IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 67 of 2005(E)
1. SAM B.SAHAYAM, S/O. BRUSE D.SAHAYAM,
... Petitioner
Vs
1. L.R.BEENA,
... Respondent
For Petitioner :SRI.G.SASIDHARAN CHEMPAZHANTHIYIL
For Respondent :SRI.RAM MOHAN.G.
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :20/10/2010
O R D E R
M.N. KRISHNAN, J.
...........................................
R.F.A.Nos.67,165 & 166 OF 2005
.............................................
Dated this the 20th day of October, 2010.
J U D G M E N T
R.F.A.No.67/2005 is preferred against the judgment
and decree of the 1st Additional Sub Judge, Trivandrum in
O.S.No.131/1995. R.F.A.No.165/2005 is preferred against
O.S.No.173/1995 and R.F.A.No.166/2005 is preferred against
O.S.No.175/1995. All these suits were for specific
performance of the contract with alternative reliefs for
damages and return of the amount.
2. The trial court on a consideration of the entire
materials held that the plaintiffs are not entitled to specific
performance of the contract, but directed the defendant to
return the advance amount paid + cost of construction made
by the plaintiffs in pursuance of the contract with 12%
interest from the last date of agreement dated 30.9.1994
till the date of suit and at the rate of 6% thereafter. It is
against those decisions, the defendant in these cases have
come up in appeal.
3. Heard the learned counsel for the appellant and also
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the counsel for the respondent in RFA.No.67/2005.
O.S.No.131/1995 against which RFA.No.67/2005 contains
the following facts:
The plaintiff and defendant have entered into an
agreement for sale with respect to 16 cents of land
comprised in Sy.No.156/2-14 of Vilavoorkkal village on
14.12.1993 with the stipulation to pay Rs.8,300/= per
cent. The period of agreement was to expire on 31.1.1994.
An amount of Rs.5,000/= was paid as advance. Subsequently
as the defendant could not execute the document, by virtue
of the endorsement dated 29.1.1994 the period was
extended and ultimately on 31.3.1994 again the period was
extended up to 30.9.1994. While executing the second
agreement, it was agreed upon by the defendant that the
plaintiff can construct compound wall over the property to
be assigned. Now the amount claimed by the plaintiff, so far
as advance is concerned, is Rs.5,000/= + Rs.35,000/= as
cost of construction + difference in value on account of non
performance of the contract.
4. On the other hand, the defendant would contend
that he has not committed the breach. A suit was filed by
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R.F.A.Nos.67,165 & 166 OF 2005
one Sara George and there was an injunction by the court
from executing the agreement and therefore, he was unable
to execute the document. It is also contended that the
plaintiff had only spent Rs.3,000/= towards construction
and therefore the plaintiff is not entitled to the relief.
5. A.S.No.173/1995 against which R.F.A.No.165/2005
is filed relates to the following facts:
There was an agreement between the plaintiff and the
defendant for the sale of 16 cents of property comprised in
Sy.No.156/2-14 of Vilavoorkkal village for a consideration of
Rs.9,000/= per cent and the period was to expire on
15.2.1994 and the plaintiff has paid an amount of Rs.5,000/=
as advance. On account of inability of the defendant the
agreement was initially extended up to 15.4.1994 and
thereafter again up to 30.9.1994. Meanwhile permission was
granted to the plaintiff to construct compound wall for the
property and for making other improvements. The plaintiff
had spent Rs.10,000/= for construction of the compound
wall. Though ultimately the plaintiff has sent a notice, the
defendant had failed to perform his part of the contract,
hence the suit. The defendant, on the other hand, would
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contend that he had not committed the breach of contract.
Therefore the plaintiff is not entitled to any relief.
6. The suit O.S.No.175/1995 against which R.F.A.No.
166/2005 is filed contains the following facts:
Here also there was an agreement with respect to 15
cents of property on 14.12.1993 between the plaintiff and the
defendant with stipulation to pay at the rate of Rs.5,000/=
per cent and Rs.5,000/= was paid as advance. The
defendant did not perform his part of the contract. Therefore
there was a subsequent endorsement and an agreement
whereby the term was extended up to 30.9.1994 and in
pursuance to the agreement, the plaintiff has constructed
basement for compound wall and also dug a well and had
expended Rs.25,000/=. In spite of readiness and willingness,
the defendant did not comply with the terms of the contract
and hence the suit.
7. In the written statement the defendant would
contend regarding execution of the agreement but would
submit that he has not committed breach of the contract
and it had happened only on account of the suit filed by
Sara George against him. He would also contend that he is
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prepared to pay the expense of Rs.15,000/= along with the
advance amount of Rs.5,000/=.
