required to do
under the law;
(vi) obtain guardian and ward certificate, clearance certificate,
permission of Town Planning Authority etc.;
(vii) secure the amount of consideration payable to the minor in
terms of the guardian and ward certificate which was to be
obtained on application filed by Respondent No.5;
(viii) receive the balance consideration and on the date specified
by the Appellant, appear before the Sub-Registrar and register
the deed of sale.
18. It was further stipulated that in the event, the Respondents

failed to register the sale deed in terms of the said agreement,
the Appellant would be entitled to deposit in the court the
balance consideration after adjusting the amount of advance; file
a suit and obtain a decree for specific performance.
19. We fail to understand as to how the agreement for sale can

be said to be a contingent contract, as was submitted by Mr.
Reddy. The agreement nowhere states that in the event the
permission to sell the minor's share is not obtained within the
period specified therein, the same shall become invalid or
otherwise unenforceable in law. The application for grant of
permission to sell the minor's share, as noticed hereinbefore,
was rejected only during the pendency of the suit.
20. It may be true that the agreement was to be performed within

a period of three months, but it was extended. The Appellant
herein not only in the suit but also even prior thereto asked the
Respondents herein by a @page-SC149 notice dated 23-03-1981
(Ex. P-2) to execute a deed of sale in relation to the shares of
Respondent Nos.1 to 3 herein i.e. excluding the share of the
minor, stating :
"Even now I stick on to this suggestion and am prepared to
purchase the remaining portion of the property minus the minor's
share and is prepared to purchase the minor's share also after
obtaining the permission from court.
It is further strange to see that in your letter under reference you
have only invited my attention to the aforesaid suggestion of
mine without specifically, unambiguously stating whether you
are prepared the suggestion and if so on which date the
document can be executed for the remaining share of the
property after deducting the minor's share. So kindly inform me
whether you accept the aforesaid suggestion and if so, on which
date we can execute the document. In that case let the court
take its own time to grant the permission certificate and after
you obtain the said certificate from the court, I will purchase the
minor's share also. Further I request you to extend the period of
agreement in writing."
21. In reply to the said notice, the Respondent No.5 contended

that as the share of the Fourth Respondent was not demarcated,
the Appellant will have to wait till the required documents from
the authorities are obtained. Thereafter, another legal notice was
issued on 31-07-1981 asking the Respondents to execute the sale
deed in his favour and his nominee failing which a legal
proceeding shall be initiated for specific performance of the said
agreement for sale. It is not in dispute that the Appellant was all
along ready and willing to perform his part of contract.
22. Sub-section (3) of Section 12 of the Specific Relief Act, 1963

(for short "the Act") was enacted with a view to meet such
eventualities when the whole of the contract cannot be
performed, by the vendor. It reads as under :
(3) Where a party to a contract is unable to perform the whole of
his part of it, and the part which must be left unperformed either-
(a) forms a considerable part of the whole, though admitting of
compensation in money; or
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but
the Court may, at the suit of the other party, direct the party in
default to perform specifically so much of his part of the contract
as he can perform, if the other party-
(i) in a case falling under clause (a), pays or has paid the agreed
consideration for the whole of the contract reduced by the
consideration for the part which must be left unperformed and a
case falling under clause (b), [pays or had paid] the consideration
for the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claims to the performance of
the remaining part of the contract and all right to compensation,
either for the deficiency or for the loss or damage sustained by
him through the default of the defendant."
23. The said provision has been enacted for the benefit of the
purchaser and, thus, cannot operate to his detriment. We may
notice that under the old Specific Relief Act, the Plaintiff was not
only required to relinquish his claim of specific contract as
regard that part of the contract which cannot be performed but
also was required to pay the entire amount of consideration;
whereas in terms of Section 12(3) of the new Specific Relief Act,
1963 he is now required to pay the amount of consideration
proportionately.
24. .In Sardar Singh v. Krishna Devi (Smt.) and Another [(1994) 4
SCC 18], it was held : 1994 AIR SCW 4729, Para 15
"The house being divisible and the appellant being not a

consenting party to the contract, equity and justice demand
partial enforcement of the contract, instead of refusing specific
performance in its entirety, which would meet the ends of
justice"
25. .In Rachakonda Narayana v. Ponthala Parvathamma and

Another [(2001) 8 SCC 173], Khare, J., the learned Chief Justice
as he then was, observed : 2001 AIR SCW 3198, Para 7
"Thus, the ingredients which would attract specific performance

of the part of the contract, are: (i) if a party to an agreement is
unable to perform a part of the contract, he is to be treated as
defaulting party to that extent, and (ii) the other party to an
agreement must, in a suit for such specific performance, @page-
SC150 either pay or has paid the whole of the agreed amount, for
that part of the contract which is capable of being performed by
the defaulting party and also relinquish his claim in respect of
the other part of the contract which the defaulting party is not
capable to perform and relinquishes the claim of compensation in
respect of loss sustained by him. If such ingredients are
satisfied, the discretionary relief of specific performance is
ordinarily granted unless there is delay or laches or any other
disability on the part of the other party."
26..In Surinder Singh v. Kapoor Singh (Dead) through LRs. and

Others [(2005) 5 SCC 1`42], (wherein Dharmadhikari, J. was a
member) a three- Judge Bench of this Court on a reference made
on the purported conflict in Kartar Singh v. Harjinder Singh
[(1990) 3 SCC 517] and Rachakonda Narayana (supra), opined :
AIR 1990 SC 854
"In this case, the Division Bench of the High Court passed a
decree of specific performance of contract relying on or on the
basis of a decision of this Court in Kartar Singh.". AIR 1990
SC 854
27. .Strong reliance, however, has been placed by Mr. Reddy on

HPA International etc. v. Bhagwandas Fatehchand Daswani and
Others etc. [(2004) 6 SCC 537]. Therein, Dharmadhikari, J. in the
facts and circumstances of the case held : 2004 AIR SCW 4135
"70. There was one integrated and indivisible contract by the

vendor to convey full interest in the property i.e. his own life
interest and the interest of the reversioners with sanction of the
Court. As the Court had not granted the sanction, the contract
could not be specifically enforced. The lesser relief of transfer of
life interest was not claimed within a reasonable time after the
vendor had intimated that the contract, as agreed for full
interest, was not possible of performance. We find that neither
equity nor law is in favour of the plaintiff vendee."
28. Therein, in the agreement not only the interest of the vendor
in presenti but also the interest of the remaindermen or
reversioners after his death was the subject matter of contract.
The agreement was furthermore subject to the passing of the
vendor's title to the property and of the vendor's right to sell the
entire interest, present and future in the property by the
purchaser's advocate. We may also notice that in that case one
of the terms contained in the agreement for sale was :
"6. In case sanction of the Court is not accorded as aforesaid,
this agreement shall forthwith stand cancelled and the vendor
shall forthwith return the advance amount of rupees twenty-five
thousand to the purchaser."
29. A perusal of the said decision clearly shows that conduct of

the plaintiff therein was such which precluded him from
obtaining a decree for specific performance of contract. In the
aforementioned facts and circumstances of the case, it was held
that recession of contract due to non- grant of sanction by the
Court within the stipulated period was not an act of breach of
contract on the part of the vendor. The said decision has no
application in the facts and circumstances of this case.
30..In Dalsukh M. Pancholi (supra), two questions were posed by

the court : (a) was the term "subject to the court's approval" an
essential term of the agreement?, and (b) if it was essential, by
whose default did it fail? Therein, in the facts of the case, the
Privy Council opined that the approval of the attaching Court was
insisted on as a necessary condition for effecting the sale, for
without it the title to the property was not at all safe. Once such
condition was found to be essential one, the contract was held to
be a composite contract. However, in that case, the vendor
therein was not in a position to convey his own interest in the
property without the court's sanction and the contract. In the
facts and circumstances of the case, the Defendant Nos.1 to 3
could transfer their properties having definite share in favour of
the Appellant.AIR 19470 PC 182
31..The decision of Travancore and Cochin High Court in T.V.
Kochuvareed (supra), has also no application in the fact of the
present case. AIR 1954 Trav-Co 20
32. The submission of Mr. Reddy to the effect that this Court
should not exercise its discretionary jurisdiction is stated to be
rejected. No such contention has been raised before the High
Court. Even otherwise it has not been shown, having regard to
the conduct of the parties, as to why such @page-SC151 a
discretionary jurisdiction should not be exercised. An alternative
plea of refund of earnest amount and damage cannot itself be a
bar to claim a decree for specific performance of contract.
33. The Trial Court not only granted a decree for specific
performance of contract but also a preliminary decree for
partition.
34..The submission of Mr. Reddy to the effect that the learned

Trial Judge committed a serious error in granting a decree for
partition along with a decree for specific performance of contract
need not detain us long as in view of Section 22(1)(a) of the Act a
decree for partition and separate possession of the property can
be granted in addition to a decree for specific performance of
contract. As in this case, the Appellant herein in view of
amended prayer 'C' relinquished his claim in respect of the
property belonging to the minor - Respondent No. 4, he also
prayed for a decree for partition and such a prayer having been
allowed, no exception thereto can be taken. In any event, the
said question has not been raised by the Respondents before the
High Court at all. Section 22 enacts a rule of pleading that in
order to avoid multiplicity of proceedings, the plaintiff may claim
a decree for possession and/ or partition in a suit for specific
performance. Even though strictly speaking, the right to
possession accrues only when a suit for specific performance is
decreed, indisputably such a decree for possession and/ or
partition is prayed for in anticipation of the grant of prayer for
specific performance of contract. [See Babu Lal v. M/s. Hazari Lal
Kishori Lal and Others (1982) 1 SCC 525] AIR 1982 SC 818
35. The only person who could question the said decree for
partition was Respondent No. 4. As noticed hereinbefore, a
decree as against him has attained finality as she did not prefer
any appeal there against.
36. The said decree for partition, therefore, has attained finality.
No decree for specific performance of contract, however, has
been passed as against the Respondent Nos. 4 and 5. They are,
however, otherwise bound by the decree passed by the learned
Trial Judge. Therefore, they are also proper parties, though not
necessary parties.
37. Before parting with this case, however, we may observe that
the manner in which the decree has been passed by the learned
Trial Court is open to question inasmuch as a relief in terms of
Section 22 of the Specific Relief Act being incidental or ancillary
to the main relief of specific performance of contract and,
furthermore, being in addition thereto, ordinarily, a proceeding
for grant of a final decree for partition should be initiated after
the sale deed in terms of the decree for specific performance of
contract is executed and registered and not vice-versa.
38. For the reasons aforementioned, the impugned judgment

cannot be sustained, which is set aside accordingly. The Appeal
is allowed. No costs. Appeal allowed.
KOYILANDY
OS 71 OF 2008
1. T Vrij Mohan

1. The first plaintiff, Hindu Makkathayee, aged 45,

son of the late T Balan, has his permanent
residence at Arjuna, in Puduppanam Amsom of
Vatakara Taluk in Kozhikode District. The second
plaintiff is a registered partnership firm having its
office at Y M C A Road, Calicut represented by its
Managing Partner P V Gangadharan
2. Defendants, 1 to 8, Hindu Nairs, aged 64, 62, 60,

58, 55, 54, 53, and 49, respectively, are the
children of the late Gopalan Nair and have their
permanent residence at Thekke Mokkatavath
house, in Thiruvangoor Amsom of Koyilandy Taluk
of Kozhikode District. The ninth and tenth
defendants, aged 74 and 76 respectively, are also
the children of Gopalan Nair [by his first wife]. The
ninth defendant is living in Krishnalayam, in
Thiruvangoor Amsom of Koyilandy Taluk. The
tenth defendant is residing in Ponnur in
Avaitanallur Amsom of Koyilandy Taluk. Address
for service on the parties is the same.
3. Defendants 1 to 8 entered into an agreement dated

01-05-2007 to sell the property detailed in the
schedule below to the first plaintiff or his nominee
for a consideration of Rs.16,000 per cent, and the
exact extent of the property was to be determined
by actual measurement based on the title deeds of
the said defendants.
4. As advance towards the sale consideration, the

sum of Rs. Three Lakhs was paid to defendants 1
to 8 along with the agreement, followed by another
Rs Three Lakhs on 11-08-2007, and Rs. Eight Lakhs
on 26-10-2007. all in cash, as well as Rs. 12 Lakhs
by cheque on 26-10-2007, making in all the sum of
Rs. Twentysix Lakhs, duly endorsed on the reverse
side of the first page of the agreement.
5. Copies of the title deeds, were made available to

the first plaintiff by February 2008, and on scrutiny
by the legal advisers of the plaintiffs, the
following anomaly was noticed in the title and
extent of the property agreed to be sold by
defendants 1 to 8:
[a] In the 1961 partition between Gopalan Nair and
son Sreekumaran Nair, only 3.84 acres was
allotted to Gopalan Nair in three Thaks, measuring
5 x 47, 29 x 66½ and 50 x 49 six feet Koles. [and
the balance 2.62 out of their joint acquisition in
1953 was allotted to Sreekumaran Nair]
[b] Gopalan Nair died on 13-06-1971 leaving behind,
his two children by the first wife, the second wife,
and 8 children in the second wife.
[c] By SMC 2843 of 1975, the Panthalayani Land
Tribunal appears to have assigned the jenm right
over 3.70 acres to Narayanikkutty Amma [Gopalan
Nair's second wife], Sarojini, [daughter of Gopalan
Nair by his first wife], Janardanan, Saseendran,
Rugmadevi, Girija, Rama, Jayalakshmi,
Radhakrishnan, and Vasu [children of Gopalan Nair
in his second wife]. The name of Sreekumaran Nair
is omitted in the order and Pattayam. The name of
the 5th defendant is written as Saseendran in the
Pattayam though it is written properly in the order.
Pattayam is granted only for 3.70 acres instead of
3.84 allotted to Gopalan Nair in the 1961 partition.
[d] In the 1982 partition, between the legal heirs of
Gopalan Nair, his two children by the first wife are
seen to have been allotted plots 3 and 2
respectively measuring 53¾ cents each totalling to
1.07½ acres; Gopalan Nair's 8 children by his
second wife, are seen to have been allotted plots 4
to 12. The total area of plots 4 to 12 works out to
4.30 acres [made up of 53¾ + 53¾ +53¾ +53¾
+53¾ +53¾ +53¾ + 36¼ + 17½ cents], so that the
property of Gopalan Nair expands from 3.70 acres
to 5.37½ acres [1.07½ + 4.30].
[e] If the plots allotted to the children of Gopalan
Nair by the first wife having an area of 1.07½ acres
is deducted from the total area of 3.70 for which
Pattayam was obtained, the balance area will only
be 2.62½ acres. Even if the area of Gopalan Nair's
share is adopted as 3.84 acres as shown in the
1961 partition deed, the balance area claimable by
defendants 1 to 8 will only be 2.76½ acres.
6. The sale agreement by defendants 1 to 8 is in

respect of items 4 to 12 of the 1982 partition deed,
having a documentary area of 4.30 acres, while
Gopalan Nair had rights only over 3.70 acres
according to the Pattayam, and 3.84 according to
the 1961 partition deed. Defendants 1 to 8 wanted
time to explain this glaring inconsistency but in
spite of four months, no satisfactory explanation
was forthcoming from them.
7. The first plaintiff has come to know that the

second defendant has executed a sale deed for 20
cents from his plot and the 4th defendant has
assigned 10 cents from her plot, even before the
sale agreement to the first plaintiff. Deducting the
area of these sale deeds, the area available for
sale by defendants 1 to 8 will only be 2.36½ acres.
8. There are no visible boundaries for the property of

defendants 1 to 8, except a lane/drain on the
eastern side, to separate the same from the
surrounding lands, and hence identification of the
actual available area is not possible, except
through a commissioner appointed by the court.
9. In view of the necessity for the identification of

the property of defendants 1 to 8 on ground and
the confusion in the area shown in the partition
deed, defendants 9 and 10, who are the other
children of Gopalan Nair, and who have inherited
rights from him are also added as pro forma
parties to this suit, only to facilitate proper
identification of the property of defendants 1 to 8,
and no relief is sought against defendants 9 and
10.
10. The first plaintiff was ready and willing to perform

his part of the contract at all times after the
execution of the sale agreement, and continues to
be ready and willing to pay the price on centage
basis, on determination of the actual area of the
property belonging to defendants 1 to 8
10A.Since it is apparent from the back title deeds,
performed is a considerable part of the whole
will depend on the actual area over which the
sellers have title. The plaintiffs are thus entitled
to seek specific performance of such part of the
contract as the sellers are able to perform.
10 B. The agreement pertains to the sale of land and
the price agreed
upon, being not in lump but pro rata on centage
basis, the deficiency is certainly capable of being
compensated in terms of money. The plaintiffs
hereby affirm that they are willing to relinquish all
claims for performance of the part incapable of
being performed by the sellers [in respect of the
deficient area] and are also willing to give up all
claims for compensation for the part left
unperformed.
11. The first plaintiff demanded specific performance
of the agreement, by execution of the sale deed in
favour of the plaintiff's nominee M/s PVS
Apartments, by written notice, to which
defendants 1 to 8 have arranged to send a reply
refusing to perform their part of the contract,
alleging breach by the first plaintiff.
performance
cannot be granted to the plaintiffs, defendants 1 to
8 are liable to refund to the plaintiffs the advance
paid [Rs. 26 Lakhs] with interest @12% from the
date of payment and damages estimated at Rs. 28
Lakhs as an alternate relief
12. The cause of action for this suit arose on 01-05-

