IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 25 of 1996()
1. NOKKARAKUNHIRAMAN
... Petitioner
Vs
1. THEKKUNCHERI KUNNEL GEORGE
... Respondent
For Petitioner :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
For Respondent :SRI.KODOTH SREEDHARAN
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :10/06/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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A.S.No. 25 of 1996
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Dated this the 10th day of June, 2009
JUDGMENT
This appeal is filed by the defendant in O.S.No. 150
of 1992 on the file of the Sub Court, Hosdurg. The
respondent is the plaintiff in that suit. O.S. No. 150 of
1992 is a suit for return of advance amount.
2. The case of the plaintiff is briefly as follows. The
defendant agreed to sell his property to the plaintiff for a
total sale consideration of Rs. 3 lakhs and the defendant
received Rs.30,000/- from the plaintiff as advance and the
defendant executed an agreement for sale on 5.6.1992.
The balance of sale consideration has to be paid on or
before 5.9.1992. The defendant had hypothecated the
property to Hosdurg Co-operative bank for Rs.30,000/-
The defendant had to pay some amount to the previous
owner of the property, viz. A. Bhaskar Rao, from whom
the defendant had purchased the property and the
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defendant had executed an agreement to that effect. This fact
was suppressed by the defendant at the time of executing the
agreement for sale. When the plaintiff came to know about this
agreement, the plaintiff demanded back the advance of sale
consideration from the defendant. But the defendant did not
return the amount. Hence the suit.
3. The main contention of the defendant is briefly as
follows. The defendant admitted the agreement dt.5.6.1992. As
per the stipulations in the agreement, if the plaintiff failed to
execute the sale deed on or before 5.9.1992, the agreement will
be cancelled and the advance will not be refunded to the
plaintiff.
4. Believing the plaintiff that the document will be
executed as per the agreement and the balance amount will be
paid, the defendant entered into another agreement with one
Mathew, Pazhuthadathil to purchase 60 cents of areca garden
belonging to him for a consideration of Rs.2,000/- per cent and
an amount of Rs.25,000/- was paid as advance. The balance
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amount was agreed to be paid and the sale deed be got executed
on or before 11.9.1992. On 13.7.1992, the defendant had sent a
registered letter to the plaintiff, calling upon him to execute the
sale deed before that stipulated date and the said letter was
served to the plaintiff on 17.7.1992. In that letter it is clearly
stated about the agreement with the aforesaid Mathew. Besides,
the defendant made many oral requests to the plaintiff to execute
the document. Since the plaintiff failed to get registered the sale
deed before the agreement date, the defendant also lost
Rs.25,000/- which was the advance amount given to the above
said Mathew. Since the defendant was in great financial
difficulties and the agreement date was over and also the plaintiff
failed to execute the document, the defendant had to sell the
property to one Puthenpurakkal Gopalakrishnan Nair as per
document No.3028/92 of S.R.O. Rajapuram on 28.11.1992
morning itself. The plaintiff has never made any request to the
defendant to return the advance amount. The plaintiff is not
entitled to get any relief. The suit may be dismissed with costs.
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5. In the Sub Court PW1 and DW1 were examined and
Exts.A1, B1 series and B2 were marked. The learned Sub Judge,
on considering the evidence, decreed the suit allowing the
plaintiff to realise a sum of Rs.31,500/- together with interest at
the rate of 10% p.a. from the date of the suit till the date of
realisation with cost from the defendant. Against that judgment
and decree the defendant filed this appeal.
6. Heard the learned counsel for the appellant and the
respondent.
7. The learned counsel for the appellant submitted that the
plaintiff has committed breach of Ext.A1 agreement for sale and
therefore the plaintiff is not entitled to get back the advance
amount. There is no dispute that Ext.A1 is the agreement for
sale dt.5.6.1992 executed by the defendant in favour of the
plaintiff agreeing to sell his property to the plaintiff for a total
sale consideration of Rs. 2 Lakhs and the defendant received
Rs.30,000/- as advance.
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8. As per the stipulations contained in ext.A1, the balance
of sale consideration of Rs.1,70,000/- is to be paid to the
defendant and the Sale Deed is to be executed on or before
5.9.1992. Ext.B1 is the copy of the letter written by the
defendant to the plaintiff on 13.7.1992 stating that the defendant
intends to purchase another property and therefore the plaintiff
should get the Sale Deed executed after paying the balance sale
consideration before the date stipulated in the agreement as early
as possible. Ext.B1(a) is the postal receipt and Ext.B1(b) is the
postal acknowledgment, which shows that the plaintiff received
the original of Ext.B1 letter on 17.7.1992. Ext.B2 is copy of the
Sale Deed dt.27.11.1992 executed by the defendant in favour of
Gapalakrishnan Nair.
9. The defendant contends that as the plaintiff did not
comply with his request to pay the balance sale consideration
and get the Sale Deed executed, he could not purchase another
property from one Mathew, with whom he had entered into an
agreement on 21.6.1992 and as such the defendant lost
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Rs.25,000/- which he had paid to Mathew as advance. As per
Ext.A1 agreement for sale, the plaintiff had time till 5.9.1992
and there is no clause in Ext.A1 agreement to pay the balance of
sale consideration before that date.
10. The alleged agreement for sale with Mathew
dt.21.6.1992 is not produced by the defendant to prove that he
has lost Rs.25,000/- as contended by him. DW1 admitted that he
did not hand over the original document of title to the plaintiff
for preparing the Sale Deed in favour of the plaintiff. In Ext.A1
agreement for sale it is mentioned that the original title deeds
are pledged with the bank. Since the defendant had not handed
over the original title deeds for preparing the Sale Deed in
favour of the plaintiff as stipulated in Ext.A1, it cannot be said
that the plaintiff has committed breach of Ext.A1 agreement for
sale. Since the defendant had executed Sale Deed No. 3028/92
in favour of one Gopalakrishnan Nair in respect of the property
covered by Ext.A1 agreement for sale, it is not possible for the
defendant to execute the Sale Deed in favour of the plaintiff as
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per the stipulations contained in Ext.A1. Therefore, the
defendant is bound to return the advance amount received by
him from the plaintiff. Hence I find that the learned Sub Judge is
perfectly justified in decreeing the suit.
11. The appeal is therefore dismissed. The judgment and
decree in O.S.No. 150 of 1992 on the file of the Sub Court,
Hosdurg is confirmed. The parties are directed to suffer their
respective cost in the appeal.
(M.L. JOSEPH FRANCIS)
Judge
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