IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 127 of 2001(B)
1. AYYAPPAN NAIR
... Petitioner
Vs
1. JAMES
... Respondent
For Petitioner :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :23/07/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 127 OF 2001
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Dated this the 23rd day of July, 2010.
J U D G M E N T
This is an appeal preferred against the
judgment and decree passed by the Subordinate
Judge, Palakkad in O.S.317/93. The suit is one
for return of advance amount and damages. It is
the case of the plaintiff that the plaintiff and
defendants have entered into an agreement for
sale on 22.3.93 for purchase of 72= cents of dry
land and one acre of paddy land for a total
consideration of Rs.2,75,000/- and towards the
sale consideration Rs.40,000/- was paid as
advance and as per the stipulation in the
agreement the document has to be registered on
or before 3.5.93. There is also a stipulation in
the agreement that if the plaintiff commits
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default, is liable to pay to the defendant the
amount paid as advance plus another Rs.40,000/-.
According to the plaintiff, defendants have
committed the breach, hence the suit.
2. On the other hand defendants would
contend it was the plaintiff who had committed
breach of the contract and therefore he is not
entitled to any amount and as per the
stipulations in the document the defendant is
entitled to appropriate the amount given as
advance. The trial court on an appreciation of
the materials granted a decree for return of the
advance amount and it is against that decision
the defendants have come up in appeal.
3. Heard the learned senior counsel for the
appellants as well as the young counsel for the
respondent. The crux of the matter depends upon
the question who has committed the breach of the
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contract and whether the party had sustained
damages so as to claim damages over and above
the advance amount paid or whether by the
conduct of the plaintiff the defendants had
sustained damages so as to disentitle the
plaintiff to ask for return of the amount.
4. The parties certainly had not come to
the court with the entire facts is quite
evident. The plaintiff submits that on 2.5.93
on coming to know that there was a liability in
the property approaches the defendants and ask
for the documents. According to the plaintiff
the defendants promise to come on 3.5.93 to the
Registrar’s office with the document and
accordingly the plaintiff had gone there and to
his dismay defendants did not come. According
to him he had issued a notice regarding this
which is marked as Ext.A5. Though the notice is
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dated 2.5.93 it is sent only on 7.5.93 and the
defendants had received it only on 9.5.93
whereas Ext.A6 is a notice issued by the
defendants to the plaintiff dated 4.5.93. It is
therefore contended that Ext.A5 notice is only
sent after the receipt of Ext.A6 notice
suppressing the fact and so it is an indicator
to show that it was the plaintiff who had
committed the breach. Now as per the terms of
the agreement the plaintiff is liable to pay
balance amount and get the document registered
on or before 3.5.93. As per the stipulations in
the agreement defendants are bound to measure
the property to find out the exact extent and if
it is on the increase more amount to be paid and
if it is on a lesser side reduce the amount. It
is also very clearly stated that the defendants
have to discharge the liability on the property
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on or before 3.5.93. So it is in this
background we have to analyze who would have
committed the breach. The defendant had
admitted that there was a liability with the co-
operative bank by mortgaging this property.
Admittedly the defendant had not taken any steps
to liquidate that loan before the crucial date
3.5.93. As observed by the Court below if there
had been measurement of property and it has been
recorded it would have found a place in Ext.A6
notice. It is also absent there. Therefore the
two ingredients necessary to be satisfied by the
defendants are not complied. It is in this
background when the evidence of plaintiff is
analyzed that he approached the defendants for
the purpose of getting document and that the
defendants fail to come to the Registrar’s
office receives significance. It is also to be
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borne in mind after all the agreement is one or
sale of immovable property. The time fixed for
sale of immovable property need not always be
the essence of the contract. Therefore the
inaction of this side or that side has resulted
in the contract being broken. A person who
wanted to purchase the property will purchase
the property only on satisfaction regarding the
correct extent of the property as well as the
fact that there is no encumbrance on the
property. So the positive acts were to be
done by the defendants. Instead of doing the
same what the defendants had done is that they
have executed an agreement Ext.B1 with a third
party for the purchase of another property and
had paid Rs.15,000/- as advance and that
transaction also did not materialize. When it is
found that it is at the fault of the defendants
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that the contract has not gone into it has to be
stated it is for them to return the advance
amount.
5. So far as the damages is concerned since
there is no evidence to show that on account of
the non-happening of the transaction the
plaintiff has suffered any damages the Court
below did not rightly grant him damages as well.
So what the Court has done is to direct the
defendants to pay back the amount to the
plaintiff for the reason it was the defendants
who had committed the breach of the contract.
In this case there is no unjust enrichment for
the plaintiff for the reason the amount which he
had advanced only is ordered to be paid back to
him. Therefore from these materials I do not see
any ground to interfere with the decision
rendered by the trial court. Therefore the
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appeal lacks merits and the same is dismissed
but under the circumstances without any order as
to costs.
M.N. KRISHNAN, JUDGE.
ul/-
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M.N. KRISHNAN, J.
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A.S. No. 127 OF 2001
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J U D G M E N T
23rd July, 2010.