2007 when the sale agreement was executed, on
10-06-2008 when the first plaintiff demanded
specific performance naming the second plaintiff
as his nominee, in July 2008 when the first plaintiff
received the reply notice and thereafter within the
jurisdiction of this court in Edakkulam Amsom of
Koyilandy Taluk where the property is situated.

follows:
68,80,000-00
68,80,000-00
5,68,800-00
54,00,000-00
4,50,400-00
sufficient
PRAYER
A. The plaintiffs therefore pray for a decree for

specific performance of the sale agreement dated 01-
05-2007 by execution of the sale deed by defendants 1
to 8 in favour of the second plaintiff, and for
possession, in respect of the property really belonging
to defendants 1 to 8, the actual extent of which is to
be determined by the Court, based on the title deeds
of defendants 1 to 8 and located by the issue of a
commission.
B. In the alternative direct defendants 1 to 8 to refund

the advance amount of Rs. 26 Lakhs with future
interest @12% per annum and damages estimated at
Rs. 28,00,000
1.
.
2.
We, the plaintiffs in the suit do hereby declare that the

facts stated above are true to the best of our
knowledge, information and belief.
Dated July 2008
1.
2.
Plaintiffs
List of Documents
1. 01-05-2007 Original sale agreement between

the first plaintiff
and the defendants, with endorsement of
payments
2. 10-06-2008 True copy of notice sent by P1 to
defendants
3. 24-06-2008 Reply notice received by the first
plaintiff
4. 04-12-1953 Copy of sale deed to Gopalan Nair
and another
5. 05-09-1961 Copy of partition deed between
Gopalan Nair and
6. 15-09-1976 Copy of the Order of Panthalayani
Land Tribunal
7. 22-01-1977 Pattayam issued by Panthalayani
Land Tribunal
8. 09-12-1982 Copy of Partition deed between
defendants &
Other legal heirs of deceased Gopalan
Nair
9. 07-12-1985 True copy of sale deed by second
defendant
Dated July
2008
Advocate for
Plaintiffs
KOYILANDY
OS 71 OF 2008

as follows:

2. Immediately after the filing of the written

statement by the defendants [without
controverting the specific allegations in the plaint
regarding the deficiency in title and the
discrepancy in the extent of land belonging to
them], I filed I A 1592 of 2008 for the issue of a
commission to identify the property with reference
to the title deeds, locating the survey numbers and
checking the boundaries. That application was
dismissed by this court.
3. In the Revision WP [C] 8066 of 2009, filed against
that order by me, the High Court has observed that
it is open to me to apply for a commission after
amendment of the plaint, incorporating a specific
prayer for part performance of the contract under
S.12 of the Specific Relief Act.
4. Accordingly I amended the plaint by I A 766 of
2009 which was allowed by this court on 07-09-
2009. For determining the actual extent of land
over which defendants 1 to 8 have title, it is
necessary to determine the correct identity,
measurements and boundaries of the property set
apart to the share of late Gopalan Nair in the 1961
partition and to ascertain whether the division of
the property in the partition between the
defendants tallies with the property so allotted to
Gopalan Nair.
5. It is therefore necessary in the interests of justice
that this Court may be pleased to pass an order
appointing a commissioner to inspect the plaint
schedule properties, with the help of a surveyor, to
submit a plan drawn to scale and a report on the
extent, measurements, and boundaries of the
property over which defendants 1 to 8 have title
according to their title deeds made available to the
first plaintiff which have been produced along with
the plaint.

Dated September
2009
day of September 2009 at Calicut,
Deponent
KOYILANDY
OS 7 1 OF 2008
I. A. OF 2009


Petitioners
Procedure

pleased to pass an order directing the appointment of
a commission to conduct a local inspection of the
plaint schedule properties, with the assistance of the
Taluk Surveyor, to submit a plan drawn to scale and a
report on the extent, measurements, and boundaries
of the property over which defendants 1 to 8 have title
first plaintiff which have been produced along with the
plaint.
Dated 10th
September 2009
KOYILANDY
OS 71 OF 2008

as follows:

commissioner appointed on my application has
submitted a report dated 13-10-2010 with three
plans. But the commissioner has assiduously
avoided the crucial part of the work memo,
obviously to support the false case of Defendants 1
to 8. Hence this application detailing the reasons
for setting aside the report and securing another
unbiased report by a fresh commission which is
essential for a proper adjudication of the suit.
2. The very purpose of taking out the commission

was to check whether the defendants 1 to 8 are
genuinely having title over the property specified in
the sale agreement, which is reproduced in the
schedule to the plaint. I had expressly stated in the
plaint, that the extent, boundaries and survey
numbers of the plaint schedule property do not and
cannot tally with the property shown in the back
title deeds of the property.
3. The three plans are drawn in such a way as to

cause confusion in the identification of the three
properties covered by [1] the 1953 deed of
acquisition, [2] the 1962 partition and [3] the 1982
partition. The same letters are allotted to refer to
totally different plots. Change in the colour of the
letters is insufficient to differentiate the plots. The
east-west and north-south measurements in all the
documents are in Six Feet Koles. The area in all
the deeds is shown in Acre and Cents. Instead of
following the same system, the commissioner has
given the area of all the plots in Hectares, making
it difficult to compare them. Though SFK
measurements are shown in all the three deeds,
and the Commissioner has shown the SFK
measurements in Plans 1 and 2, they are
conspicuously absent In Plan 3.
4. When the green lines in Plan 1 represent the

property acquired by the father of the defendants,
and the red lines are the boundaries of the plaint
schedule property, it is apparent for any one who is
not blind, that they do not tally. When the western
boundary of the plaint property extends outside the
original boundaries of the 1953 property, such
trespassed area should have been measured
separately and shown in the plan and report. The
distance from the main road on the west to the
property essential for fixing the western boundary
of the property of the defendants is omitted to be
measured and shown
5. Item 2 of the 1953 deed situated in a different

survey field of a different Amsom has not been
shown in the plan apparently because it is a
different property unconnected with the property
involved in this suit. This property [50 x 24 = 1
acre] is not shown in Plan 2 also
6. Coming to Plan 2, the commissioner has erred

grievously in demarcating the various plots. The
plots allotted to Sreekumaran Nair shown by the
commissioner as Plots B1, B2 and B3 do not tally
with the boundaries in the deed. The
measurements of these plots do not agree with the
measurements of the property shown as Plot B in
green colour of Plan 1. The east-west
measurement of Plot B2 in Plan 2 [39.5 SFK] is in
excess of the east west measurement of the
original plot which is only 29 SFK. If the excess
10.5 SFK is taken from the Original Plot C of Plan1,
Plot B3 of Plan 2 cannot have the measurements
shown in the plan. The boundaries of plot B3 in
Plan 2 do not agree with the boundaries shown in
the 1962 deed.
7. Coming to Plan 3, since Gopalan Nair had been

allotted only Plots A1, A2 and A3 of Plan 2, the
commissioner ought to have considered only these
plots as available for partition between the legal
heirs of Gopalan Nair, [excluding the property
allotted to Sreekumaran Nair shown as Plots B1,
B2 and B3 in Plan 2].
8. The commissioner has omitted to show plots A1,

A2 and A3 of Plan 2 in Plan 3, apparently to help
defendants 1 to 8. If those plots are shown it will
be apparent even to a child that the 1982 partition
deed has taken in a large area of land over and
above the area that belonged to Gopalan Nair at
the time of his death.
9. When the east-west measurement of Plots A1, A2

and A3 at the widest point works out to 84 SFK,
the total east-west measurement of the property
partitioned in 1982 is 89 SFK at the narrow
northern end. The commissioner erred in
proceeding as if there is no such variation and that
the measurements in the 1982 partition deed are
correct. The commissioner ought to have reported
the substantial difference of 30 feet EW for a
length of 432 feet which will make a difference in
area of 30 cents in excess.
10. When the NS measurement of Plot A3 in Plan 2 is

only 49 SFK and the plot B3 to the north of it did
not belong to Gopalan Nair [having been allotted to
Sreekumaran Nair in the 1962 partition], the
commissioner has shown a total length of 131.6
Metres [equal to 432 feet and 72 SFK] as the NS
measurement of the property partitioned in 1982.
Obviously the property shown by the commissioner
in plan 3 as the property of Gopalan Nair
partitioned in 1982, takes in the property of
Sreekumaran Nair, shown as Plot B3 in Plan 2. This
would make a difference of 1 Acre and 14 Cents
[49 x 28 SFK]
11. The Commissioner ought to have reported that

defendants 1 to 8 have deliberately included non-
partible property in the schedules, giving wrong
measurements to make it appear that they are
entitled to a larger area in the 1982 partition deed,
and that in reality they could have partitioned only
the property shown as A1 to A3 in Plan 2, so that
the 1982 partition deed measurements and area
are incorrect and false.

Dated September
2009
Deponent
KOYILANDY
OS 7 1 OF 2008
I. A. OF 2010


Petitioners
Procedure

pleased to pass an order setting aside the report
dated 13-10-2010 [and the accompanying plans]
directing the appointment of a fresh commission to
conduct a local inspection of the plaint schedule
properties, with the assistance of the Taluk Surveyor,
and submit a plan drawn to scale as well as a report
on the extent, measurements, and boundaries of the
property over which defendants 1 to 8 have title
first plaintiff which have been produced along with the
plaint.
Dated
October 2010

KOYILANDY
OS 71 OF 2008

as follows:
I am the first plaintiff in the suit and I am filing this

affidavit on behalf of the second plaintiff also. I am
filing a separate application to set aside the report
submitted by the commissioner dated 13-10-2010.
In order to convince the court that the report and

plans are incorrect, it is essential to examine the
commissioner as a witness and hence this application

Dated October
2010
Deponent
KOYILANDY
OS 7 1 OF 2008
I. A. OF 2010


Petitioners
Procedure

pleased to pass an order to summon the
Commissioner in this case as a witness in connection
with the application to set aside the report.
Dated October
2010

KOYILANDY
OS 71 OF 2008
Work Memo submitted by

Advocate for Plaintiffs
1. The Commissioner is requested to identify the

property purchased by Gopalan Nair in 1953
covered by Document No 4 in the plaint list, with
reference to the boundaries, measurements and
survey.[with a plan drawn to scale]
2. After determining the said property, the
commissioner is requested to locate the property
set apart to Gopalan Nair, as well as the property
set apart to his son Sreekumaran Nair, with
reference to the survey divisions, and boundaries,
as well as verifying the EW and NS measurements
as shown in the partition deed dated 05-09-1961
produced with the plaint; [with a plan drawn to the
same scale as the first plan]
3. The Commissioner is then requested to identify the
various plots covered by the partition deed dated
09-12-1982, and check whether these plots are
within the boundaries of the property set apart to
Gopalan Nair in the 1961 partition.[with a plan
drawn to the same scale as the earlier two plans]
4. If the 1982 partition deed takes in property in
excess of the property set apart to Gopalan Nair in
1961, as the plaintiffs contend, the commissioner
is requested to show the excess land [with side
measurements] separately
5. The commissioner is requested to state expressly
whether the different plots allotted to the parties
in the partition deed dated 09-12-1982 correspond
exactly to and tally with or are in excess of the
property allotted to Gopalan Nair in the 1961
partition.
6. The commissioner is requested to report whether
there are visible boundaries to the different plots in
the 1982 partition deed
7. The Commissioner is also requested to report if the
total property included in the 1982 partition has
any visible boundary
8. The commissioner is requested to state
specifically any difference or alteration in the
survey sub-divisions, measurements, or boundaries
of all or any of the plots in the original acquisition
and the two partition deeds when verified on
ground.
9. The Commissioner is requested to ascertain and
report the access to the property from the main
road, showing its position, width and length from
the main road, as well as the nature of the way,
[whether metalled, tarred etc] and the
embankments of the way.
10. The commissioner is requested to submit three
separate plans drawn to the same scale giving the
measurements in feet or six feet koles [not in
metres] since the 1951 and 1961 documents refer
to six feet kole measurements only.
Dated September
2011
KOYILANDY
OS 71 OF 2008
I. A. OF 2010
Counter Affidavit of the First Plaintiff

as follows:

affidavit on behalf of the second plaintiff also. This
application for additional remuneration is opposed
for the following reasons:
2. The commissioner has not carried out the work as

is expected from an impartial commissioner.
Instead of attempting to do the work in the light of
the clear Work Memo submitted on behalf of the
plaintiffs, the commissioner has blindly endorsed
the location of the plaint schedule property as
claimed by defendants 1 to 8 without critical
examination of the boundaries and measurements.
3. I am filing separate applications to set aside the

report submitted by the commissioner and to
examine her as a witness to prove that the report
is thoroughly unsatisfactory. It is only just and
proper that this application be considered in the
light of her testimony as witness

Dated October
2010
Deponent
KOYILANDY
OS 71 OF 2008
Affidavit on behalf of the Second Plaintiff
I, P V Gangadharan, aged ………., son of the late P V

Sami, residing at Kerala Kala, in Valayanad amsom of
Kozhikode Taluk and District do hereby solemnly
affirm and state as follows:
1. I am the Managing Partner of the firm, PVS

Apartments, [the second plaintiff in the suit] and I
am filing this affidavit on behalf of the first plaintiff
also.
2. The report and plans submitted by the Advocate

Commissioner dated 12-01-2012 have been
studied by my counsel and he has advised me that
they are to be remitted to the same commissioner,
for the reasons detailed below:
3. The Commissioner has omitted to specify [with

identifiable letters], in the consolidated plan, the
exact area of land over which defendants 1 to 8
have right and title, under the partition deed of
1982, as identified by him, which is essential for
granting a decree to the plaintiffs. The area
marked in the consolidated plan with diagonal
lines, obvioulsy takes in the land set apart to to
defendants 9 and 10 also,
4. This is what is prayed for in the Commission
application. Apparently the Commissioner was
under the impression, that the commission was
taken out to identify the plaint schedule property
as is usual in the generality of cases. The portion
of the shaded area, omitting plots 2 and 3, may be
marked with identifiable letters in the
consolidated plan, with the exact area as found on
measurement.
5. The commissioner has also omitted to report

about items 5 to 7 and 9 of the work memo, which
is likely to create difficulty during the trial.

