P.N. Ravindran,J.
The unsuccessful plaintiff in O.S No.104 of 1993 on the file of the Court of the First Additional Subordinate Judge of Trivandrum is the appellant in this appeal. Respondents 1 to 3 are the defendants therein. The first respondent/first defendant passed away after this appeal was filed. Thereupon, his legal representatives were impleaded as additional respondents 4 to 6 by order passed on 01.07.2013 on I.A No. 320 of 2013. The brief facts of the case as follows:
2. The appellant instituted the suit on 18.01.1993 contending that first defendant who was admittedly residing in the United States of America had agreed to sell the plaint schedule property (28 cents of land with a residential building therein situated in Survey No.1585/54 of Chettivilakom village, Thiruvananthapuram Taluk, Thiruvananthapuram District) to him for a sale consideration of Rs.3,02,000/- as per Ext.A1 letter dated 21.04.1992. He had averred that the understanding between the parties was that the first defendant should execute the sale deed in favour of the plaintiff before 31.11.1992 on receipt of the entire sale consideration from the plaintiff, that the first defendant had thereafter sent Ext.A2 letter dated 18.12.1991 and Ext.A3 letter dated 2.7.1992 in the matter, that the plaintiff had thereafter called upon the first defendant through letters and other means of communication to execute the necessary sale deed in his favour, that the plaintiff was always ready and willing to take the sale deed and to discharge his part of the obligation, but the first defendant has not cared to execute the sale deed. It was alleged that the plaintiff therefore caused Ext.A4 notice dated 11.12.1992 to be issued but notwithstanding its receipt, the first defendant failed to execute the sale deed and therefore, he is constrained to seek specific performance of the agreement for sale entered into between the plaintiff and the first defendant.
3. Upon receipt of summons, the first defendant entered appearance and filed a written statement dated 16.11.1993 through his power of attorney. Later he filed another written statement dated 21.9.1996 along with I.A. No.7147 of 1996 to treat the first written statement as non-est and to receive the written statement dated 21.9.1996. The said application was not allowed but was directed to be posted along with the suit. The substance of the contention raised by the first defendant in his written statement dated 16.11.1993 is that there is no concluded contract between him and the plaintiff, that he had never accepted the offer made by the plaintiff and therefore the suit is not maintainable. The first defendant also contended that the court at Thiruvananthapuram lacks jurisdiction to entertain the suit. In the trial court, the plaintiff was examined as PW1, three letters stated to have been written by the first defendant were marked as Exts.A1 to A3 and the suit notice was marked as Ext.A4. The documents produced by the first defendant's counsel along with his memo dated 25.02.1994 which was filed in court on 25.02.1994 were marked as Exts.B1 to B3. The trial court on an analysis of the pleadings and the evidence on record held that it has jurisdiction to entertain the suit. On the merits, the trial court held that there is no concluded contract between the parties; that the first defendant had not agreed to sell the plaint schedule property to the plaintiff for a sale consideration of Rs.3,02,000/- and therefore, the plaintiff is not entitled to a decree as prayed for. The suit was accordingly dismissed.
4. We heard Sri.M. Ramasway Pillai, learned counsel appearing for the appellant. Sri. M.Ramasway Pillai, learned counsel appearing for the appellant/plaintiff contended referring to the contents of Exts. A1 to A3 and Exts.B1 to B3 letters (the former set of letters stated to be the letters sent by the first defendant to the plaintiff and the latter set of letters stated to be copies of letters sent by the plaintiff to the defendant) that the recitals therein establish beyond doubt that there was a concluded contract between the parties, viz., an agreement to sell the plaint schedule property to the the plaintiff - for a sale consideration of Rs.3,02,000/-. The learned counsel for the appellant contended that the correspondence between the parties discloses the intention of the first defendant to sell the plaint schedule property, his offer to sell the plaint schedule property to the plaintiff for a sale consideration of Rs.3,02,000/-and its acceptance by the plaintiff and therefore, the trial court erred in holding that there is no concluded contract between the parties.
5. We have considered the submissions made at the Bar by the learned counsel for the appellant. We have also gone through the pleadings and the materials on record, more particularly, contents of Exts.A1 to A3 and Exts.B1 to B3 letters. Exts.A1 and A3 letters are not originals. They are stated to be copies of letters sent by the first defendant to the plaintiff. The plaintiff has not produced the originals of the said letters. He has also not produced the covers in which they were received. There is also no explanation as to the reason why the originals of Exts.A1 and A3 are not produced. Even if this Court were to ignore the question whether Exts.A1 and A3 are admissible in evidence for the reason that they are photocopies and not originals of the letters, the said letters do not, in our opinion, disclose that a concluded contract regarding sale of the plaint schedule property had been entered into between the parties. Ext.A3 which is the last of the letters stated to have been sent by the first defendant to the plaintiff is dated 02.07.1992. The opening sentence of that letter reads as follows:
“ N ] 21& ] rO ] ] O ] O O. rO ] O V O O O O.”
The English translation thereof is as follows:
“I have waited till today for a reply to my letter dated 21st April. I am writing this letter since there is no reply till date.”
In the penultimate paragraph of Ext.A3 letter, it is stated as follows:
“ r] O U r] ] O V N ] O O.”
“I hope you will convey your decision.”
6. The contents of Ext.A3 letter which is relied on by the plaintiff discloses that no concluded contract had come into existence between the parties. Then the only other question is whether there is any material to show that after the date of receipt of Ext.A3 letter, a concluded contract between the parties had come into existence. Though the learned counsel appearing for the appellant/plaintiff relied on Exts.B1 to B3 letters to contend that a concluded contract had come into existence, on going through the said letters we find no merit in the said contention. Exts.B1 to B3 are copies of letters stated to have been sent by the plaintiff to the first defendant. Ext.B1 is a letter dated 31.10.1991, Ext.B2 is a letter dated 24.02.1992 and Ext.B3 is a letter dated 24.08.1992. Ext.B3 letter is dated 24.08.1992 and going by the chronology of events, it can be treated as a letter sent in reply to Ext.A1. Even that letter does not prove that a concluded contract had come into existence between the parties. The plaintiff has in Ext.B3 letter attempted to explain his delay in writing to the first defendant. In Ext.B3 letter stated to have been sent by the plaintiff, he has stated as follows:-
“ V ] OU U O ] ”
“the sale deed can be executed if you are agreeable to sell the property.”
The contents of Ext.B3 letter substantiate our conclusion that no concluded contract had come into existence between the parties even as on 24.08.1992. In other words, though there was correspondence between the parties, the discussions had not attained finality and a concluded contract had not come into existence. The parties were only deliberating over the issue. In such circumstances, as the very letters relied on by the plaintiff do not establish the existence of a concluded contract as on the date of suit, we are of the opinion that the court below was perfectly right in declining specific relief. As stated earlier, the above suit was instituted on 18.01.1993. 21 years have passed thereafter. The first defendant is no more. Relying on the correspondence between the parties, which does not disclose a concluded contract, it will be grossly unjust and inequitable to pass a decree for specific performance. Therefore, on equitable considerations also, we find no grounds to interfere with the decision of the trial court.
The appeal fails and it is, accordingly, dismissed. No costs.
Sd/-
P.N. RAVINDRAN, JUDGE Sd/-
P.B.SURESH KUMAR, JUDGE //true copy// P.A to Judge smv