IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 207 of 1998()
1. MURIKANCHERI DEVAN
... Petitioner
Vs
1. C.O.PARUKUTTYIAMMA
... Respondent
For Petitioner :SRI.P.T.ANTONY
For Respondent :SRI.M.V.AMARESAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :24/03/2010
O R D E R
HARUN-UL-RASHID, J.
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A.S.No.207 of 1998 - B
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Dated this the 24th day of March, 2010
J U D G M E N T
The plaintiff in O.S.No.78 of 1994 on the file of the Sub
Court, Payyannur, is the appellant. Suit is filed for return of
money paid as advance amount. The court below dismissed the
suit with costs. Aggrieved by the same the plaintiff has preferred
the appeal. Parties are hereinafter referred to as the plaintiff and
defendant as arrayed in the suit.
2. The plaintiff and defendant are close relatives. The
defendant had executed a sale agreement on 23.3.1991 in favour
of the plaintiff whereby the defendant agreed to sell the property
comprised in R.S.No.15/2 of Kolacheri amsom Perumcheri desom
owned and possessed by her. Ext.A2 is the agreement. The
consideration fixed is Rs.875/- per cent. The total extent agreed
to be sold is 72 cents. On the date of Ext.A2 agreement the
plaintiff paid advance amount of Rs.12,000/- to the defendant.
The parties agreed that the sale deed will be registered within six
months from the date of agreement on payment of balance sale
consideration. It is the case of the plaintiff that he approached
the defendant on several occasions to get the sale deed
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registered, but, the defendant was avoiding the performance of
the contract by some reason or other. Therefore the plaintiff
intimated the defendant that he is not insisting for the specific
performance of the agreement for sale if the advance amount
with interest thereon is repaid to him. Subsequently, the
defendant alienated the property in favour of a third person and
it is alleged that the said act of the defendant caused damages,
hardship and financial loss to the plaintiff. Therefore, the plaintiff
filed the present suit seeking to realise the advance amount of
Rs.12,000/- with interest and Rs.10,000/- as damages for the
hardship and loss caused by the defendant to the plaintiff. The
suit was filed for realisation of Rs.26,160/-.
3. In the written statement the defendant denied the
averments in the plaint. The execution of Ext.A2 agreement,
receipt of Rs.12,000/- as advance and contents of Ext.A2 are
admitted. The defendant contended that the plaintiff has not
taken any steps to get the sale deed executed; he failed to
perform his part of contract even after the expiry of the period
specified in the agreement; the defendant was always ready and
willing to perform her part of contract and ready to execute the
sale deed in favour of the plaintiff. It is also contended that the
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plaintiff informed the defendant that he is prepared to purchase
the property only at the rate of Rs.500/- per cent and that since
the plaintiff failed to perform his part of contract, the defendant
is compelled to assign the property to a third person for a lesser
consideration and therefore she sustained Rs.25,000/- as loss.
4. The plaintiff is working in a Gulf country. At the time
of execution of the agreement and during the subsequent periods
as well, the plaintiff was in abroad. His wife is the power of
attorney holder. She was examined as PW1. One of the
witnesses to Ext.A2 agreement was examined as PW2.
Defendant was examined as DW1. The plaintiff produced Exts.A1
to A6 and on the side of the defendant Exts.B1 & B2 are marked.
5. The trial court after appreciating the oral and
documentary evidence held that the plaintiff has committed
breach of contract, and therefore he is not entitled to get back
the advance amount and damages claimed in the suit.
6. Ext.A2 is the agreement dated 23.3.1991 admittedly,
executed by the defendant in favour of the plaintiff. The
defendant agreed to sell 72 cents of land at the rate of Rs.875/-
per cent. On the date of Ext.A2 agreement, the defendant
received Rs.12,000/- from the plaintiff as advance amount. It is
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stipulated in Ext.A2 agreement that the balance purchase price
will be paid at the time of registration of the sale deed within six
months. The plaintiff’s wife was examined on behalf of the
plaintiff. She testified before the court that her husband was
ever ready and willing to perform his part of contract and for that
he send money to her for making payments within the time fixed
by the parties. But, the execution of the sale deed was
postponed originally by the defendant stating that a partition
suit, namely, O.S.No.41 of 1991, between his family members is
pending before the 1st Additional Sub Court, Thalassery and that,
sale deed can be executed only after disposal of the said suit.
She also testified that at the time when she went along with PW2
she carried the balance sale consideration for making payment to
the defendant. She testified that at that time her husband was in
Gulf country and he had sent money for making payment. She
testified that the defendant was not willing to execute the sale
deed during that period. She further testified that she made
enquiries regarding the pendency of the suit in the Thalassery
Sub Court and she came to know that civil suit O.S.No.41 of
1991 for partition was pending at that time. After the disposal of
the suit also she approached the defendant. At that time the
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defendant replied that she is not prepared to execute the sale
deed unless the plaintiff pay Rs.1,500/- per cent. Ext.A6 is the
certified copy of the final decree in O.S.No.41 of 1991. PW1
deposed that on enquiry, it was found that the defendant had
sold the property to a third person on 30.7.1993. Admittedly,
Ext.B1 is the copy of the letter sent by the plaintiff to the
defendant on 19.11.1992. In Ext.B1 letter the plaintiff informed
the defendant that he has no objection in selling the property to
any third person provided the defendant shall pay the advance
amount of Rs.12,000/- with interest plus Rs.10,000/- towards
loss caused to him due to non-performance on her part of the
contract. In Ext.B1 letter it is stated that during the period of
contract he had mobilized the balance sale consideration by
availing Rs.14,000/- dirhams as loan from a bank in Gulf and that
he was compelled to pay 1400 dirham towards interest to the
bank. It is also stated in Ext.B1 letter that the defendant and her
husband had cheated him by not executing the sale deed in his
favour and further stated that he do not propose to lodge any
compliant against the defendant. The wordings in Ext.B1 letter
shows that the plaintiff was convinced that the defendant is not
ready and willing to execute the sale deed at any point of time
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either within the agreement period or thereafter and that he was
fully convinced about his idea to sell the property to a third
person. Therefore, he informed the defendant that she may
alienate the property to any third person for which he has no
objection, provided that he shall return the advance amount and
shall also compensate the loss amount caused to him. The
defendant also did not dispute the contents of the letter. But the
counsel contended that the contents of the letter shows that the
plaintiff is not ready and willing to purchase the property and in
fact he demanded the advance amount. I cannot agree with the
submissions made by the learned counsel for the defendant. In
fact the testimony of PW1 read with Ext.B1 letter show that the
defendant was not willing at any point of time to execute the sale
deed.