Dated January
2012
day of January 2012 at Calicut, the contents
having been read over and explained to the
deponent in the vernacular language.,
Deponent
B G Bhaskar. Advocate. Calicut 2
KOYILANDY
OS 7 1 OF 2008
I. A. OF 2012


Petitioners
Procedure

pleased to remit the report and plans submitted by the
Commissioner dated 12-01-2012 to him to supply the
omissions pointed out in the affidavit.
Dated January
2012

KOYILANDY
O S 7 1 OF 2008
I, P V Gangadharan, aged ………., son of the late P V Sami,

residing at Kerala Kala, in Valayanad amsom of Kozhikode
Taluk and District do hereby solemnly affirm and state as
follows:
1. I am the Managing Partner of the second plaintiff firm,

[PVS Apartments], and I am filing this affidavit on
behalf of the first plaintiff also.
2. The Commissioner has submitted a revised plan and

report dated 4th July 2013, which has been studied by
my counsel who has pointed out the following errors
which require a further remittal of the plan and report
to the Commissioner.
3. It is apparent from the report of the Commissioner

that the 1982 partition has purported to divide a larger
extent than what the executants are entitled to and
the Commissioner has reported that the excess area is
56½ cents which has been shown in yellow colour in
Plan No V dated 12-01-2012.
4. Plots 2 and 3 of the partition deed are allotted to

defendants 9 and 10. This area has to be excluded to find
out the area over which D1 to D8 have rights.
5. The area over which D1 to D8 have rights will be the
plot marked as T1 Y Z O P S T1 [the mark T1 being
given by me for identification purposes]. The area of
this plot over which alone D1 to D8 have title works
out to 4 Acres and 14.625 Cents. Out of this D1 to D8
have sold 30 cents as disclosed in the report of the
Commissioner so that the balance area available for
purchase by the plaintiffs will only be 414.625 minus
30 = 384.625
6. But the Commissioner in page 2 of his report has taken

the area over which D1 to D8 have rights as 4 Acres
and 18.3 Cents. This is obviously incorrect since the
yellow shaded area in plan V dated 12.01.2012 has to
be excluded.
7. Our engineering personnel have correctly calculated

the area of the plot T1 Y Z O P S T1 based on the
figures in the scale Plans II and III dated 12-01-2012
submitted by the Commissioner [where measurements
are given in feet and Six Feet Koles] which are given
below:
Plot Points Length Length Area in

in feet in SFK Cents
1 S to Q 474 79
[300 + 174]
Q to Y 360 60 395 [79 x 60 / 12]
[45 x 8]
2. Z to O 30 5
O to P 282 47 19.625 [5 x
47/12]
[See Plan II]
414.625
8. It may be noticed that the price payable by the
plaintiffs under the sale agreement is fixed as Rs.
16,000 per cent so that the error of the Commissioner
will cost us Rs. 51,800.
[3 Acres 88.3 cents minus 3.85 = 3.3 x 16,000 =
51,800]
9. The 30 cents sold by D1 to D8 is within the area of

3.85 acres as is seen from Plan No VI now filed. The
Commissioner ought to have incorporated this in his
revised Plan No V so that the comprehensive plan can
be made part of the decree to facilitate execution.
10. The commissioner has shown the access to the
property, from the road on the North as a Thodu,
which will cause future complications. This error has
also got to be corrected.
11. A plan of the property available for sale to the plaintiffs

[without excluding the 30 cents already sold by D1 to
D8 to strangers ] prepared on the basis of Plan II and
III dated 12-01-2012 submitted by the Commissioner
is attached for ready reference.

Dated July 2013

day of July 2013 at Calicut, the contents
Deponent

KOYILANDY
O S 7 1 OF 2008
I. A. OF 2013


Petitioners
under O 26 R 10 r/w S. 151 of the Code of Civil Procedure
For the reasons stated in the accompanying affidavit it is

prayed that this Court may be pleased to remit the report
and plans submitted by the Commissioner dated 04-07-
2013 to him to correct the errors highlighted in the
affidavit.
List of Documents
1. Plan submitted by the petitioner of the plot

shown as
T1 Y Z O P S T1 drawn on the basis of the plans
II, III, and V dated 12-01-2012 submitted by
Adv Commissioner K Vijayan
Dated July 2013

