IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 115 of 1999(C)
1. CHANDROTH NISHITHA
... Petitioner
Vs
1. O.C.ABOOTTY
... Respondent
For Petitioner :SRI.P.M.PAREETH
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :20/10/2009
O R D E R
HARUN-UL-RASHID, J.
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A.S. No. 775 of 1998
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A.S. No. 115 of 1999
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Dated this the 20th day of October, 2009
JUDGMENT
The above appeals arise out of decrees and judgments passed by
the Sub court Thalassery in O.S. Nos. 332/1995 and 378/1995
respectively. The plaintiff and 2nd defendant in both suits are the same
persons . The 1st defendant in O.S No. 332/1995 is one Chirinakandy
Thottoli Ottapilan Devi Amma and in O.S. No. 378/1995 is the daughter of
the 1st defendant in O.S No. 332/1995. The 1st defendant in both suits
agreed to sell the property scheduled to the respective plaints to the same
plaintiff. The suits were filed for realisation of advance amounts paid by the
plaintiff to the 1st defendants in both suits. The suits were decreed.
Hence these appeals by the 1st defendant in both suits.
2. The subject matter of O.S. No. 332/1995 is 22 Cents. On
12.8.1994 the plaintiff and defendants executed Ext.A1 agreement
whereby the 1st defendant agreed to sell the plaint schedule property for a
price fixed by the parties i.e at the rate of 12,000/- per Cent. The 1st
defendant received Rs.15,000/- as advance amount. The date fixed for
execution of the registered sale deed is on or before 11.2.1995, after
receiving the balance consideration. Subsequently on 25.9.1994 the 1st
defendant approached the plaintiff and received a further amount of Rs.
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A.S. No. 115 of 1999 -2-
20,000/- It is alleged in the plaint that subsequently the plaintiff and 2nd
defendant came to know that a portion of the property has been acquired
for the construction of a bye-pass road for a national highway. According
to the plaintiff the proposal of the said road and the acquisition for the
same was fully known to the 1st defendant and that Ext.A1 sale deed was
executed by the 1st defendant suppressing the real facts. It is also averred
in the plaint that when the plaintiff and the 2nd defendant came to know of
the acquisition of the portion of the plaint schedule property and found that
survey stones were fixed by the national highway authorities over the
plaint schedule property, the plaintiff approached the 1st defendant for the
return of Rs, 35,000/- with interest which was received by the 1st
defendant. Since the 1st defendant evaded the payment of the above said
amount the suit was filed for realisation of the same.
3. The plaint schedule property in O.S. No. 378/1995 is the
adjoining property which stands in the name of the 1st defendant who is
the daughter of the 1st defendant in O.S. No. 332/1995. The extent of
property therein is also 22 Cents In this suit also the price rate per Cent
and the date of the agreement for sale are same as mentioned in O.S. No.
332/1995. The sale deed is also marked as Ext.A1. The 1st defendant
received an advance amount Rs.15,000/- .The date fixed for execution of
the sale deed is on or before 11.2.1995 after receiving the balance
consideration. Subsequently on 10.9.1994 the 1st defendant approached
the plaintiff and received a further amount of Rs. 10,000/- Thus altogether
an amount of Rs. 25,000/- was received from the plaintiff by the 1st
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A.S. No. 115 of 1999 -3-
defendant. The plaintiff sued for relisation of the amount of Rs.25,000/-
with interest on the very same set of facts as mentioned in O.S. 332/1995.
The decreed amount in in O.S. No. 332/1995 is Rs.40,025.18 and the
decreed amount in O.S No. 378/1995 is Rs. 28,772.58.
4. The parties hereinafter are referred to plaintiff and defendants
as arrayed in O.S No.. 332/1995 The plaintiff in both suits are the same
person . Different agreements were executed on the same date . The facts
leading to the filing of the suits are similar. The issues raised in both suits
are also similar The 1st defendant in both suits resisted the plaint claims
and contended that plaintiff was not ready and willing to take necessary
steps to get the assignment in his name. The 1st defendant denied the
averment that the agreement of sale was executed suppressing the
material facts. According to the 1st defendant the sale deed was not
executed since the plaintiff committed default in paying the balance
consideration and thus the 1st defendant suffered financial loss and she
was forced to sell her another property for a cheap consideration to meet
some emergent needs and that the plaintiff is not entitled to realise the
plaint claim.
5. The execution of Ext.A1 agreement is not disputed. The
receipt of advance amount and the further amount as stated in the plaint
are admitted by the 1st defendant The trial court appreciated the facts and
decided the issues on the basis of the oral evidence tendered by PW1,
DW1 and the documentary evidence. The trial court also concluded that
the quantum of amount stated in the plaint is the amount admittedly
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received by the 1st defendant and that the plaintiff has withdrawn from
Ext.A1 sale deed for legal and valid reasons.
6. The next contention examined by the trial court is as to
whether the 1st defendant has sustained any financial loss or not. . on a
perusal of the material on record I am of the view that the 1st defendant did
not adduce any evidence to prove that she has sustained financial loss
due to the non-performance and non-payment of the balance
consideration by the plaintiff. The trial court held that the sale deed was
not executed not due to the fault of the plaintiff, that there is no reason to
reject the plaint claim and that the 1st defendant committed breach of
contract. The trial court also held that the contention of the 1st defendant is
untenable and directed the 1st defendant to pay the plaint claim with
interest from the date of suit till realisation . The trial also decreed both
suits. I find no reason to interfere with the findings entered by the trial
court in both suits.. The views taken by the court below are the only
views possible in the given circumstances
In the result, these appeals fails and accordingly dismissed with
costs.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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A.S. No. 775 of 1998
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A.S. No. 115 of 1998
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JUDGMENT
20th October, 2009