RAMAKRISHNA PILLAI & ANR. versus MUHAMMED KUNJU & ORS.

Citation: [2008] 3 S.C.R. 91 · Decided: 20-02-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

(2008] 3 S.C.R. 91 
_; 
w 
RAMAKRISHNA PILLAI & ANR. 
A 
v. 
MUHAMMED KUNJU & ORS. 
(Civil Appeal Nos.1396-1397 of 2002) 
FEBRUARY 20, 2008 
B 
• 
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.} 
-/-
Suit- Suit for specific performance of agreement of sale-
Dismissal of suit by trial court on the ground of limitation -
High Court denying the claim on the ground of absence of c 
plea regarding readiness and willingness of the plaintiff- On 
appeal, held: The plea was specifically taken by the plaintiff 
and the same having not been denied by the defendants, 
finding of High Court is erroneous. 
~· 
Appellants filed two separate suits against the D 
respondents for specific performance of agreement to sell 
the suit properties. Clear averments were made in the 
plaint that they were always ready and willing to perform 
their part of agreement. Respondents-defendants 
contested the suits on the grounds that the agreements E 
were not valid and binding on them and that the suit was 
barred by limitation. They did not deny the plea regarding 
readiness and willingness. Trial Court dismissed the suit 
' 
on the ground of limitation. On merit, it held that the 
.;: 
agreements were valid and binding. High Court held that F 
the suit was not barred by limitation and the agreements 
were valid and binding, but dismissed the appeal on the 
ground that no plea was raised regarding readiness and 
willingness and exercise of discretion. Hence the present 
appeals. 
G 
Allowing the appeals, the Court 
HELD: High Court's judgment is vulnerable. Firstly, 
there was no dispute ever raised by the defendants about 
91 
H 
1' 
92 
SUPREME COURT REPORTS 
[2008] 3 S.C.R. 
,,. 
" 
A the readiness and willingness of the plaintiffs to fulfill their 
obligations. The High Court was clearly in error in holding 
that no plea regarding readiness and willingness was 
raised. The trial court in its judgment has referred to 
various portions of the averments in the plaint where the 
B plaintiffs had categorically stated that they were and are 
• 
always willing to fulfill their part of the obligations. The 
-<--
High Court also failed to notice that there was no plea 
either in the written statement or in the cross objections 
filed in the appeal before the High Court that the plaintiffs 
c were not ready and willing to fulfill their part of the 
obligation. [Para 4] [95-G; 96-A, B] 
K.S. Vidyanadam and others v. Vairavan (1997(3) SCC 
1), K. Narendra v. Riviera Apartments (P) Ltd. (1999(5) SCC 
77), V Pechimuthu v. Gowrammal (2001 (7) SCC 617), 
D Manjunath Anandappa v. Tammanasa and Others (2003(10) 
SCC 390) and Pukhraj D. Jain and Ors. v. G Gopala Krishna 
(2004 (7) sec 251) referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal 
E 
Nos.1396-1397 of 2002. 
From the final Judgment and Order dated 09.07.200·1 of 
the High Court of Kerala at Ernakulam in A.S. Nos. 24 & 42 of 
1993. 
T.L.V. Iyer, Jay Kishor Singh, Vivek Gupta and 
j. 
F Subramonium Prasad for the Appellants. 
C.S. Rajan, A. Raghunath and Romy Chacko for the 
Respondents. 
The Judgment of the Court was delivered by 
G 
Dr. ARIJIT PASAYAT, J. 1. Challenge in these appeals is 
to thei judgment of a Division Bench of the Kerala High Court. 
2. Background facts need to be noted in some detail. 
H 
Two suits were filed for specific performance of agreement 
RAMAKRISHNA PILLAI & ANR. v. MUHAMMED KUNJU 
93 
J 
& ORS. [PASAYAT, J.] 
• 
to sell the suit properties. Appellant No.1 is the plaintiff in OS 
A 
No. 11 of 1997 which was filed in the Sub Court Mavelikara on 
23.2.1987. Appellant No. 2 is the plaintiff in OS No. 17 of 1987 
which was filed on 28.2.1987. The three defendants were 
common to both the suits. Defendant no.1 is defendant No.2's 
brother's son and defendant No. 3 is the wife of defendant No. B 
• 
2. Defendant No. 3 obtained the property mentioned in the two 
-.-' 
suits under an exchange of properties between her and her 
husband i.e. defendant no.2. She mortgaged the properties to 
the Kerala Financial Corporation Limited. Sometime in 1970 
defendant No.3 executed a Power of Attorney in favour of her 
husband-defendant No.2 authorising him to deal with the c 
property. On 17 .5.1974 defendant No.2 sold portions of the 
property to defendant No.1 acting on the power conferred by 
the power of attorney vide Exhs. A 8 and A 18. Subsequently on 
12.8.197 4, defendant No.3 cancelled the power of attorney. In D 
't' 
1979 the defendant No.1 executed a power of attorney 
author
Excerpt shown. Read the full judgment & AI analysis in Lexace.