Advocate for
Petitioners
````````````````````````````
IN THE COURT OF THE SUBORDINATE JUDGE OF KOYILANDY
OS 71 OF 2008
I, P V Gangadharan, aged ………., son of the late P V Sami, residing at

Kerala Kala, in Valayanad amsom of Kozhikode Taluk and District do
hereby solemnly affirm and state as follows:
1. I am the Managing Partner of the firm, PVS Apartments, [the second

plaintiff in the suit] and I am filing this affidavit on behalf of the first
plaintiff also.
2. The suit is for specific performance of the sale agreement in respect
of the property of defendants 1 to 8, at the price agreed on a centage
basis. On account of a valid and genuine difference of opinion
regarding the area of land over which the sellers had title, a
commission was issued at the instance of the plaintiffs to determine
the exact area of land over which the sellers had title. The patently
wrong report submitted by the first commissioner was set aside and a
second commission was issued who has submitted his final report on
08-01-2014 along with plans drawn to scale. The commissioner has
found that the area shown in the partition deed of the sellers is
incorrect, as contended by the plaintiffs, and has marked out the real
area over which the sellers have title.
3. In the light of the said report and plans it is essential to amend the
plaint incorporating the details furnished by the Commissioner in his
last report. The required amendments are the addition of paragraph
9A shown below and substitution of a new schedule for the existing
schedule to the plaint.
4. Para 9A to be added is : The Commissioner deputed by this court has
identified and located the land over which the sellers have title in his
report dated 08-01-2014 and has demarcated the area as the yellow
shaded portion in Plan No. V less the area of 30 cents sold by the
sellers to outsiders after the sale agreement in favour of the plaintiffs.
The Commissioner has found that the actual land over which the
sellers have title and which is covered by the sale agreement in
favour of the plaintiffs takes in a portion of RS No 1 of Chemanchery
village and Desam in addition to the bigger plot in Rs No 5 of
Chengottukavu Village and Mangad Desam. The plaintiffs are
therefore entitled to get a decree for specific performance in respect
of the property identified and located by the Commissioner in his
three reports dated 12-01-2012, 04-07-2013 and 08-01-2014 shown
in his Plan No V as the yellow shaded portion marked by the English
letters T1, Y, Z, O, P, S, T1 less 30 cents sold by the sellers to
strangers after the sale agreement to the plaintiffs.
5. The existing schedule in the plaint has to be replaced with the
following schedule:
Schedule of Property
District : Kozhikode Villages:

Chengottukavu
and Chemancherry
Taluk : do Desams : Mangad
and
Chemancherry
RS No. 1 of Chengottukavu Village, Mangad

Desam and
RS No 5 of Chemancherry Village and Desam
Description: Portion of Parakkal Thazha Paramba
with all improvements thereon
Measurements: As shown in Plan No V dated

………..
Submitted by Advocate
Commissioner K Vijayan as plot T1,
Y, Z, O, P, S, T1 less
thirty cents sold to strangers by the
defendants 1 to 8 after the
sale agreement
to the plaintiffs
Extent : 3 acres and 84.625 cents 1
Boundaries:
East Lane leading from National Highway
South properly set apart as east west way

West Concrete posts and property of
others
North Concrete posts, Varamba &
property of others
The facts stated above are true to the best of my knowledge, and
information , and the inferences made therein are true to the best of my
belief.
Dated February 2014

day of February 2014 at Calicut, the contents
Deponent

OS 7 1 OF 2008
I. A. OF 2014

Application submitted by B G Bhaskar, Advocate for Petitioners

under Order 6 Rule 17 r/w S. 151 of the Code of Civil Procedure
For the reasons stated in the accompanying affidavit it is prayed that this
Honourable Court may be pleased to permit the plaintiffs to amend the
plaint by adding a new paragraph as 9A and by substituting the new
schedule for the existing schedule as detailed below:
Para 9A: The Commissioner deputed by this court has identified and
located the land over which the sellers have title in his report dated 08-
01-2014 and has demarcated the area as the yellow shaded portion in
Plan No. V less the area of 30 cents sold by the sellers to outsiders after
the sale agreement in favour of the plaintiffs. The Commissioner has found
that the actual land over which the sellers have title and which is covered
by the sale agreement in favour of the plaintiffs takes in a portion of RS
No 1 of Chemanchery village and Desam in addition to the bigger plot in
Rs No 5 of Chengottukavu Village and Mangad Desam. The plaintiffs are
therefore entitled to get a decree for specific performance in respect of the
property identified and located by the Commissioner in his three reports
dated 12-01-2012, 04-07-2013 and 08-01-2014 shown in his Plan No V as
the yellow shaded portion marked by the English letters T1, Y, Z, O, P, S,
T1 less 30 cents sold by the sellers to strangers after the sale agreement to
the plaintiffs.
The new schedule to replace the existing schedule in the plaint:
District : Kozhikode Villages:

Chengottukavu
and Chemancherry
Taluk : do Desams : Mangad
and
Chemancherry
RS No. 1 of Chengottukavu Village, Mangad

Desam and
Description: Portion of Parakkal Thazha Paramba
with all improvements thereon
Measurements: As shown in Plan No V dated

………..
Submitted by Advocate
Commissioner K Vijayan as plot T1,
Y, Z, O, P, S, T1 less
defendants 1 to 8 after the
sale agreement
to the plaintiffs
Boundaries:
South Property set apart as east west way

West Concrete posts and property of
others
North Concrete posts, Varamba &
property of others
Dated February 2014

[Plaint after all amendments]
OS 71 OF 2008
1. T Vrij Mohan

1. The first plaintiff, Hindu Makkathayee, aged 45, son of the late T
Balan, has his permanent residence at Arjuna, in Puduppanam
Amsom of Vatakara Taluk in Kozhikode District. The second
plaintiff is a registered partnership firm having its office at Y M C A
Road, Calicut represented by its Managing Partner P V Gangadharan
2. Defendants, 1 to 8, Hindu Nairs, aged 64, 62, 60, 58, 55, 54, 53, and
49, respectively, are the children of the late Gopalan Nair and have
their permanent residence at Thekke Mokkatavath house, in
Thiruvangoor Amsom of Koyilandy Taluk of Kozhikode District.
The ninth and tenth defendants, aged 74 and 76 respectively, are also
the children of Gopalan Nair [by his first wife]. The ninth defendant
is living in Krishnalayam, in Thiruvangoor Amsom of Koyilandy
Taluk. The tenth defendant is residing in Ponnur in Avaitanallur
Amsom of Koyilandy Taluk. Address for service on the parties is the
same.
3. Defendants 1 to 8 entered into an agreement dated 01-05-2007 to sell

the property detailed in the schedule below to the first plaintiff or his
nominee for a consideration of Rs.16,000 per cent, and the exact
extent of the property was to be determined by actual measurement
based on the title deeds of the said defendants.
4. As advance towards the sale consideration, the sum of Rs. Three

Lakhs was paid to defendants 1 to 8 along with the agreement,
followed by another Rs Three Lakhs on 11-08-2007, and Rs. Eight
Lakhs on 26-10-2007. all in cash, as well as Rs. 12 Lakhs by cheque
on 26-10-2007, making in all the sum of Rs. Twentysix Lakhs, duly
endorsed on the reverse side of the first page of the agreement.
5. Copies of the title deeds, were made available to the first plaintiff by
February 2008, and on scrutiny by the legal advisers of the plaintiffs,
the following anomaly was noticed in the title and extent of the
property agreed to be sold by defendants 1 to 8:
[a] In the 1961 partition between Gopalan Nair and son Sreekumaran
Nair, only 3.84 acres was allotted to Gopalan Nair in three Thaks,
measuring 5 x 47, 29 x 66½ and 50 x 49 six feet Koles. [and the
balance 2.62 out of their joint acquisition in 1953 was allotted to
Sreekumaran Nair]
[b] Gopalan Nair died on 13-06-1971 leaving behind, his two children
by the first wife, the second wife, and 8 children in the second wife.
[c] By SMC 2843 of 1975, the Panthalayani Land Tribunal appears to

have assigned the jenm right over 3.70 acres to Narayanikkutty Amma
[Gopalan Nair's second wife], Sarojini, [daughter of Gopalan Nair by
his first wife], Janardanan, Saseendran, Rugmadevi, Girija, Rama,
Jayalakshmi, Radhakrishnan, and Vasu [children of Gopalan Nair in
his second wife]. The name of Sreekumaran Nair is omitted in the
order and Pattayam. The name of the 5 th defendant is written as
Saseendran in the Pattayam though it is written properly in the order.
Pattayam is granted only for 3.70 acres instead of 3.84 allotted to
Gopalan Nair in the 1961 partition.
[d] In the 1982 partition, between the legal heirs of Gopalan Nair, his
two children by the first wife are seen to have been allotted plots 3
and 2 respectively measuring 53¾ cents each totalling to 1.07½ acres;
Gopalan Nair's 8 children by his second wife, are seen to have been
allotted plots 4 to 12. The total area of plots 4 to 12 works out to 4.30
acres [made up of 53¾ + 53¾ +53¾ +53¾ +53¾ +53¾ +53¾ + 36¼
+ 17½ cents], so that the property of Gopalan Nair expands from 3.70
acres to 5.37½ acres [1.07½ + 4.30].
[e] If the plots allotted to the children of Gopalan Nair by the first
wife having an area of 1.07½ acres is deducted from the total area of
3.70 for which Pattayam was obtained, the balance area will only be
2.62½ acres. Even if the area of Gopalan Nair's share is adopted as
3.84 acres as shown in the 1961 partition deed, the balance area
claimable by defendants 1 to 8 will only be 2.76½ acres.
6. The sale agreement by defendants 1 to 8 is in respect of items 4 to 12

of the 1982 partition deed, having a documentary area of 4.30 acres,
while Gopalan Nair had rights only over 3.70 acres according to the
Pattayam, and 3.84 according to the 1961 partition deed. Defendants
1 to 8 wanted time to explain this glaring inconsistency but in spite of
four months, no satisfactory explanation was forthcoming from them.
7. The first plaintiff has come to know that the second defendant has
executed a sale deed for 20 cents from his plot and the 4 th defendant
has assigned 10 cents from her plot, even before the sale agreement
to the first plaintiff. Deducting the area of these sale deeds, the area
available for sale by defendants 1 to 8 will only be 2.36½ acres.
8. There are no visible boundaries for the property of defendants 1 to 8,

except a lane/drain on the eastern side, to separate the same from the
surrounding lands, and hence identification of the actual available
area is not possible, except through a commissioner appointed by the
court.
9. In view of the necessity for the identification of the property of

defendants 1 to 8 on ground and the confusion in the area shown in
the partition deed, defendants 9 and 10, who are the other children of
Gopalan Nair, and who have inherited rights from him are also added
as pro forma parties to this suit, only to facilitate proper identification
of the property of defendants 1 to 8, and no relief is sought against
defendants 9 and 10.
9A: The Commissioner deputed by this court has identified and
located the land over which the sellers have title in his report dated
08-01-2014 and has demarcated the area as the yellow shaded
portion in Plan No. V less the area of 30 cents sold by the sellers
to outsiders after the sale
10. The first plaintiff was ready and willing to perform his part of the
contract at all times after the execution of the sale agreement, and
continues to be ready and willing to pay the price on centage basis,
on determination of the actual area of the property belonging to
defendants 1 to 8
10A. Since it is apparent from the back title deeds, that defendants 1 to 8
are not having valid title to the whole area agreed to be sold by
them, it is obvious that they are unable to perform the whole sale
agreement. Whether the part that cannot be performed vis-à-vis the
part capable of being performed is a considerable part of the whole
will depend on the actual area over which the sellers have title. The
plaintiffs are thus entitled to seek specific performance of such part
of the contract as the sellers are able to perform.
10 B. The agreement pertains to the sale of land and the price agreed
upon, being not in lump but pro rata on centage basis, the deficiency
is certainly capable of being compensated in terms of money. The
plaintiffs hereby affirm that they are willing to relinquish all claims
for performance of the part incapable of being performed by the
sellers [in respect of the deficient area] and are also willing to give
up all claims for compensation for the part left unperformed.
11. The first plaintiff demanded specific performance of the agreement,
by execution of the sale deed in favour of the plaintiff's nominee M/s
PVS Apartments, by written notice, to which defendants 1 to 8 have
arranged to send a reply refusing to perform their part of the contract,
alleging breach by the first plaintiff.
11A. If for any reason this court feels that specific performance
cannot be granted to the plaintiffs, defendants 1 to 8 are liable to
refund to the plaintiffs the advance paid [Rs. 26 Lakhs] with interest
@12% from the date of payment and damages estimated at Rs. 28
Lakhs as an alternate relief
12. The cause of action for this suit arose on 01-05-2007 when the sale
agreement was executed, on 10-06-2008 when the first plaintiff
demanded specific performance naming the second plaintiff as his
nominee, in July 2008 when the first plaintiff received the reply
notice and thereafter within the jurisdiction of this court in
Edakkulam Amsom of Koyilandy Taluk where the property is
situated.
13. Valuation for court fee and jurisdiction is as follows:
for the documentary area of 4.30 acres Rs. 68,80,000-00
Valuation for jurisdiction Rs. 68,80,000-00
Court fee paid u/S 42 of the C F & S V Act Rs. 5,68,800-00
damages of Rs.28,00,000 Rs. 54,00,000-00
Court fee payable u/S 22 for this amount Rs. 4,50,400-00
Since main relief is valued higher than the alternative prayer, court fee
already paid is sufficient
District : Kozhikode Villages: Chengottukavu

and
Chemancherry
Taluk : do Desams : Mangad and
Chemancherry
RS No. 1 of Chengottukavu Village, Mangad Desam and

Description: Portion of Parakkal Thazha Paramba with all

improvements thereon
Measurements: As shown in Plan No V dated 04-07-2013

Submitted by Advocate Commissioner K
Vijayan as plot T1, Y, Z, O, P, S, T1 less
defendants 1 to 8 after the sale agreement
to the plaintiffs
Boundaries:

South Properly set apart as east west way
West Concrete posts and property of others
North Concrete posts, Varamba & property of others
PRAYER
A. The plaintiffs therefore pray for a decree for specific performance of
the sale agreement dated 01-05-2007 by execution of the sale deed
by defendants 1 to 8 in favour of the second plaintiff, and for
possession, in respect of the property really belonging to defendants
1 to 8, the actual extent of which is to be determined by the Court,
based on the title deeds of defendants 1 to 8 and located by the issue
of a commission.
B. In the alternative direct defendants 1 to 8 to refund the advance

amount of Rs. 26 Lakhs with future interest @12% per annum and
damages estimated at Rs. 28,00,000
1.
.
2.
We, the plaintiffs in the suit do hereby declare that the facts stated above
are true to the best of our knowledge, information and belief.
Dated July 2008
1.
2.
Plaintiffs
List of Documents
1. 01-05-2007 Original sale agreement between the first plaintiff

and the defendants, with endorsement of payments
2. 10-06-2008 True copy of notice sent by P1 to defendants
3. 24-06-2008 Reply notice received by the first plaintiff
4. 04-12-1953 Copy of sale deed to Gopalan Nair and another
5. 05-09-1961 Copy of partition deed between Gopalan Nair and
6. 15-09-1976 Copy of the Order of Panthalayani Land Tribunal
7. 22-01-1977 Pattayam issued by Panthalayani Land Tribunal
8. 09-12-1982 Copy of Partition deed between defendants &
Other legal heirs of deceased Gopalan Nair
9. 07-12-1985 True copy of sale deed by second defendant
Dated July 2008

OS 71 OF 2008

1. I am the Managing Partner of the firm, PVS Apartments, [the second

plaintiff in the suit] and I am filing this affidavit on behalf of the first
plaintiff also.
2. The suit is for specific performance of the sale agreement in respect
of the property of defendants 1 to 8, at the price agreed on a centage
basis. Defendants 1 to 8 have raised a contention that the plaintiffs
did not have sufficient funds to complete the transaction. To disprove
the same, it has become necessary to produce the documents listed
below, which may be received in evidence on the side of the
Plaintiffs.
LIST OF DOCUMENTS
1. 13-09-2007 Sanction letter from Syndicate Bank, Kozhikode

2. 18-04-2009 do do do
3. 12-09-2012 Sanction letter from HDFC Bank, Kozhikode
4. 10-11-2009 do from Kerala Financial Corporation
5. 07-04-2011 do do
6. 21-10-2011 do do
7. 2006-2007 Audited Balance Sheet of Second Plaintiff
8. 2007-2008 do
9. 2008-2009 do
10. 2009-2010 do
11. 2010-2011 do
12. 2011-2012 do
13. 2012-2013 do
The facts stated above are true to the best of my knowledge, and
information , and the inferences made therein are true to the best of my
belief.
Dated February 2014

day of February 2014 at Calicut, the contents
Deponent

OS 7 1 OF 2008
I. A. OF 2014

Application submitted by B G Bhaskar, Advocate for Petitioners

under Order 13 Rule 2 r/w S. 151 of the Code of Civil Procedure
Honourable Court may be pleased to receive the accompanying documents
in evidence on the side of the plaintiffs :
LIST OF DOCUMENTS
1. 13-09-2007 Sanction letter from Syndicate Bank, Kozhikode

2. 18-04-2009 do do do
3. 12-09-2012 Sanction letter from HDFC Bank, Kozhikode
4. 10-11-2009 do from Kerala Financial Corporation
5. 07-04-2011 do do
6. 21-10-2011 do do
7. 2006-2007 Audited Balance Sheet of Second Plaintiff
8. 2007-2008 do
9. 2008-2009 do
10. 2009-2010 do
11. 2010-2011 do
12. 2011-2012 do
13. 2012-2013 do
Dated February 2014

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OS 71 OF 2008
Affidavit of Pw1 in lieu of Chief Examination
I, T Vrij Mohan, aged 51, son of the late T Balan, residing at 15D PVS
Nakshatra, YMCA Road, in Kalathinkunnu amsom of Kozhikode District
do hereby solemnly affirm and state as follows:
1. I am the first plaintiff in the suit and I am filing this affidavit on

behalf of the second plaintiff also. The suit is for specific perormance
of the sale agreement by defendants 1 to 8. I had entered into the sale
agreement for and on behalf of the second defendant.
2. The second defendant has more than two decades of experience in the
field of building construction and has successfully completed sixteen
[16] projects worth over Rs. 150 [One hundred and fifty] Crores,
having a total of more than 900 [nine hundred] residential units in
different segments [cost-wise and bedroom-wise] during the said
period, in three different Districts n Kerala.
3. It is the usual business practice in the real estate development field to

purchase property by availing of bank credit for the purchase by an
equitable mortgage of the very same property and to raise another
project loan for the construction of the apartments. The second
plaintiff has also been adopting this practice in its business activity.
4. I have an intimate connection with the second plaintiff firm in as

much as my mother-in-law is a partner of the firm consisting of
related family members alone. The second plaintiff is also a member
of the K T C Group of business enterprises which include Kerala
Transport Company, KTC Automobiles [P] Ltd, Kalpaka Transport,
KTC Hyundai, KTC Hero Honda, Kalpaka Plantations, Norman
Printing Bureau, PVS Automotive Co, PVS Automobiles etc. The
above details are furnished to disprove the absurd contention of the
defendants that the plaintiffs committed breach of contract due to
paucity of funds.
5. We have been, and are ready and willing to perform our part of the
sale agreement at all times in the past , present and future. The sale
could not be completed only on account of the discrepancy in the
area of land that defendants 1 to 8 could validly sell to us.
6. The Commissioner appointed by this court has found that the area
shown in the partition deed of the defendants is more than the actual
area over which they have right and possesison. Since the price was
fixed on centage basis we are liable to pay oly the value for the actual
area owned and possessed by Defendants 1 to 8 as determined by the
Commissioner.
7. No relief is sought against D9 and D10 who have been impleaded as

proforma parties only to enable the correct determination of the area
of land inherited by defendants 1 to 8.