7. PW2 is one of the witnesses to Ext.A2 agreement. He
is a relative of both parties. He deposed before the court that he
went to the defendant’s house twice during the agreement period
and demanded the defendant to execute the sale deed. When
the defendant was examined as DW1, she also admitted that
PW2 had occasion to visit her house twice as stated by PW2. The
evidence of PWs 1 & 2 read with the attendant circumstances
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proved that the plaintiff was ready and willing to purchase the
property during the period of contract and offered to wait till the
disposal of the partition suit as demanded by the defendant.
PW1 also testified before the court that after disposal of the civil
suit she again approached the defendant for execution of the sale
deed. But, at that point of time also, the defendant was not
prepared to execute the sale deed.
8. In Ext.B1 letter the plaintiff informed the defendant
that due to the conduct of the defendant he suffered heavy loss,
but, he is limiting his demand to the paid interest for the loan
amount he had availed from the bank.
9. I have examined the contentions raised by the parties
in the light of the evidence discussed above. According to the
defendant she sold the property to a third person at the rate of
Rs.500/- per cent. Rs.500/- is the amount shown in Ext.B2 sale
deed. The learned counsel for the plaintiff submitted that it is the
usual practice in the State that the parties never disclose the
actual amount received in the document for the purpose of
making reduced payment of stamp duty. In various cases the
Apex Court has even taken note of the practice followed by the
people. I am unable to accept the contention that the defendant
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had suffered loss. Moreover in the written statement she had
stated that she suffered Rs.25,000/- because of the failure of the
plaintiff to execute the sale deed within time. If she suffered loss
to that extent, there is no reason why she had not preferred a
counter claim in the suit.
10. The evidence tendered by the plaintiff’s witnesses,
documentary evidence adduced by the plaintiff, preponderance of
probabilities and attendant circumstances shows that the
defendant had acted in bad faith and refused to execute the sale
deed though the plaintiff had demanded execution of sale deed
on more than one occasion. Moreover the dispute is between two
near relatives and the plaintiff was in a Gulf country throughout
the period. The facts and circumstances show that he was ever
ready and willing to purchase the property after paying the
balance sale consideration. Learned counsel for the
respondent/defendant cited the decision reported in Janki
Vashdeo v. Indus Ind Bank (2005 (2) KLT 265 SC) and
submitted that PW1 who is the power of attorney holder of the
plaintiff is not competent to testify the contentions of the plaintiff
in court and therefore her evidence cannot be relied upon. The
learned counsel also relied on the decision reported in 1999 SAR
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(civil) 431 and contended that since the plaintiff did not enter the
witness box or presented himself for examination, the court shall
draw an adverse presumption against him invoking Section 114
of the Evidence Act. I do not think that the decisions cited by the
counsel for the respondent apply to the facts of the case. In this
case, the plaintiff was in Gulf country even at the time of
execution of Ext.A2 agreement and subsequent periods.
Transaction was made through his wife and PW2 who is a close
relative. Since the plaintiff was out of the country his wife is the
competent witness to dispose for and on behalf of him.
Moreover through out the proceedings it is the wife who was
engaged in the dealings with the defendant. She also acted as
power of attorney holder. In such circumstances, the contentions
raised by the learned counsel is without substance. The reasons
stated by the trial court for non-suiting the plaintiff cannot stand
for the reasons I have stated in the preceding paragraphs. The
learned counsel for the respondent submitted that there is no
evidence in support of the claim for damages except the plaintiff’s
interested testimony. Relying on the decision reported in
F.A.C.T Engineering Works v. Kerala Industries (2001 (3)
KLT 250) the counsel submitted that no oral evidence has been
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adduced to show that the plaintiff suffered damages and there is
no evidence to show the actual loss suffered by the plaintiff. The
facts and circumstances I have discussed above will lead to the
irresistible conclusion that the plaintiff suffered loss. The
contents of Ext.B1 letter also support the case of the plaintiff. in
such circumstances the plaintiff is entitled to a reasonable
amount as damages. The amount of loss suffered at a moderate
estimate is fixed as Rs.5,000/-. In such circumstances the claim
of the plaintiff for the return of advance amount plus reasonable
amount towards loss is sustainable in all respects.
In the result, the judgment and decree passed by the court
below are set aside. The plaintiff is allowed to realise
Rs.21,160/- with interest at the rate of 9% per annum from the
date of suit till the date of decree and future interest at the rate
of 6% from the date of decree till realisation. Appeal is allowed
with costs throughout.
HARUN-UL-RASHID,
JUDGE.
bkn/-