8. The cases were tried jointly and PWs 1 and 2 and
DW1 were examined. Exts.A1 to A18, B1, C1 and C2 were
marked and the court below granted a money decree in
favour of the plaintiff in all these cases. So far as specific
performance of the contract is concerned, this Court need
not probe into the matter for the reason that no appeal is
preferred by the plaintiffs challenging refusal of specific
performance of the contract. In all these cases there had
been an agreement between the plaintiff and the defendant
with respect to purchase of parcels of land and in all these
cases Rs.5,000/= had been paid as advance and by virtue of
the terms and conditions of the agreement, the plaintiff
had constructed compound wall and in one case had dug a
well. The court below found that the defendant was
restrained from performing his part of contract by virtue of
an order of injunction passed in a case filed by one Sara
George. The court considered that on account of the fact
that there was frustration of the contract the defendant
was unable to perform his part of the contract. I am not
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saying anything on the same for the reason that now the
specific performance is negatived which is not challenged.
The plaintiffs would contend that they are entitled to
proportionate increase as damages on account of escalation
of price of the property which had been declined by the
trial court. That is also not the subject matter of these
appeals and therefore, it also does not require consideration.
9. The learned counsel for the appellant had raised the
following points before me namely: (1) since there was an
offer by the defendant to pay the advance amount with
some amount as damages for the construction of wall, the
defendant shall not be saddled with the liability of payment
of interest, (2) the agreement does not contain any specific
term with respect to payment of interest and (3) if at all
interest is to be paid, it has to be paid only on the excess
amount which is awarded by the court other than what is
offered by the defendant.
10. At the outset, I may like to point out that here is a
defendant who had entered into an agreement for sale of the
property with the respective plaintiffs without disclosing the
fact that at an earlier point of time he had entered into an
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agreement for sale with one Sara George and the said
person had instituted the suit for specific performance of
the contract. So the conduct of the defendant by any
stretch of imagination cannot be said to be innocent. The
court passed an order of injunction. Necessarily it became
imperative for him to get the term of the agreement
extended and it was at that time the factum of litigation
and earlier agreement to sell have come into lime light.
Therefore all is not well with the conduct of the defendant.
11. The plaintiffs in these cases were earnest in getting
the property. They had paid the advance and at the request
of the defendant had agreed to extend the term of the
contract and further the defendant had permitted all these
plaintiffs to have the construction of the compound wall of
the property proposed to be purchased and they had invested
amount for the same. It is in this background one has to find
out the earnestness of the plaintiffs to get the property in
their favour. Just because the defendant submits that he is
prepared to pay the amount taken as advance and some
damages towards construction which the plaintiffs have
made, I am afraid that the same would entitle him to
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contend for the position that he is not liable to pay the
interest. If he had such a good motive behind him, under
ordinary circumstance along with the written statement, he
would have deposited the amount admitted by him. So that
the court could have averted awarding interest with
respect to the amount that had deposited. The plaintiffs
cannot be blamed for not accepting that plea in the written
statement for the reason that they had filed the suit for
larger relief of specific performance of the contract.
12. Now regarding non mentioning of payment of
interest in the agreement. It has to be stated that under the
bonafide faith and belief they will become the owners of the
property, the plaintiffs had invested the amount for the
construction of the compound wall. Similarly they had
parted with Rs.5,000/= each for the purpose of purchase as
sale consideration. The amount of Rs.5,000/= has been
retained and enjoyed by the defendant whereas the
plaintiffs did not get any fruits from the said agreement. So
custody of Rs.5,000/= as far as advance amount is
concerned is to be repaid with interest. Similarly now a
situation has arisen whereby though the compound walls
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are constructed, the plaintiffs are not entitled to get the
property for the reason of an order in another case. The
plaintiffs are not responsible for the same. They have never
contributed anything for the same. They were bonafide
persons prepared to purchase the property by spending
amount and they have invested the amount for the
construction of the compound wall and virtually they had
been thrown out of the property. They had invested their
amount which had become futile and did not get any benefit
from the same. It was on account of the conduct of the
defendant and it was a permissive construction made by the
plaintiffs and therefore, that amount also has to be
reimbursed.
13. Now it has to be stated that the wall remains in
tact in the property and it is only the amount that is spent
with interest has to be paid back. So far as estimation of cost
of the wall, I may state that it is not in a very satisfactory
manner the Commissioner has assessed. But it is a fact that
such a minimum amount should have been spent and
therefore I feel, the court after giving necessary deduction
only awarded a reasonable amount as the cost of
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construction. The defendant has not filed any objection to
the Commissioner’s report and therefore he cannot take
shelter under non availability of data. So taking into
consideration these materials, I find that the court below has
proceeded in the matter in the correct perspective and only
had awarded reasonable amount to the plaintiffs in each
case with the stipulation to pay interest at 12% from the
date of agreement till the date of suit and thereafter at the
rate of 6% from the date of suit till realisation.
The judgment and decree of the trial court do not call
for any interference and therefore, all these appeals fail
and they are dismissed, but I direct the parties to bear their
respective costs.
M.N. KRISHNAN, JUDGE.
cl
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