8. The land agreed to be sold to the plaintiffs is not in any commercially

valuable locality, being far away from houses, shops, schools, and
markets, situated by the side of the Arabian Sea, so that there has
been no escalation in price for the property after 2007. It may be
noticed that the defendants also do not have any claim of escalation
in the price of the property.
9. The documents produced on behalf of the plaintiffs may be marked

as shown in the list annexed.
The facts stated above in paragraphs 1 to 6 are true to the best of my

knowledge and information, and the inferences made therein are true to
the best of my belief.
Dated 6th October 2014

Solemnly affirmed and signed this on the 6th
Day of October 2014, the contents of this
affidavit having been read over and explained
to the deponent in the vernacular.
Deponent

OS 71 OF 2008
LIST OF DOCUMENTS OF THE PLAINTIFFS
A1. 01-05-2007 Original sale agreement between the first plaintiff

and the defendants, with endorsement of payments
A2. 10-06-2008 True copy of notice sent by P1 to defendants
A3. 24-06-2008 Reply notice received by the first plaintiff
A4. Balance Sheets of the Second Plaintiff from 2004

To 2013 [ 7 in Number]
A5 13-09-2007 Sanction letter from Syndicate Bank to P2.
A6. 18-04-2009 do do do
A7. 12-09-2012 Sanction letter from HDFC Bank
A8. 10-11-2009 Sanction letter by Kerala Financial Corporation
A9. 07-04-2011 do do
First Plaintiff
SC, Koyilandy O S 71 of 2008 Plaintiffs
Notes for X examination of witness for defendants
In the light of the Commissioner's plans and reports, do you agree that D1
to D8 did not get right over 4.30 acres in the 1982 partition ?
Is it yourcase even now that at the tiem of the sale agreement, D1 to D8

could convey valid titleover 4.30 acres to P1 ?
Item 2 of A1 belonged to D2 [E5 - Item 5] 89 x 7 ¼ SFK 53.7 cents

He sold 20¼ cents to P P Narayanan in 1985 - Balance in 2007 33.55
Agrt schedule area shown is 89 x 7¼ - Sale suppressed
Another 9¾ cents also sold ? When ? Who ? Not disclosed

CR says 30cents sold away
AREA DISPUTE
Compare Schedules in A1 agrt and 1982 partition deed

Items 1 to 9 in A1 are identical to Items 4 to 12 of partition deed
According to you this was the land agreed to be sold
Item 2 of A1 corresponds to Item 5 of Partition deed
Suggest only 1982 partition deed shown at the time of A1 agreement

P1signed agrt believing that the area shown in partition is correct
No specific denial of
Properties divided in 1982 partition acquired by 1953 deed only
No other doct of acquisition by Narayanan Nair given to plff
In 1961 partition only 4.84 allotted to Narayanan Nair

Land Tribunal proceedings was for this land ?
Pattayam only for 3.70 acres ? RS 5/1of Mangod Desam
1 acre in RS 8 of Chemancheri desam omitted - 14 cents still short
No steps taken to correct this difference
See LT order - Who is Rugmadevi ? D3 is Rugminidevi

D9 Sreekumaran Nair not included though D10 is named
See Pattayam - D9 omitted - Rugmadevi repeated

Who is Saseendran ? D 5 is Sasidharan
1982 deed - RS 1 of Chemancheri not shown at all - RS 8 wrong

See CR dated 12-01-2012 - RS 1 is not there in 1953 or 1961 deed also
1982 deed - Items 3 & 2 allotted to D9 and D10 - total area 1.0388 Acres
D1 to D8 can together have only 4.84 minus 1.04 = 3.80
Total area allotted to D1 to D8 in 1982 partition is 4.30 acres
That is the claim in WS & Even now - Agrt was for 4.30 acres .
If these docts are forwarded to you as Bank's lawyer, will you approve ?
Especially when the deal involves 4.30 x 16000 = Rs. 68,80,000
LACK OF FUNDS
A5 to A9 seen - what have you understood from them ?
A5/A6 Collateral security- primary security is the proposed land
Modern business practice is based on venture capital not on cash

Loss of interest on unutilised capital is more than interest paid on loans
A1 not limited to P1 but contemplates nominee -
Before agreement, enquiry about P1 - relationship with PVC known

You knew purchase was for PVSA - Cheque payment
TIME FRAME NOT ADHERED TO
Agrt date 01-05-2007- Eight months reduced to six months - correction

Performance date expires on 01-11-2007
No provision for instalment payment of balance
Two further payments made on your request -

Endorsements on back of A1 - whose handwriting ? different
11-08-2007 3 Lakhs cash Endorsed by D7

26-10-2007 8 Lakhs cash
12 Lakhs by Cheque Endorsed by D7
A2 notice by P1 on 10-06-2008 demanding documents -
No demand by you asking P1 complete transaction before that

No notice of cancellation - required by law - time not essence
A2 False reply title deeds etc given before agreement -

Nothing more to be given ? Last line in page 4 of agreement
TITLE DEEDS WHEN GIVEN
Alleged handing over of title deeds - originals or copies ?

Copies applied for by Balakrishna Varier ?
Who among you gave and to whom was it given ?
Are they Items 4 to 8 listed in the plaint ? - Give docts to witness &
confirm
Request marking as A10 to A14
Any acknowledgement from P1 ? Suggest given to Madhavan

Madhavan forwarded to P2 .
Confirm - were they given before the sale agreement ? [01-05-2007]
Plaint doct 4 18-09-2007 See seal

Plaint Doct 6 18-01-2008 See signature
Plaint Doct 7 18-01-2008 See signature of D7
Any explanation ?
ESCALATION IN PRICE :
No data - any sale deed - No change in the locality then and now
No new buildings have come up in the last 6 years
Only fit for luxury villas not for ordinary residential or commercial
purposes
CONDUCT AFTER SUIT
5 years delay for final CR

Plaintiffs applied for commission to measure
I A 1592 of 2008 in Oct 2008 immediately after WS - opposed
After Revision to High Court - IA 1030 of 2009 also opposed
Commission issued in ……………… Inspection started on 08-06-2010

Report filed on 13-10-2010.
IA 1340 of 2010 to set aside CR opposed -
Allowed after examination of commisisoner on 08-03-2011
Second commiission filed report 12-01-2012

Remitted by I A 376 of 2012 - Addl report filed on 04-07-2013
Again remitted by I A - Report filed on 16-01-2014
Reply notice and WS only claims possession does not deal with title
Area to be measured can only be for land over which defts have title
Sale did not take place because defts insisted that they own 4.30 acres
And price has to be paid for that area.
Plaintffs had the ability to pay the balance consideration and were willing
to pay provided clear title was established.
Are the defts prepared to execute sale deed for the area determined by the
Commisisoner ? which is only 3 Acres 84.6 cents
Your greed to get uneserved Rs. 7,20,000 [4.30 minus 3.85 = 45 X 16000]
was the cause for delay in completing the sale.
SC, KOYILANDY O S 71 OF 2008 PLAINTIFFS
1. T.Vrij Mohan Vs 1. T K Vasudevan Nair 2. T K Janardanan Nair

2. M/s PVS Apartments 3. T K Rugminidevi Amma 4. T K Girija Amma
5. T K Sasidharan Nair 6. T K Ramadevi Amma
7. T K Radhakrishnan Nair 8. T K Jayalakshmi Amma
9. T K Sreekumaran Nair 10. T K Sarojini Amma
NOTES OF ARGUMENTS
ON BEHALF OF THE PLAINTIFF
Suit for specific performance of A1 sale agreement dated 01-05-2007

executed by defendants 1 to 8 and the first plaintiff, fixing the price not on
lump sum basis, but at the rate of Rs. 16,000 per cent. The agreement
provides for the measurement of the area. The agreement also stipulates
that the sale deed is to be executed by D1 to D8 in favour of the first
plaintiff or his nominee.
According to the plaintiffs, A1 agreement was signed on the basis of the

B4 partition deed of 1982 between Defendants 1 to 10 in which the area
allotted to D1 to D8 was shown as 4 acres and 32 cents. The back title
deeds of the property were made available only later. When they were
scrutinised, clear title was not seen in respect of the 4.32 acres.
Measurement of the area can be undertaken only after the title as per the
deeds is clear in respect of the area shown in B4 partition.
The plaintiffs contend that the D1 to D8 were not able to satisfactorily

explain the defects pointed out in the title, noticed from the documents
made available to the plaintiffs, and that this is the only reason for the sale
not being completed as agreed.
A2 notice was issued to D1 to D8 on 10-06-2008 referring to the defective

title calling upon them to provide additional materials to establish their
title clearly. The glaring defect in title was also narrated in the notice.
In A3 reply dated 24-06-2008, D1 to D8 would say that they do not have

any further documents to be produced, that all the available documents
had been given before the agreement which according to them
established their title to the entire area shown in B4 partition deed.
Suit was filed within a week, in July 2008 itself with detailed averments
regarding the defects in the title of D1 to D8 as noticed by the plaintiffs.
The copies of documents handed over by the plaintiffs were also produced
with the plaint as Documents 4 to 8 in the plaint list.
As soon as the WS was filed, plaintiffs applied by I A 1592 of 2008 in

October 2008, for the issue of a commission to determine the area
covered by the title deeds given by D1 to D8. The final Commissioner's
report was filed only on 16th January 2014.
This time lag of five years was due to the recalcitrant attitude of D1 to D8
who opposed the issue of the commission, and also opposed the
application to set aside the report of the first commissioner. This court
held that the report of the first commissioner was wrong and baseless and
set aside that report. The report of the second commissioner had to be
remitted twice before the final report was filed. The reports and plans may
be marked :
12-01-2012 First Report of Adv Vijayan C1

Plan I by Surveyor C1A
Plan II by surveyor C1B
Plan III by surveyor C1C
Plan IV by Surveyor C1D
Plan V by Commissioner C1E
04-07-2013 Second Report by Adv Vijayan C2

Plan VI by Surveyor C2A
16-01-2014 Report of Adv Vijayan C3
C1E reveals that :
[1] B4 1982 partition deed has included larger area than what has been
obtained under the prior title deeds : yellow shaded portions;
[2] that part of the property over which D1 to D8 claim title [44½ cents]
lies in RS 1 of Chemanchery Amsom which is not included in any of the
prior deeds and not even in B4 partition deed. See C1D. [B1, B3, and B4
show only RS 5 of Edakkulam amsom and RS 8 of Chemancheri amsom -
Part of the property has been found by the Commissioner to be in RS 1 of
Chemanchery amsom which is not there in any of the documents
The total area over which D1 to D8 have title under B4 partition has been
reported by the Commissioner in C3 report as 4 A 14.6 cents [Not 4.32]
This is demarcated as T1 Y Z O P S T1
Out of this D1 to D8 have already sold 30 cents
Balance remaining now available for sale to plaintiffs is 3A 84.6 cents
The amended plaint schedule is T1 Y Z O P S T1 from which the 30 cents

sold has to be deducted
Hence the consideration payable by the Plaintiffs works out to Rs.

61,60,000
[3.85 x 16000 = Rs. 61,60,000]
Ready & Willing
No strait jacket formula - depends on circumstances of each case

Plaintiffs established the following genuine disputes of title -
A. 44½ cents in RS 1 of Chemanchery Amsom not seen in any title

deed, not even in B4 partition
B. No property in RS 8 of Chemanchery Village at all though B1, B3

and B8 refers to the property in RS 8
C. Yellow shaded portions in C1E are outside the area covered by title
deeds. This covers 17 cents [4.32 minus 4.15] See C1E and C3
D. B1 which is the only acquisition of Gopalan Nair covers only 7 A
16 Cents [5 x 47 = 19.58 29 x 114 = 275.5 50 x 77 = 320.8
50 x 24= 100]
[B2 is the acquisition deed of a different property called Chalil

Kadappuram which is shown as Item 2 of B3 partition and set apart
to D9 over which D1 to D8 do not get any right at any time]
In B3 partition between Gopalan Nair and D9, Gopalan Nair, [father

of D1 to D8] was allotted only 3.84 + 1.00 = 4A and 84 Cents.
Out of this an area of 1 A 7½ Cents were allotted to D10 and D9 as

items 2 and 3 of B4 partition. Balance area which is available for
division among D1 to D8 can only be 4.84 minus 1.07½ = 3 A 77½
Cents and cannot be 4 .32 as shown in B4
E. Land Tribunal Order and Pattayam in the name of the Widow of

Gopalan Nair and D1 to D8 and D10 [children of Gopalan Nair]
refer only to an area of 3 A and 70 Cents [vide LT order and
Pattayam produced as Documents 6 and 7 with plaint] admitted by
Dw1.
F. LT order and Pattayam have omitted the name of D9, son of

Gopalan Nair which is admitted by Dw1. No steps taken to correct
the obvious mistakes if they are mistakes.
G. Plaintiffs have paid not a mere nominal advance but a substantial

amount of 26 Lakhs before suit which works out to 42% of the total
consideration
H. A2 notice was issued by plaintiffs on 10-06-2008 asking for

documents. No notice of cancellation was issued by the sellers to
First Plaintiff till A2 notice though the time fixed in A1 agreement
expired on 01-11-2007 [7 months]
I. Full court fee of more than Rs. 4½ Lakhs paid by plaintiffs for the
entire area of 4 and odd acres alleged by D1 to D8 to belong to
them.
Ability to pay the balance sale consideration
This is the main defence taken up in the case : that P1 did not have the
financial capacity to pay the balance sale consideration within the fixed
time schedule and backed out of the agreement.
Ability to pay as such is not prescribed as a precondition for a suit under S

of Sp. Rel. Act. The plaintiff should be ready and willing to perform his
part of the agreement under S.16 which impliedly includes ability to pay
coming within the ambit of readiness.
Should the plaintiff in a suit for Sp Perf prove he had a cash

balance/deposit of the entire amount payable by him, from the date of the
agreement till the date of suit and thereafter. Neither statute nor judgments
say so. The plaintiff need prove only that he has the ability to raise
funds to make the payment when required.
AIR 2009 SC 2157
Modern day business is not carried on with full capital outlay as in the
ancient past. Banks are no longer a mere parking place for surplus funds.
20th century has witnessed the growth, phenomenal growth of NBFCs who
offer financial participation in all business ventures, even in the high risk
category of commercial cinema, costing Crores, which is more
unpredictable than the glorious uncertainty of cricket.
The very property that is intended to be bought can be shown as security

and impressed with an equitable mortgage in favour of the Bank or NBFC,
who will pay the price directly to the owner; and collect the original sale
deed from the Bank which will be retained as security. Money will be
advanced for the construction also. When the built up units are finally
being sold to the customers, a proportionate amount will have to be paid to
the financier out of the money got from the customer.
Ancient concepts of Personal funding and even bootstrapping are all passé'
and antediluvian. Modern business banks on Venture Capital which
promotes activity with long term growth potential even though they
involve high risk and returns are illiquid. The PVSA with an impressive
track record has crossed the initial hurdles/ hiccups and has reached the
stage of mezzanine funding.
A7 series are the balance sheets of the second plaintiff for the last few
years showing the volume of business transacted by it. --- 16 completed
projects worth over Rs. 150 Crores; more than 900 residential units --
Pw1 had given these details on which there has been no cross examination
at all.
A4 to A6, A8 to A9 are documents evidencing grant of financial

assistance to the second plaintiff by different institutions. A4 is of 2007
[when A1 agreement was signed] and shows sanction of 500 Lakhs by The
Syndicate Bank for the purchase of land. A5 is the sanction of another 450
Lakhs for the building work in that land. A6 is sanction from the HDFC
Bank of Eight Crores for phase II and III of the buildings in the project
called IRIS. A8 is the sanction letters from the KFC for 500 Lakhs to
PVSA for the project called Fortune at Kannur. A9 is the sanction letter by
the KFC to KTC for 2 Crores for Project Vydoorya in Calicut.
Just as India and many other nations of the world resort to deficit
financing, it is now considered as economic foolishness to commence or
carry on any large business with one's own capital. Courts can take
judicial notice of this economic scenario.
The Kerala High Court and the Supreme Court had occasion to consider
this question in a different context. S. 11 [iv] [iv] of our Rent Control Act
permits eviction on the ground of reconstruction. The Statute expressly
states that the applicant has to prove "ability to rebuild" which means
financial capacity.
1971 KHC 57 1999 KHC 8 AIR 2006 SC 1930

Extreme case of indigent suit AIR 1982 ALL 47
The only other aspect to be considered by this court is the connection

between the two plaintiffs. That the sale agreement is not personal to the
first plaintiff is apparent from the provision for the nominee, to whom the
sale deed is to be executed. It is not necessary for the seller to know who
the nominee is.
Pw1 has explained his close connection with P2. P2 is a partnership

business whose Managing Partner is P V Gangadharanas. The firm has
only 2 other partners P V Hemalatha and P V Chandran as shown in A7
balance sheets. Pw1 has stated that this firm is part of the KTC Group of
firms consisting of different entities made up of family members alone
and that no outsiders have any right in them. He has also deposed that his
mother in law is a partner of P2 firm, and that his name was used in the
agreement to prevent other business competitors of P2 from knowing
about the proposed purchase before it is completed. Significantly there is
no cross examination on this aspect at all.
Moreover going by the ordinary course of human conduct, no landowner

will sign a sale agreement involving more than 60 Lakhs with a person
without conducting a background check on the proposed buyer.
AGREEMENT TIME EXPIRED
The second line of defence if it can be called a defence, is that the time
fixed in A1 agreement was over on 01-11-2007 and hence D1 to D8 need
not perform the contract. This contention cannot hold water both in law
and on facts.
The judge made law is that time is not the essence of the contract in the
case of transfer of immovable property, unless special reasons are shown
regarding the necessity of strict adherence to the time frame. No such
special reasons are stated in A1. No such special reasons are pleaded in
the original or supplemental written statements by any of the defendants.
AIR 1967 SC 868 AND AIR 2008 SC 1205
Even in the chief examination, Dw1 does not put forward any
circumstance to draw an inference of importance for the time factor. His
attempt during cross examination to claim that the time fixed in A1 had
some connection with a school building has to be rejected as an
afterthought in the absence of proof, and on the ground that it is
unsupported by any pleading.
On the other hand the circumstantial evidence in the case will show that
time was not considered as the essence of the contract by both parties.
Though on the reverse of page 6 of A1, obviously written after the original
agreement was prepared, there is an addendum for the payment of three
Lakhs before 30th July 2007. The payment of this 3 Lakhs was made only
on 11.08.2007 as seen from the endorsement signed by Dw1 on the
reverse of Page 1 of A1. There was no demurrer or protest in receiving the
apparently belated payment. The delay will fit in with the version of the
plaintiffs that it was the seller who was seeking time to produce
documents to prove their title.
If time was intended to be an integral part of the contract, D1 to D8 would

not have received and accepted Rs. 20 Lakhs on 26-10-2007 with barely 5
days left for the expiry of the six months period mentioned in A1.
That in spite of D7 being a practising lawyer, aware of the necessity of a
cancellation notice to terminate the sale agreement, no such cancellation
notice was issued till June 2008, [when plaintiffs issued A2 notice]
clinches the issue that the time frame in A1 had no legal value.
Further when the delay in the completion of the sale was due to a genuine
defect in the title of the sellers, the inevitable inference can only be that
the it was the sellers who wanted time to explain the apparent defects in
their title, and that it was the conduct of the sellers that led to the breach of
the time frame.
Delay in giving title deeds
Plaintiffs can establish that the sale could not be completed only due to the
delay in the clearance of title of the defendants. The material question
arising in this context is when were the title deeds given to the Plaintiffs ?
According to the plaintiffs, A1 agreement was signed based only on B4

[1982 partition] deed and the back title deeds were to be provided later.
They would further contend that some of the title deeds were given only in
