IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 297 of 2010()
1. NARAYANAN EDAPARAMBILO KUPPENGOTTIL,
... Petitioner
Vs
1. MOIDEENKUTTY, S/O. ELAMPARAMBIL MOIDU,
... Respondent
2. ASYA, W/O. MOIDEENKUTTY,
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/06/2010
O R D E R
P.BHAVADASAN, J.
---------------------------------
R.S.A.No.297 of 2010
---------------------------------
Dated this the 22nd day of June, 2010
JUDGMENT
Aggrieved by the concurrent findings against defendant in
O.S.4/1999 before the Sub Court, Ottappalam he has come up in
appeal. The parties and facts are hereinafter referred to as they are
available before the trial court.
2.The defendant had entered into an agreement for sale dated
6.1.1998 to purchase the plaint schedule property. The defendant in
turn agreed to sell the plaint schedule property to the first plaintiff @
Rs.26,250/-per cent, for a total sum of Rs.7,87,500/- and since the
first plaintiff was abroad, an agreement was entered into between the
second plaintiff and the defendant. The second plaintiff paid a sum of
Rs.1,00,000/- as advance sale consideration. The balance amount of
sale consideration was to be paid within six months. The plaintiffs
were always ready and willing to perform their part of the contract.
The balance sale consideration was ready and and the matter was
informed to the defendant on several occasion. In the meanwhile the
defendant cut and removed valuable trees and other improvements
and thus reduced the value of the property thereby acting against the
terms of the agreement and interest of the plaintiffs.
3. The defendant resisted this suit. He admitted execution of
R.S.A.No.297 of 2010 2
the agreement. It was stated that he had agreed to purchase the
property for a total consideration of Rs.6,50,000/- from his brother
and an amount of Rs.50,000/- was paid in advance. The intention of
the defendant was to direct his vendor to assign the property to the
plaintiff. Since the plaintiff has not performed his part of the
agreement, the defendant was unable to perform the agreement with
his brother. As soon as the notice issued by his brother Vijayan calling
upon him to take steps for execution of sale deed demanding balance
sale consideration he informed the first plaintiff. There was no
response. So it was the plaintiffs who had committed breach of the
contract. The defendant suffered loss and he is entitled to appropriate
the amount paid by plaintiff. On the basis of these contentions he
prayed for a dismissal of the suit.
4. The trial court raised necessary issues for consideration. The
evidence consists of the testimony of PW1 and documents marked as
Exts. A1 and A2 series from the side of the plaintiffs. The defendant
had DW1 examined and Exts.B1 to B3 were marked. On a
consideration of the evidence, the trial court came to the conclusion
that the defendant had no title to the plaint schedule property and that
acts of waste has been committed in the property. Finding that
plaintiffs were justified in rescinding the contract, the suit was decreed
R.S.A.No.297 of 2010 3
directing return of the amount paid by the plaintiffs.
5. Defendant carried the matter in appeal as A.S.11/2005 before
the District Court, Palakkad. The District Court on an independent
appreciation of evidence found that the trial court was fully justified in
decreeing the suit in favour of the plaintiff and directing return of the
amount. The lower appellate court also found that failure to grant
interest on the amount decreed was not justifiable and granted
pendente lite and future interest at 6%. It is those concurrent findings
that are assailed before this court.
6. The learned counsel very vehementally contended that courts
below was not justified in coming to the conclusion that Rs.1,00,000/-
paid by plaintiff was not as earnest money but as advance amount. It
was argued that had the plaintiff paid balance consideration and got
the sale deed executed, he would have gained. Since it was the
plaintiff who was the defaulter, the defendant is not liable to return the
sum of Rs.1,00,000/- paid by the plaintiff. It was also claimed that
due to the default of the plaintiff he could not honour the agreement
with his brother and he not only lost the profits of the transaction but
also had to forfeit the sum of Rs.50,000/- paid to his brother as
advance.
7. The contentions are without any merits. Both the courts come
R.S.A.No.297 of 2010 4
to the conclusion that the default was by the defendant. The court
below found that valuable trees in the property had been cut and
removed and building pulled down. Those acts were against the terms
of contract. The lower courts came to the conclusion that plaintiff is
justified in rescinding the contract. They also found that there is no
damages suffered by the defendant. The lower courts also came to the
conclusion that there was no default on the part of plaintiff. The
defendant admitted there were valuable trees in the property which
was the subject matter of the agreement. He conceded that a lot of
trees have been cut and removed and stumps can be seen in the
property. It was those wanton acts which had reduced the value of
the property and those acts were in violation of the agreement.
Whatever that be, there is concurrent findings on fact against the
defendant . No grounds are made out to interfere in the Second
Appeal. It is not shown either that the findings are perverse or not
warranted by evidence on record. Faced with the above situation, the
appellants made a fervent plea to grant him sometime to pay off the
decree debt.
8. Sri.Sethumadhavan appearing on behalf of the respondent
submits that the property has already been brought to sale and sale
stands posted to 22.7.2010 for confirmation. The learned counsel for
R.S.A.No.297 of 2010 5
the appellant pointed out that if he is payable to the amount the sale
may be directed to be set aside.
9. The learned counsel for the appellant prayed that he may be
granted sometime to pay off the decree debt and till then the
confiscation may be deferred.
10. Considering the various aspects the appellant is given 3
months from today to pay off the decree debt and the confirmation of
sale will stand adjourned by three months. Subject to the above
condition the appeal stands dismissed.
This R.S.A is disposed of with the above observation.
P.BHAVADASAN, JUDGE
cms