January 2008 which did not fully establish the title of the sellers and so A2
notice was issued in June 2008.
The stand of D1 to D8 on this aspect as borne out by their reply notice A3,
the written statements and the deposition of Dw1 is that all the relevant
documents had been given to the plaintiffs even before A1 agreement. If
this is found to be false, the inference that follows is that the sale was
delayed only due to their default.
The recital at Page 4 of A1 in Page 4 that the documents necessary for the
preparation of the sale deed will be provided is intrinsic evidence that all
the necessary documents had not been handed over.
Plaintiffs have produced the documents given by the sellers, to prove their
title, as No 4 to 8 along with the plaint. Counsel for D8 has confirmed this
by his question in cross examination of Pw1. [recorded as question and
answer]. These documents were handed over to Dw1 during the cross
examination and he has admitted and identified these documents [listed in
the plaint as Numbers 4 to 8] as the documents given to the plaintiffs.
It may be noted that the stand of the sellers is that no documents were
given to the plaintiffs after A1 agreement. Necessarily then, Documents 4
to 8 in the plaint list must have been given before the agreement.
The evidence of Dw1 exposes the falsity of that claim :
Document No 4 with the plaint [copy of B3] was obtained from the
SRO by Balakrishna Varier, the document writer in Koyilandy, only
on 18-09-2007 [ 4½ months after A1 agrt] as seen from the seal
Document No 6 in the plaint list [Order in SMC 2843 of 1975] was

issued to the sellers only on 18-01-2008.
Same is the case with Document No 7 in the plaint [Pattayam]

Confronted with these fatal facts, Dw1 attempted to say that some other
copies had been given earlier to the plaintiffs. That cannot be believed
because the definite case of the sellers is that all documents were given
before A1 and they have no case of any document being given after A1.
Moreover Counsel for D8, has suggested that documents 4 to 8 in the list
are the documents given to the plaintiffs which had been confirmed by
Dw1 in cross also.
The anomaly in title will be apparent only from document No 4 and 6 in

the plaint list which were made available only in September 2007 and
January 2008 respectively.
At the risk of repetition I may point out that the delay after the filing of
the suit was also due to the conduct of the sellers in opposing the
commission applications, and supporting the prejudiced report of the first
commissioner.
The second line of defence is therefore untenable and it is apparent that

the delay in the completion of the sale was not due to any action or
inaction of the plaintiffs.
No Escalation in Price
Another contention raised by the sellers, which is irrelevant in law, is that

the price of the property has increased and so the first plaintiff is trying to
resurrect the agreement which had been abandoned.
It is significant to notice that in A3 reply, the several written statements,

and even in the chief affidavit of Dw1, there is no reference to any exact
amount as the increased price for the property. The burden to state and
prove alleged increase is squarely on the defendants.
Increase in the price of the property by itself is not a ground to disallow

specific performance is the settled law. It is only in exceptional cases
where there has been enormous increase in the price that it becomes a
constituent factor in the exercise of discretion u/S 20 of the Act
AIR 2007 SC 1256 AIR 2012 SC 2035 AIR

2007 Del 1
Pw1 has asserted that there has been no increase in prices and has also
given the reasons in support thereof. Not a commercial or industrial or
residential locality. Distance of 1½ Kms from the main road is reported
by the Commissioner. Proximity to the sea coast is admitted.
The commissioner who visited the property as late as in October 2012 has
not been shown any developments around the property. Nothing prevented
the defendants from filing a work memo asking the commissioner to
report such facts if they existed.
It is of utmost importance that no sale deeds of any adjacent property

showing a higher price has been produced though Dw1 claims that such
sales have taken place and that he can produce sale deeds. An adverse
inference that there was no appreciable increase is therefore warranted
The Supreme Court may have enhanced the agreed consideration in some
cases where the time lag was of thirty to forty years. The power to do so
can be traced only to Article 141 of the Constitution of India which is not
applicable to any other court. [AIR 2012 SC 3094 and AIR 2013 SC434]
Some later decisions of the SC and the Kerala HC appear to have awarded
an increased price to the Vendor, as compensation, u/S 20 of Sp Rel Act.
This can be objected to by us on grounds:
S. 20 expressly states that escalation of price is not a reason to deny Sp.

Perf. Equity comes into play only to allow or disallow Sp. Perf, not to
change the price agreed upon by the parties.
If compensation is being given for the curial delay, there has to be an

enquiry as to who cuased the delay. If the delay was due to the deft's
tactics he should not be allowed to benefit from such delay. Only if Plff
was at fault can the price be increased. Conduct of the deft is the criterion
Most of the cases where price increase was allowed refer to special
circusmtances in favour of the Vendor.
Here there is no pleading to support the increase, and there is also no proof
of any such increase, even in this court. Arbitrary increase by the Court is
not permissible.
See AIR 2004 SC 4472; AIR 2015 SC580 and AIR 2015 SCW 1659
Contra 2017 KHC 788
AIR 2019 SC 4652 pleading by Deft necessary
The circumstances of this case, that there is apparent lacuna in the title of
the sellers, the proven defect in the 1982 partition deed wherein the sellers
have interpolated a larger area and their greed in demanding money for the
illegal area and the huge loss suffered by the purchaser due to the
avoidable escalation in building costs, justify the exercise of the discretion
of the court in favour of the plaintiffs, and against the defendants.

"Gomathinayagam Pillai v. Palaniswami Nadar"
(V 34 C 185)
(From Madras: AIR 1966 Mad 46)
Coram : 3 K. N. WANCHOO , J. C. SHAH AND R. S. BACHAWAT ,

JJ.
Civil Appeal No. 1043 of 1965, D/-2 -9 -1966.

Gomathinayagam Pillai and others, Appellants v. Palaniswami
Nadar , Respondent.
(A) Contract Act (9 of 1872) , S.55 - CONTRACT - Time when

essence of contract - Fixation of period within which contract is
to be performed does not make stipulation as to time essence of
contract - Nor default clause in contract by itself evidences
intention to make time of essence - Time is of essence if parties
intend it to be so - Intention may be evidenced either by express
stipulations or by circumstances which are sufficiently strong to
displace ordinary presumption that in contract for sale of land
stipulation as to time is not of essence - If time is not of essence
originally, it can be made of essence even subsequently by
serving notice on other party. AIR 1915 PC 83 and 1915 AC 386,
Foll. (Paras 4 and 5)
4. The facts which have a material bearing on the first question

have already been set out. Section 55 of the Contract Act which
deals with the consequences of failure to perform an executory
contract at or before the stipulated time provides by the first
paragraph :
"When a party to a contract promises to do a certain thing at or

before a specified time, or certain things at or before specified
times, and fails to do any such thing at or before the specified
time, the contract, or so much of it as has not been performed,
becomes voidable at the option of the promisee if the intention of
the parties was that time should be of the essence of the
contract."
It is not merely because of specification of time at or before
which the thing to be done under the contract is promised to be
done and default in compliance therewith, that the other party
may avoid the contract. @page-SC871
Such an option arises only if it is intended by the parties that

time is of the essence of the contract. Intention to make time of
the essence, if expressed in writing, must be in language which
is unmistakable : it may also be inferred from the nature of the
property agreed to be sold, conduct of the parties and the
surrounding circumstances at or before the contract. Specific
performance of a contract will ordinarily be granted,
notwithstanding default in carrying out the contract within the
specified period, if having regard to the express stipulations of
the parties, nature of the property and the surrounding
circumstances, it is not inequitable to grant the relief. If the
contract relates to sale of immovable property, it would normally
be presumed that time was not of the essence of the contract.
Mere incorporation in the written agreement of a clause imposing
penalty in case of default does not by itself evidence an intention
to make time of the essence.In Jamshed Kodaram Irani v. Burjorji
Dhunjibhai, ILR 40 Bom 289 : (AIR 1915 PC 83) the Judicial
Committee of the Privy Council observed that the principle
underlying S. 55 of the Contract Act did not differ from those
which obtained under the law of England as regards contracts for
sale of land. The Judicial Committee observed :
"Under that law equity, which governs the rights of the parties in
cases of specific performance of contracts to sell real estate,
looks not at the letter but at the substance of the agreement in
order to ascertain whether the parties, notwithstanding that they
named a specific time within which completion was to take
place, really and in substance intended more than that it should
take place within a reasonable time. Their Lordships are of
opinion that this is the doctrine which the Section of the Indian
Statute adopts and embodies in reference to sales of land. It may
be stated concisely in the language used by Lord Cairns in Tilley
v. Thomas, (1867) 3 Ch A 61 :
'The construction is, and must be, in equity the same as in a

Court of law. A Court of equity will indeed relieve against, and
enforce, specific performance, notwithstanding a failure to keep
the dates assigned by the contract, either for completion, or for
the steps towards completion, if it can do justice between the
parties, and if (as Lord Justice Turner said in Roberts v. Berry,
(1853) 3 De G. M. and G 284) there is nothing in the 'express
stipulations between the parties, the nature of the property, or
the surrounding circumstances', which would make it inequitable
to interfere with and modify the legal right. This is what is meant,
and all that is meant, when it is said that in equity time is not of
the essence of the contract. Of the three grounds . . . mentioned
by Lord Justice Turner 'express stipulations' requires no
comment. The 'nature of the property' is illustrated by the case of
reversions, mines, or trades. The 'surrounding circumstances'
must depend on the facts of each particular case'.
Their Lordships will add to the statement just quoted these

observations. The special jurisdiction of equity to disregard the
letter of the contract in ascertaining what the parties to the
contract are to be taken as having really and in substance
intended as regards the time of its performance may be excluded
by any plainly expressed stipulation. But to have this effect the
language of the stipulation must show that the intention was to
make the rights of the parties depend on the observation of the
time limits prescribed in a fashion which is unmistakable. The
language will have this effect if it plainly excludes the notion that
these time limits were of merely secondary importance in the
bargain, and that to disregard them world be to disregard nothing
that lay as its foundation "Prima facie, equity treats the
importance of such time limits as being subordinate to the main
purpose of the parties, and it will enjoin specific performance
notwithstanding that from the point of view of a Court of Law the
contract has not been literally performed by the plaintiff as
regards the time limit specified".
5. The Trial Court relied upon three circumstances in support of

its conclusion that time was of the essence of the contract of
sale: (i) though no time was prescribed by the oral agreement, in
the agreements in writing dated April 4, 1959 and April l5, 1959
there were definite stipulations fixing dates for performance of
the contract : (ii) that the second and the third agreements
contained clauses which imposed penalties upon the party guilty
of default; and (iii) that appellants 1 and 2 were in urgent need of
money and it was to meet their pressing need that they desired
to effect sale of the property. But the agreements dated April 4
and April 15 do not express in unmistakable language that time
was to be of the essence and existence of the default clause will
not necessarily evidence such intention.Fixation of the period
within which the contract is to be performed does not make the
stipulation as to time of the essence of the contract. It is true
that appellants 1 and 2 were badly in need of money, but they
had secured Rs. 3006 from the respondent and had presumably
tied @page-SC872 over their difficulties at least temporarily.
There is no evidence that when the respondent did not advance
the full consideration they made other arrangements for securing
funds for their immediate needs. Intention to make time of the
essence of the contract may be evidenced by either express
stipulations or by circumstances which are sufficiently strong to
displace the ordinary presumption that in a contract of sale of
land stipulations as to time are not of the essence. In the present
case there is no express stiation, and the circumstances are not
such as to indeicate that it was the intetion of the parties that
time was intended to be of the essence of the contract. It is true
that even if time was not originally of the essence, the appellants
could by notice served upon the respondent call upon him to take
the conveyance within the time fixed and intimate that in default
of compliance with the regquisition the contract will be treated
as cancelled.As observed in Stickney v. Keeble, 1915 AC 386
where in a contract for the sale of land the time fixed for
completion is not made of the essence of the contract, but the
vendor has been guilty of unnecessary delay, the purchaser may
serve upon the vendor a notice limiting a time at the expiration of
which he will treat the contract as at an end. In the present case
appellants 1 and 2 have served no such notice, by their letter
dated July 30, 1959 they treated the contract as at an end. If the
respondent was otherwise qualified to obtain a decree for
specific performance, his right could not be determined by the
letter of appellants 1 and 2.
AIR 2007 DELHI 1
"Kuldip Gandotra v. Shailendra Nath Endlay"
DELHI HIGH COURT
Coram : 1 BADAR DURREZ AHMED , J. ( Single Bench )
Kuldip Gandotra v. Shailendra Nath Endlay and Anr.

C. S. (OS) No. 901 of 2004, D/-4 -7 -2006.
(B) Specific Relief Act (47 of 1963) , S.20 - AGREEMENT TO SELL -

PLEA - CONTRACT - Specific performance - Suit for - Agreement
to sell - Defendant-vendor failed to fulfill its obligation of getting
property converted from leasehold to freehold - Plaintiff was
ready and willing to perform his part of contract - Plea by
defendant that Court should take judicial notice of rise in
property prices and ought not to grant decree as it would result
in bonanza for plaintiff - Not tenable - Neither party could be
permitted to resile from its commitment simply because it would
now get better deal elsewhere or simply because, ex post facto
other party stands to gain from transaction - Sanctity of binding
contract would be otherwise lost. (Para 20)
20.It was also argued by the learned counsel for the defendants
that a decree of specific performance ought not to be granted
where it would result in a bonanza for the plaintiff. He also
referred to several decisions. In the present case, he urged that
this Court should take judicial notice of the rise in property
prices. A consequence of which is that the plaintiff would have
gained substantially if a decree were to be passed in his favour.
This, to my mind, is one side of the argument. The other being
what about the defendants' being presented with a bonanza on
the same count, if a decree is not granted? While considering
these rival view points one must not lose sight of the fact that
the parties had entered into a solemn agreement and chose to
bind themselves to its terms. Could either party be permitted to
resile from its commitment simply because it would now get a
better deal elsewhere or simply because, ex post facto, the other
party stands to gain from the transaction? Certainly not. If such a
course were to be permitted then the sanctity of a binding
contract would be thrown out of the window.
"P. S. Ranakrishna Reddy v. M. K. Bhagyalakshmi"
= 2007 AIR SCW 1383
(From : Karnataka)*
Coram : 2 S. B. SINHA AND MARKANDEY KATJU , JJ.

P. S. Ranakrishna Reddy v. M. K. Bhagyalakshmi and Anr.
(B) Specific Relief Act (47 of 1963) , S.20 - AGREEMENT TO SELL -

IMMOVABLE PROPERTY - Specific performance - Agreement to
sell - Relief of specific performance - Cannot be denied on ground
that price of immovable property is on rise. 2004 AIR SCW 4653,
(2006) 7 SCC 756, Rel. on. (Para 19)
------------------------------------------------------------------------------------------------------------
--------------------------------------------------------

"Narinderjit Singh v. North Star Estate Promoters Limited"
(From : Punjab and Haryana)*
Coram : 2 G. S. SINGHVI AND SUDHANSU JYOTI

MUKHOPADHAYA , JJ.
Civil Appeal Nos. 4307 with 4306 of 2012 (arising out of S. L. P.

(C) No. 15051 with 15730 of 2011), D/-8 -5 -2012.
Narinderjit Singh v. North Star Estate Promoters Limited
(B) Specific Relief Act (47 of 1963) , S.20 - SPECIFIC RELIEF -

AGREEMENT TO SELL - Relief of specific performance -
Escalation of price - No ground to deny specific performance of
agreement to sell - More so when seller-defendant had neither
pleaded hardship nor produced any evidence to show that it will
be inequitable to order specific performance of agreement.
(Paras 20 , 21)
20.We are also inclined to agree with the lower appellate Court
that escalation in the price of the land cannot, by itself, be a
ground for denying relief of specific performance.In K. Narendra
v. Riviera Apartments (P) Ltd., (AIR 1999 SC 2309 : 1999 AIR SCW
2378) (supra), this Court interpreted Section 20 of the Act and
laid down the following propositions:
"Section 20 of the Specific Relief Act, 1963 provides that the

jurisdiction to decree specific performance is discretionary and
the court is not bound to grant such relief merely because it is
lawful to do so; the discretion of the court is not arbitrary but
sound and reasonable, guided by judicial principles and capable
of correction by a court of appeal. Performance of the contract
involving some hardship on the defendant which he did not
foresee while non-performance involving no such hardship on the
plaintiff, is one of the circumstances in which the court may
properly exercise discretion not to decree specific performance.
The doctrine of comparative hardship has been thus statutorily
recognized in India.However, mere inadequacy of consideration
or the mere fact that the contract is onerous to the defendant or
improvident in its nature, shall not constitute an unfair advantage
to the plaintiff over the defendant or unforeseeable hardship on
the defendant."
(Emphasis supplied)
21.In the present case, the appellant had neither pleaded

hardship nor produced any evidence to show that it will be
inequitable to order specific performance of the agreement.
"P. C. Varghese v. Devaki Amma Balambika Devi"
= 2005 AIR SCW 5622
(From : (2000)3 Ker. L. T. 330)
Coram : 2 S. B. SINHA AND R. V. RAVEENDRAN , JJ.
C. A. No. 1984 of 2002, D/-7 -10 -2005.

P. C. Varghese v. Devaki Amma Balambika Devi and others.
(B) Specific Relief Act (47 of 1963) , S.20 - CONTRACT - DECREE -

Alternative plea - For refund of earnest amount and damage -
Cannot itself be bar to claim decree for specific performance of
contract. (Para 32)
32.The submission of Mr. Reddy to the effect that this Court

should not exercise its discretionary jurisdiction is stated to be
rejected. No such contention has been raised before the High
Court. Even otherwise it has not been shown, having regard to
the conduct of the parties, as to why such @page-SC151 a
discretionary jurisdiction should not be exercised. An alternative
plea of refund of earnest amount and damage cannot itself be a
bar to claim a decree for specific performance of contract.
"Prakash Chandra v. Angadlal"
(From : Bombay)
Coram : 3 JASWANT SINGH , R. S. PATHAK AND A. P. SEN , JJ.

Prakash Chandra , Appellant, Angadlal and others, Respondents.
Specific Relief Act (47 of 1963) , S.20 - AGREEMENT TO SELL -

Agreement for sale - Suit for specific performance - Refusal to
grant decree for specific performance - Validity. Decision of
Bombay High Court (Nagpur Bench), Reversed.
The ordinary rule is that specific performance should be granted.

It ought to be denied only when equitable considerations point to
its refusal and the circumstances show that damages would
constitute an adequate relief.
BEEGEE & ESSBEE
B. G. Bhaskar B.Sc. B.L. Subin B Babu B A [Law]
Ph: 949 564 0246 Ph : 949 564 0225
E Mail: [email protected] E Mail :
[email protected]
ADVOCATES. BEMPLASSERI THALI. CALICUT 673 002. KERALA STATE
CONFIDENTIAL
Mr. P. V. Nidhish
PVS Apartments
KTC Buildings
YMCA Road. Kozhikode 1
SUB: Kappad - Suit O S 71 of 2008 - Sub Court,

Koyilandy Decreed with costs - Follow up action
Sir,
1. Acknowledging your personal Thanks for my professional work in

connection with the above case, let me inform you that the Court has
directed PVSA to deposit in court, the balance purchase price within
a time frame of sixty days. This is mandatory and essential for our
success in the appeal, which the other side is bound to file.
2. The court has found that the area of land available for sale is 3.85
acres and so the total sale price payable will work out to Rs.
61,60,000 [3.85 x 16000 = Rs. 61,60,000].Since Rs. 26,00,000 has
already been paid, the balance amount payable works out to Rs.
35,60,000
3. After depositing the amount, we have to file an execution application

in the Sub Court, to direct the owners to execute the sale deeds in
favour of PVSA. If they fail to do so, we have to produce a draft of
the sale deed for approval by the Court. Once the draft is approved,
the Court will depute its official to execute and register a sale deed
before the concerned SRO in favour of the PVSA. Then the Court
will depute an Amin to give possession of the property to PVSA.
4. In the ordinary course, I expect the landowners will file an appeal

and ask for a stay of the execution of the sale deed and the delivery of
the property to PVSA.
5. The appeal in this case has to be filed in the High Court and they
have three months' time to do so, after getting their getting a certified
copy of the judgment and decree. Naturally they will be asking for a
stay of further proceedings in the Sub Court. The first appellate court
usually grants the stay pending the hearing of the appeal.
6. If PVSA deposits the balance consideration before the appeal is filed

by the landowners, I can request the court for an early hearing of the
appeal. Normally first appeals take five to seven years before they are
heard because of the pendency of older appeals. Some judges permit
early hearing while others do not permit early hearing as they feel
that it is like jumping the queue. If you are lucky, the appeal itself can
be heard within six months.
7. But I am planning to try a new gambit asking for a receiver to be

appointed for the property pending the hearing of the appeal, and
seek a direction to the Receiver to construct a compound wall and a
gate for the property ordered to be given to the PVSA, now itself,
which will put the property in the possession of the court and prevent
possible trespass that the landowners may permit or persuade others
to commit, since they are likely to fail in the appeal. Obviously the
expense will have to be incurred by the PVSA. Please work out the
expenses for the construction of such a wall and inform me whether
you can undertake this now.
8. What I have stated above has not been attempted by anyone in any
case so far, and like the new variations that Anand Viswanathan is
attempting in the World Chess, it may or may not work out. I shall
also try to get the court to impose some more conditions to speed up
the hearing of the appeal.
9. Another very important aspect that I would like to point out at this
stage is the extra ordinary effort of your DGM Legal who was
instrumental in detecting the defect in title. Majority of lawyers, both
practising or employed as law officers, would have either missed or
overlooked the latent defect in title that would have resulted in
irreparable injury to the PVSA.
10. You may recall that the first commissioner filed a report and plan
which was fatal to our case, and that even the report of the second
commissioner Mr. Vijayan [on the strength of which we won the
case] had to be remitted twice for corrections. A total of eight plans
[Two by first commissioner and six by the second commissioner] had
to be studied minutely and the errors in each of them had to be
discovered. Her input in the above matters as well as in compiling the
materials for the cross examination of their witness, and unearthing
the citations of numerous decisions was of invaluable assistance in
the case.
11. Similar exactitude was evident in her discovering the flaw in the
recent Kannur matter where three lawyers of three different Banks
and a retired District Judge had missed the mismatch in the gift and
partition deeds and in the earlier detection of the insurmountable
difficulty of a canal and an over bridge regarding a property in
Ernakulam District.
12. Unlike the garden variety of cheque cases, and the run of the mill
consumer cases, this case of specific performance in which you have
got a favourable verdict is very difficult. Apart from the high stakes
involved in this case, the project when completed will be the
Kohinoor in the diadem of the PVS Apartments. Though it is not
within my realm as a lawyer, I sincerely feel that your DGM Legal
deserves a promotion for the success of this case.
Dated 22nd November 2014

B G Bhaskar
FORM NO 35 [RULE196]
STATEMENT OF COSTS AND CERTIFICATE OF RECEIPT OF PLEADER'S FEE
OS 71 OF 2008
Statement of costs filed on behalf of the Plaintiffs
N PARTICULARS AMOUNT AMOUNT REMARKS

O CLAIMED ALLOWED
1 2 3 4 5
1 COURT FEE PAID RS .

5,68,800.00
2 STAMPFOR VAKALATH 60.0
0
3 DO FOR EXHIBITS 13.50
4 FOR PETITIONS 12.00
5 SERVICE OF PROCESS 25.00
6 SUBSISTENCE FOR
WITNESSES
7 COMMISSIONER'S FEE INITIAL
5,000.00 BATTA
ADDL BATTA
10,000.00 INITIAL
BATTA
ADDL BATTA
SURVEYOR'S
FEE
8 PLEADER'S FEE SENIOR 3,46,400.00
9 PLEADER'S FEE JUNIOR 1,15,467.00
10 OTHER ITEMS
TOTAL
Date :
Signature
I certify that I have received Rs. 3,46,400.00 from the second plaintiff as my fee
in the case
enior Pleader for Plaintiffs
I certify that I have received Rs. 1,78,200.00 from the second plaintiff as my fee
in the case
Junior Pleader for Plaintiffs
BEEGEE & ESSBEE
B. G. Bhaskar B.Sc. B.L. Subin B Babu B A [Law]
Ph: 949 564 0246 Ph : 949 564 0225
E Mail: [email protected] E Mail :
[email protected]
ADVOCATES. BEMPLASSERI THALI. CALICUT 673 002. KERALA STATE
CONFIDENTIAL
The DGM Legal

KTC Group
KTC Buildings
YMCA Road. Kozhikode 1
SUB: Kappad - Suit O S 71 of 2008 - Sub Court,

Koyilandy - Expected Appeal - Follow up action
Madam,
In addition to the deposit of the balance sale consideration in court, as

soon as you can arrange the funds [Rs. 39 Lakhs] I would like to have
some data to be presented to court regarding the possible escalation in the
cost of the proposed project of PVSA at Kappad. This will be useful in
requesting the appellate court to impose some conditions on the appellants
and not to grant a blanket stay, as is usually given in such cases.
With this end in view, you may ask Mr. Rajeev, in his capacity as an
Engineer to prepare the following data at the earliest :
A lay out plan of the proposed Kappad project based on the

Commissioner's plan in the suit, showing the internal roads, common
facilities like conference hall, park, play area for children, guard room,
room for the power plant, water tank etc and the plots for the villas
An elevation plan of the common or different patterns of Villas with floor

plans/section plan
Estimate of the cost for the compound wall, landscaping, etc
The PAC for the construction of the Villas, usually prepared before
inviting tenders, based on the present PWD rates, with the expected
percentage increase.
A separate PAC for the construction costs may also be prepared showing
the probable cost if we were able to start the construction in 2008, as well
as the projected cost [in the form of a graph] if the construction is delayed
to 2016-17.
This plan is intended only for the stay application and is not to be
submitted to the local authority, so that a totally different plan can be
prepared through an architect when actual work is being undertaken.
Dated 29th November 2014

OS 71 OF 2008

1. I am the Managing Partner of PVS Apartments, [the second plaintiff

in the suit] and I am filing this affidavit on behalf of the first plaintiff
also. I am conversant with the facts of the case.
2. This court has passed a decree dated 18-11-12014in the above suit,
certified copy of which was received by my counsel on 08-01-2015.
It is seen that there are some clerical mistakes in the decree detailed
below:
3. Para 2 of the operative part of the decree reads " that the plaintiffs
together "do execute a sale deed……". The Court would have meant
only defendants since the suit by plaintiffs is for the specific
performance of the sale agreement by the defendants.
4. Similarly lower down in the same para, after specifying the property
to be sold, with reference to alphabets and the area, the Exhibit No of
the relevant plan is shown as C1[D]. The plan C1 [D] does not show
the alphabets TT1YZOPST1 nor is there an yellow shaded portion
therein. Obviously the Court intended C1[E] plan which contains the
data.
5. The letter T1 is missing in the copy of Exhibit C1[E] plan annexed to
the decree. T1 is the point parallel to the point T marked in the plan
situated to the east of the said point T so as to exclude the yellow
shaded portion to the east of T.
6. It is therefore necessary to correct the decree rectifying the above
mentioned clerical/typographical mistakes and hence this application.
The facts stated above in paragraphs 1 to 6 are true to the best of my
knowledge and information, and the inferences made therein are true to
the best of my belief.
Dated January 2015

Solemnly affirmed and signed this on the ………..
Day of January 2015 at Calicut, the contents of
This affidavit having been read over and explained
to the deponent in the vernacular.
Deponent

KOYILANDY
OS 71 OF 2008
I. A. OF 2015

4. T K Girija Amma
5. T K Sasidharan Nair Respondents
6. T K Ramadevi Amma Defendants
Application submitted by B G Bhaskar, Advocate for Petitioners under

Section 152 read with Ss 153 and 151 of the Code of Civil Procedure for
correction of clerical/typograpical mistakes in the decree dt18-11-2014
Court may be pleased to pass an order amending the decree by correcting
the three clerical/typographical mistakes detailed in the accompanying
affidavit.
Dated January 2015

200 6 SCC 649
4
1 196 AIR SC 3 Delay by itself is not a ground to

5 1405 refuse sp. Rel as long as it is within
the limitation period
2 197 AIR SC1241 3 Rule is to allow sp perf. Deft has
9 put up building no excuse.
3 199 AIR SC Earliest case referring to increase
5 1607 in price due to delay in the decree;
ignore price increase pendente lite;
else no suit can be decreed
4 200 AIR SC sp perf allowed in RSA – repeatedly
2 2290 held increase in price and mere
delay not grounds to refuse sp perf.
Addl consideration awarded by one
judge objected by the other judge
5 200 AIR SC 909 Kerala kaumudi case – para 151 –
4 increase in price not to be
considered in sp perf
6 200 AIR SC Increase in price not to prevent sp
4 4472 perf
7 200 AIR SC Incerase in price not to prevent sp
4 3940 perf
8 199 AIR SC Comparative hardship to be
9 2309 considered – hardship must be
something which defendant did not
foresee
9 200 [4]SUPREME No pleading of hardship – cannot be
1 510 considered u/S 20
10 201 AIR SC Increase in price no ground to deny
2 2035 sp perf – No plea of hardship -
cannot be considered
198 AIR SC 2 – no discussion – hardship since
7 1641 deft had built godowns – sp perf
changed to damages – against 3
judges ruling in 1979 sc 1241
198 AIR SC Sp perf refused as vendee in agrt
7 2328 had waived his right; so his
assignee cannot get sp perf
199 AIR SC 105 Addl price suggested and agreed by
4 parties
199 AIR SC Plff found to have made 3 false
6 2814 allegations; hence Sp perf denied
199 AIR SC 2 – for the first time increase in
7 1751 price is stated as ground to
disallow sp per. Other
circumstances also considered –
contrary to 3 judges ruling in 1965
SC 405
199 AIR SC Suit for sp perf can be referred to
9 2102 arbitration – ruling approved in Booz
Allen
200 AIR SC 2. Addl amounts to be paid to deft.
0 3106 No reasoning
200 AIR SC Vendor in financial difficulty – first
1 2783 sale agrt cancelled – second agrt
onerous sp perf refused
200 AIR SC Deft bona fide purchaser without
2 1279 notice in poss and enjoyment – plff
is subsequent assignee – sp perf
refused – return of advance of small
amount
200 AIR SC 2. Addl amount ordered to be paid
8 1378 without any reasoning due to
increase in price – contrary to 3
judges ruling
201 AIR SCW Market price as on date of judgt to
3 2594 be paid – can be only u/Art 142
201 AIR SC 9 2. Addl amount ordered to be paid
5 by Vendee – reasoning incorrect
201 AIR SC 580 2. Again reasoning is escalation of
5 price – contrary to 3 judges ruling
201 AIR SC RSA allowed for sp perf on payment
8 1961 of current market value on
judgment date – No reasons
The Court of Chancery in Attorney General v. Wheate followed Rooke's case and
observed: (ER p. 666)
The Court of Chancery in Attorney General v. Wheate followed Rooke's case and
observed: (ER p. 666)...the law is clear, and courts of equity ought to follow it in their
judgments concerning titles to equitable estates; otherwise great uncertainty and
confusion would ensue. And though proceedings in equity are said to be secundum
discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui
consulta patrum, qui leges juraque servat. And as it is said in Rooke's case, that discretion
is a science not to act arbitrarily according to men's wills and private affections; so the
discretion which is to be executed here, is to be governed by the rules of law and equity,
which are not to oppose, but each in its turn to be subservient to the other. This
discretion, in some cases follows the law implicitly; in others assists it, and advances the
remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no
case does it contradict or overturn the grounds or principles thereof, as has been
sometimes ignorantly imputed to this Court. That is a discretionary power, which neither
this, nor any other court, not even the highest, acting in a judicial capacity, is by the
constitution entrusted with. This description is full and judicious, and what ought to be
imprinted on the mind of every Judge. Quoted in AIR 2015 SC 3389
HC, KERALA RFA 129 OF 2015
RESPONDENTS
SC, KOYILANDY OS 71 OF 2008
PLAINTIFFS
1. T.Vrij Mohan Vs 1. T K Vasudevan Nair 2. T K Janardanan Nair

2. M/s PVS Apartments 3. T K Rugminidevi Amma 4. T K Girija
Amma
5. T K Sasidharan Nair 6. T K Ramadevi
Amma
7. T K Radhakrishnan Nair 8. T K
Jayalakshmi Amma
9. T K Sreekumaran Nair 10. T K Sarojini
Amma
NOTES OF ARGUMENTS FOR RESPONDENTS 1&2
Fact profile
Appeal is by defendants 1 to 8 in a Suit for specific

performance of A1 sale agreement dated 01-05-2007
between defendants 1 to 8 and the first plaintiff, fixing
the price not on lump sum basis, but at the rate of Rs.
16,000 per cent. The agreement provides for the
measurement of the area. The agreement also
stipulates that the sale deed is to be executed by D1
to D8 in favour of the first plaintiff or his nominee.
According to the plaintiffs, A1 agreement was signed

on the basis of the B4 partition deed of 1982 between
Defendants 1 to 10 in which the area allotted to D1 to
D8 was shown as 4 acres and 32 cents. The back title
deeds of the property were made available only later.
When they were scrutinised, clear title was not seen
in respect of the 4.32 acres. Measurement of the area
can be undertaken only after the title as per the deeds
is clear in respect of the area shown in B4 partition.
The plaintiffs contend that the D1 to D8 were not able

to satisfactorily explain the defects pointed out in the
title, noticed from the documents made available to
the plaintiffs, and that this is the only reason for the
sale not being completed as agreed.
A2 notice was issued to D1 to D8 on 10-06-2008
referring to the defective title calling upon them to
provide additional materials to establish their title
clearly. The glaring defect in title was also narrated in
the notice.
In A3 reply dated 24-06-2008, D1 to D8 would say that

they do not have any further documents to be
produced, that all the available documents had been
given before the agreement which according to them
established their title to the entire area shown in B4
partition deed.
Suit was filed within a week, in July 2008 itself with

detailed averments regarding the defects in the title
of D1 to D8 as noticed by the plaintiffs. The copies of
documents handed over by the plaintiffs were also
produced with the plaint as Documents 4 to 8 in the
plaint list.
As soon as the WS was filed, plaintiffs applied by I A

1592 of 2008 in October 2008, for the issue of a
commission to determine the area covered by the title
deeds given by D1 to D8. The final Commissioner's
report was filed only on 16th January 2014.
This time lag of five years was due to the recalcitrant

attitude of D1 to D8 who opposed the issue of the
commission, and also opposed the application to set
aside the report of the first commissioner. This court
held that the report of the first commissioner was
wrong and baseless and set aside that report. The
report of the second commissioner had to be remitted
twice before the final report was filed. The reports
and plans may be marked :
12-01-2012 First Report of Adv Vijayan C1

Plan I by Surveyor C1A
Plan II by surveyor C1B
Plan III by surveyor C1C
Plan IV by Surveyor C1D
Plan V by Commissioner C1E
04-07-2013 Second Report by Adv Vijayan C2

Plan VI by Surveyor C2A
16-01-2014 Report of Adv Vijayan C3

C1E reveals that :
[1] B4 1982 partition deed has included larger area

than what has been obtained under the prior title
deeds : yellow shaded portions;
[2] that part of the property over which D1 to D8 claim

title [44½ cents] lies in RS 1 of Chemanchery Amsom
which is not included in any of the prior deeds and not
even in B4 partition deed. See C1D. [B1, B3, and B4
show only RS 5 of Edakkulam amsom and RS 8 of
Chemancheri amsom - Part of the property has been
found by the Commissioner to be in RS 1 of
Chemanchery amsom which is not there in any of the
documents
The total area over which D1 to D8 have title under B4

partition has been reported by the Commissioner in C3
report as 4 A 14.6 cents [Not 4.32]
This is demarcated as T1 Y Z O P S T1
Out of this D1 to D8 have already sold 30 cents
Balance remaining available for sale to plaintiffs on
the date of suit is only 3A 84.6 cents [as against 4.32
acres in A1 agreement
The amended plaint schedule is T1 Y Z O P S T1 from

which the 30 cents sold has to be deducted
Hence the consideration payable by the Plaintiffs

works out to Rs. 61,60,000 [3.85 x 16000 = Rs.
61,60,000]. The additional amount to b epaid has been
deposited by the plaintiffs in the trial court soon after
the decree.
An applicaton to correct clerical errors in the decree

is pending
Ready & Willing
No strait jacket formula - depends on circumstances

of each case
Plaintiffs established the following genuine disputes
of title -
A. 44½ cents in RS 1 of Chemanchery Amsom not

seen in any title deed, not even in B4 partition
B. No property in RS 8 of Chemanchery Village at all
though B1, B3 and B8 refers to the property in RS
8
C. Yellow shaded portions in C1E are outside the

area covered by title deeds. This covers 17 cents
[4.32 minus 4.15] See C1E and C3
D. B1 which is the only acquisition of Gopalan Nair

covers only 7 A 16 Cents [5 x 47 = 19.58 29 x
114 = 275.5 50 x 77 = 320.8 50 x 24= 100]
[B2 is the acquisition deed of a different property

called Chalil Kadappuram which is shown as Item
2 of B3 partition and set apart to D9 over which
D1 to D8 do not get any right at any time]
In B3 partition between Gopalan Nair and D9,

Gopalan Nair,
[father of D1 to D8] was allotted only 3.84 + 1.00
= 4A and 84
Cents.
Out of this an area of 1 A 7½ Cents were allotted

to D10 and D9 as items 2 and 3 of B4 partition.
Balance area which is available for division
among D1 to D8 can only be 4.84 minus 1.07½ =
3 A 77½ Cents and cannot be 4 .32 as shown in
B4
E. Land Tribunal Order and Pattayam in the joint

names of the Widow of Gopalan Nair, D1 to D8
and D10 [children of Gopalan Nair] refer only to an
area of 3 A and 70 Cents [vide LT order and
Pattayam produced as Documents 6 and 7 with
plaint] admitted by Dw1.
F. LT order and Pattayam have omitted the name of

D9, son of Gopalan Nair which is admitted by
Dw1. No steps taken to correct the obvious
mistakes if they are mistakes.
G. Plaintiffs have paid not a mere nominal advance

but a substantial amount of 26 Lakhs before suit
which works out to 42% of the total consideration
H. A2 notice was issued by plaintiffs on 10-06-2008

asking for documents. No notice of cancellation
was issued by the sellers to First Plaintiff till A2
notice though the time fixed in A1 agreement
expired on 01-11-2007 [7 months]
I. Full court fee of more than Rs. 4½ Lakhs paid by

plaintiffs for the entire area of 4 and odd acres
alleged by D1 to D8 to belong to them.
Ability to pay the balance sale consideration
This was the main defence taken up in the trial court :

that P1 did not have the financial capacity to pay the
balance sale consideration within the fixed time
schedule and backed out of the agreement.
Ability to pay as such is not prescribed as a

precondition for a suit under S of Sp. Rel. Act. The
plaintiff should be ready and willing to perform his
part of the agreement under S.16 which impliedly
includes ability to pay coming within the ambit of
readiness.
Should the plaintiff in a suit for Sp Perf prove he had a

cash balance/deposit of the entire amount payable by
him, from the date of the agreement till the date of
suit and thereafter. Neither statute nor judgments say
so. The plaintiff need prove only that he has the
ability to raise funds to make the payment when
required.
AIR 2009 SC 2157
Modern day business is not carried on with full capital

outlay as in the ancient past. Banks are no longer a
mere parking place for surplus funds. 20 th century has
witnessed the growth, phenomenal growth of NBFCs
who offer financial participation in all business
ventures, even in the high risk category of commercial
cinema, costing Crores, which is more unpredictable
than the glorious uncertainty of cricket.
The very property that is intended to be bought can

be shown as security and impressed with an equitable
mortgage in favour of the Bank or NBFC, who will pay
the price directly to the owner; and collect the original
sale deed from the Bank which will be retained as
security. Money will be advanced for the construction
also. When the built up units are finally being sold to
the customers, a proportionate amount will have to be
paid to the financier out of the money got from the
customer.
Ancient concepts of Personal funding and even

bootstrapping are all passé' and antediluvian. Modern
business banks on Venture Capital which promotes
activity with long term growth potential even though
they involve high risk and returns are illiquid. The
PVSA with an impressive track record has crossed the
initial hurdles/ hiccups and has reached the stage of
mezzanine funding.
A7 series are the balance sheets of the second

plaintiff for the last few years showing the volume of
business transacted by it. --- 16 completed projects
worth over Rs. 150 Crores; more than 900 residential
units -- Pw1 had given these details on which there
has been no cross examination at all.
A4 to A6, A8 to A9 are documents evidencing grant of

financial assistance to the second plaintiff by different
institutions. A4 is of 2007 [when A1 agreement was
signed] and shows sanction of 500 Lakhs by The
Syndicate Bank for the purchase of land. A5 is the
sanction of another 450 Lakhs for the building work in
that land. A6 is sanction from the HDFC Bank of
Eight Crores for phase II and III of the buildings in the
project called IRIS. A8 is the sanction letters from the
KFC for 500 Lakhs to PVSA for the project called
Fortune at Kannur. A9 is the sanction letter by the
KFC to KTC for 2 Crores for Project Vydoorya in
Calicut.
Just as India and many other nations of the world

resort to deficit financing, it is now considered as
economic foolishness to commence or carry on any
large business with one's own capital. Courts can
take judicial notice of this economic scenario.
The Kerala High Court and the Supreme Court had

occasion to consider this question in a different
context. S. 11 [iv] [iv] of our Rent Control Act permits
eviction on the ground of reconstruction. The Statute
expressly states that the applicant has to prove
"ability to rebuild" which means financial capacity.
1971 KHC 571999 KHC 8 AIR 2006 SC 1930

Extreme case of indigent suit AIR 1982 ALL 47
The only other aspect to be considered by this court is
the connection between the two plaintiffs. That the
sale agreement is not personal to the first plaintiff is
apparent from the provision for the nominee, to whom
the sale deed is to be executed. It is not necessary for
the seller to know who the nominee is.
Pw1 has explained his close connection with P2. P2 is

a partnership business whose Managing Partner is P V
Gangadharanas. The firm has only 2 other partners P V
Hemalatha and P V Chandran as shown in A7 balance
sheets. Pw1 has stated that this firm is part of the
KTC Group of firms consisting of different entities
made up of family members alone and that no
outsiders have any right in them. He has also deposed
that his mother in law is a partner of P2 firm, and that
his name was used in the agreement to prevent other
business competitors of P2 from knowing about the
proposed purchase before it is completed.
Significantly there is no cross examination on this
aspect at all.
Moreover going by the ordinary course of human

conduct, no landowner will sign a sale agreement
involving more than 60 Lakhs with a person without
conducting a background check on the proposed
buyer.
AGREEMENT TIME EXPIRED
The second line of defence if it can be called a

defence, is that the time fixed in A1 agreement was
over on 01-11-2007 and hence D1 to D8 need not
perform the contract. This contention cannot hold
water both in law and on facts.
The judge made law is that time is not the essence of

the contract in the case of transfer of immovable
property, unless special reasons are shown regarding
the necessity of strict adherence to the time frame.
No such special reasons are stated in A1. No such
special reasons are pleaded in the original or
supplemental written statements by any of the
defendants.
AIR 1967 SC 868 AND AIR 2008 SC 1205

Even in the chief examination, Dw1 does not put
forward any circumstance to draw an inference of
importance for the time factor. His attempt during
cross examination to claim that the time fixed in A1
had some connection with a school building has to be
rejected as an afterthought in the absence of proof,
and on the ground that it is unsupported by any
pleading.
On the other hand the circumstantial evidence in the

case will show that time was not considered as the
essence of the contract by both parties.
Though on the reverse of page 6 of A1, obviously

written after the original agreement was prepared,
there is an addendum for the payment of three Lakhs
before 30th July 2007. The payment of this 3 Lakhs
was made only on 11.08.2007 as seen from the
endorsement signed by Dw1 on the reverse of Page 1
of A1. There was no demurrer or protest in receiving
the apparently belated payment. The delay will fit in
with the version of the plaintiffs that it was the seller
who was seeking time to produce documents to prove
their title.
If time was intended to be an integral part of the

contract, D1 to D8 would not have received and
accepted Rs. 20 Lakhs on 26-10-2007 with barely 5
days left for the expiry of the six months period
mentioned in A1.
That in spite of D7 being a practising lawyer, aware of

the necessity of a cancellation notice to terminate the
sale agreement, no such cancellation notice was
issued till June 2008, [when plaintiffs issued A2
notice] clinches the issue that the time frame in A1
had no legal value.
Further when the delay in the completion of the sale

was due to a genuine defect in the title of the sellers,
the inevitable inference can only be that the it was
the sellers who wanted time to explain the apparent
defects in their title, and that it was the conduct of
the sellers that led to the breach of the time frame.
Delay in giving title deeds

Plaintiffs can establish that the sale could not be
completed only due to the delay in the clearance of
title of the defendants. The material question arising
in this context is when were the title deeds given to
the Plaintiffs ?
According to the plaintiffs, A1 agreement was signed

based only on B4 [1982 partition] deed and the back
title deeds were to be provided later. They would
further contend that some of the title deeds were
given only in January 2008 which did not fully
establish the title of the sellers and so A2 notice was
issued in June 2008.
The stand of D1 to D8 on this aspect as borne out by

their reply notice A3, the written statements and the
deposition of Dw1 is that all the relevant documents
had been given to the plaintiffs even before A1
agreement. If this is found to be false, the inference
that follows is that the sale was delayed only due to
their default.
The recital at Page 4 of A1 in Page 4 that the

documents necessary for the preparation of the sale
deed will be provided is intrinsic evidence that all the
necessary documents had not been handed over.
Plaintiffs have produced the documents given by the

sellers, to prove their title, as No 4 to 8 along with the
plaint. Counsel for D8 has confirmed this by his
question in cross examination of Pw1. [recorded as
question and answer]. These documents were handed
over to Dw1 during the cross examination and he has
admitted and identified these documents [listed in the
plaint as Numbers 4 to 8] as the documents given to
the plaintiffs.
It may be noted that the stand of the sellers is that no

documents were given to the plaintiffs after A1
agreement. Necessarily then, Documents 4 to 8 in the
plaint list must have been given before the agreement.
The evidence of Dw1 exposes the falsity of that

claim :
Document No 4 with the plaint [copy of B3] was

obtained from
the SRO by Balakrishna Varier, the document
writer in
Koyilandy, only on 18-09-2007 [ 4½ months
after A1 agrt] as seen from the seal
Document No 6 in the plaint list [Order in SMC

2843 of 1975]
was issued to the sellers only on 18-01-2008.
Same is the case with Document No 7 in the

plaint [Pattayam]
Confronted with these fatal facts, Dw1 attempted to

say that some other copies had been given earlier to
the plaintiffs. That cannot be believed because the
definite case of the sellers is that all documents were
given before A1 and they have no case of any
document being given after A1. Moreover Counsel for
D8, has suggested that documents 4 to 8 in the list
are the documents given to the plaintiffs which had
been confirmed by Dw1 in cross also.
The anomaly in title will be apparent only from

document No 4 and 6 in the plaint list which were
made available only in September 2007 and January
2008 respectively.
At the risk of repetition I may point out that the delay

after the filing of the suit was also due to the conduct
of the sellers in opposing the commission
applications, and supporting the prejudiced report of
the first commissioner.
The second line of defence is therefore untenable and

it is apparent that the delay in the completion of the
sale was not due to any action or inaction of the
plaintiffs.
No Escalation in Price
Another contention raised by the sellers, which is

irrelevant in law, is that the price of the property has
increased and so the first plaintiff is trying to
resurrect the agreement which had been abandoned.
It is significant to notice that in A3 reply, the several

written statements, and even in the chief affidavit of
Dw1, there is no reference to any exact amount as the
increased price for the property. The burden to state
and prove alleged increase is squarely on the
defendants.
Increase in the price of the property by itself is not a

ground to disallow specific performance is the settled
law. It is only in exceptional cases where there has
been enormous increase in the price that it becomes a
constituent factor in the exercise of discretion u/S 20
of the Act
AIR 2007 SC 1256 AIR 2012 SC 2035 AIR 2007

Del 1
Pw1 has asserted that there has been no increase in

prices and has also given the reasons in support
thereof. Not a commercial or industrial or residential
locality. Distance of 1½ Kms from the main road is
reported by the Commissioner. Proximity to the sea
coast is admitted.
The commissioner who visited the property as late as

in October 2012 has not been shown any
developments around the property. Nothing prevented
the defendants from filing a work memo asking the
commissioner to report such facts if they existed.
It is of utmost importance that no sale deeds of any

adjacent property showing a higher price has been
produced though Dw1 claims that such sales have
taken place and that he can produce sale deeds. An
adverse inference that there was no appreciable
increase is therefore warranted
The Supreme Court may have enhanced the agreed

consideration in some cases where the time lag was
of thirty to forty years. The power to do so can be
traced only to Article 142 of the Constitution of India
which is not applicable to any other court. [AIR 2012
SC 3094 and AIR 2013 SC434]
It is true that in some cases, the courts have awarded

an additional amount over and above the agreed price
to the Vendor, or directed the Vendee to pay the
market price on the date of the final judgment. 2015
SCW 1659 and 2017 KHC 788. Both are unwarranted
by law, as explained below:
The source of the power of the court to shift from right
to equity, or for equity to supersede law, can be
traced only to S. 20 of the 1963 Act. It has to be
noticed that the legislature in its wisdom, has deleted
the discretionary power of the court by removing te
ol;d S 20 from the Act in 2018. Whether that
amendment is prospective or retrospective will
depend on the question whether S 20 as it stood had
created a vested right in favour of the Vendor.
A plain rading of the Section before 2018, will make it

clear that it did not confer any right on the Seller, but
only enabled the court to mould the relief in specified
circumstances. When no right was vested in a party,
the amendment can and must have retrospective
effect. The discretion in this case was in existence
from 1863 onwards. If the Legislature felt that it was
unnecessary, it can only be a deliberate exercise, to
change the existing law, after being fully aware of the
several decisions of courts, exercising that power, to
grant additional amounts to the Vendor, purporting to
balance the equity consequent to the phenomenal rise
in prices pendente lite.
Even if the amendment is not considered to be

retrospective and is to be restricted to prospective
only, that circumstance is certainly bound to be
weighed by the court in exercising the erstwhile
power to a case that is being decided after the
amendment. This is of special importance because
even under the pre amendment provision, there was
the explnation expressly stating that escalation of
price is not a reason to deny Sp. Perf. The benefit of
the ris ein prices must go exclsuively to the purchaser
in cases where he is eligible to get specific
performance. .
If additional amounts are attempted to be allowed as

compensation for the time delay, there has to be an
enquiry as to who caused the delay. Curial delay does
not justify the imposition of any burden on the
plaintiff. If the cause of the delay is the conduct of the
defendant he should not be allowed to benefit from
such delay. Only if Plff was at fault can the price be
increased. Conduct of the defendant must be the
criterion
The plea for payment of additional amount to the
Vendor due to the price increase of land, directy
raised in AIR 1995 SC 1607 was rejected by the Court
with reasons. This was preceded by two 3 judges
ruling in
1 196 AIR SC 3 Delay by itself is not a ground to

5 1405 refuse sp. Rel as long as it is within
the limitation period
2 197 AIR SC1241 3 Rule is to allow sp perf. Deft has
9 put up building no excuse.
3 199 AIR SC Earliest case referring to increase
5 1607 in price due to delay in the decree;
ignore price increase pendente lite;
else no suit can be decreed
It is without rererence to the larger bench decisions

that some subsequent 2 judges started allowing
payment of additional amount to the Vendor. All the
subsequent judgments are therefore to be discarded
as per incurium.
As against the few rulings to the contrary, the

majority of the reported rulings have held that no
additional amount is payable.
4 200 AIR SC sp perf allowed in RSA – repeatedly

2 2290 held increase in price and mere
delay not grounds to refuse sp perf.
Addl consideration awarded by one
judge objected by the other judge
5 200 AIR SC 909 Kerala kaumudi case – para 151 –
4 increase in price not to be
considered in sp perf
6 200 AIR SC Increase in price not to prevent sp
4 4472 perf
7 200 AIR SC Incerase in price not to prevent sp
4 3940 perf
The following rulings of the Supreme Court advert to

the need for specific pleadings by the vendor of
hardship and esclation to warrant payment.
8 199 AIRSC Comparative hardship to be

9 2309 considered – hardship must be
something which defendant did not
foresee
9 200 [4]SUPREME No pleading of hardship – cannot be
1 510 considered u/S 20
10 201 AIR SC Increase in price no ground to deny
2 2035 sp perf – No plea of hardship -
cannot be considered
201 AIR SC
9 4652
Here there is no pleading on either of the two counts,

esclaation or hardship to defendants. There is also no
proof of any increase, or of any hardship. Hence the
prayer for increase in price in this Court is arbitrary
and is impermissible.
The circumstances of this case, that there is apparent

lacuna in the title of the sellers, the proven defect in
the 1982 partition deed wherein the sellers have
interpolated a larger area and their greed in
demanding money for the illegal area and the huge
loss suffered by the purchaser due to the avoidable
escalation in building costs, justify the exercise of the
discretion of the court in favour of the plaintiffs, and
against the defendants.
Dated 24th April 2020

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IN THE COURT OF THE SUBORDINATE JUDGE OF

Plaint presented under Section 26 read with

1. The first plaintiff, Hindu Makkathayee, aged 45,

6. The sale agreement by defendants 1 to 8 is in

7. The first plaintiff has come to know that the

8. There are no visible boundaries for the property of

9. In view of the necessity for the identification of the

11. The first plaintiff demanded specific performance

12. The cause of action for this suit arose on 01-05-

13. Valuation for jurisdiction and court fee is as

Court fee payable under section of the

The plaintiffs therefore pray for a decree for specific

We, the plaintiffs in the suit do hereby declare that the

Dated July 2008

1. 01-05-2007 Original sale agreement between

T Vrij Mohan and another Plaintiffs

T K Vasudevan Nair and others Defendants

Affidavit of the First Plaintiff

I, T Vrij Mohan, aged ….., son of the late T Balan,

1. I am the first plaintiff in the suit and I am filing this

2. From the refusal of defendants 1 to 8 to comply

3. It is therefore essential in the interests of justice

The facts stated above are true to the best of my

B G Bhaskar. Advocate . Calicut . 2

1. T Vrij Mohan Petitioners

Application submitted by B G Bhaskar, Advocate for

For the reasons stated in the accompanying affidavit

Dated July 2008

Advocate for Petitioners

T Vrij Mohan and another Plaintiffs

T K Vasudevan Nair and others Defendants

Affidavit of the First Plaintiff

I, T Vrij Mohan, aged ….., son of the late T Balan,

1. I am the first plaintiff in the suit and I am filing this

The facts stated above are true to the best of my

B G Bhaskar. Advocate . Calicut . 2

1. T Vrij Mohan Petitioners

Application submitted by B G Bhaskar, Advocate for

For the reasons stated in the accompanying affidavit

T Vrij Mohan and another Plaintiffs

T K Vasudevan Nair and others Defendants

Affidavit of the First Plaintiff

I, T Vrij Mohan, aged ….., son of the late T Balan,

1. I am the first plaintiff in the suit and I am filing this

The facts stated above are true to the best of my

B G Bhaskar. Advocate . Calicut . 2

T. VRIJ MOHAN AND

T. K. VASUDEVAN NAIR AND

T Vrij Mohan and another Plaintiffs

T K Vasudevan Nair and others Defendants

Affidavit of the First Plaintiff

I, T Vrij Mohan, aged ….., son of the late T Balan,

1. I am the first plaintiff in the suit and I am filing this

B G Bhaskar. Advocate . Calicut . 2

The DGM Legal,

2. I am also enclosing an affidavit [in two pages] and

Dated 29th October

T Vrij Mohan and another Plaintiffs

T K Vasudevan Nair and others Defendants

Affidavit of the First Plaintiff