IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 92 of 2009()
1. SIVA PRASAD,
... Petitioner
Vs
1. NAZEEMUDHEEN , NEDIYAVILA VEEDU,
... Respondent
For Petitioner :SRI.R.KRISHNA RAJ
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :19/02/2009
O R D E R
K.T.SANKARAN, J.
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C.R.P.No.92 of 2009
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Dated this the 19th day of February, 2009
ORDER
The defendant in O.S.No.247/00 on the file of the court of
the Munsiff Magistrate of Paravur has filed this Revision
challenging the concurrent decisions of the courts below
decreeing the suit for money filed by the respondent.
2. The case of the plaintiff is that the defendant agreed
to sell the plaint schedule property to the plaintiff for a total
consideration of Rs.3,75,000/-. Ext.A1 agreement dated
19.6.2000 was executed between them and an advance amount
of Rs.10,000/- was paid to the defendant on the date of
agreement. The period fixed in the agreement for completion of
the transaction was two months from the date of the agreement.
The plaintiff says that the transaction could not be completed
since the defendant was not ready and willing to perform his
part of the contract. The plaintiff came to know that the property
was attached in O.S.No.328/97 pending before the Munsiff’s
Court, Paravur. That was not revealed by the defendant at the
CRP No.92/2009 2
time of entering into the agreement. Though the plaintiff made a
demand to the defendant to discharge the liability and to execute
the sale deed, the defendant failed to do so. Ext.A2 notice was
issued by the plaintiff to the defendant. The plaintiff came to
know that the defendant had entered into another agreement to
sell the same property with one Rafi. The present suit was filed
for recovery of the advanced amount paid by the plaintiff to the
defendant.
3. The defendant contested the suit and also preferred a
counter claim. Though the defendant admitted Ext.A1
agreement, he contended that the period fixed in the agreement
was over by 18.8.2000. The defendant issued notice dated
14.8.2000 asking the plaintiff to pay the balance consideration
and to get the document. The plaintiff did not reply. The
plaintiff was not ready and willing to perform his part of the
contract. The plaintiff said that he did not have enough money
to pay the balance consideration. The plaintiff requested for
granting further time to pay the balance consideration.
Thereafter, he issued Ext.A2 notice dated 23.8.2000 making false
statements. The defendant replied by notice dated 7.9.2000.
CRP No.92/2009 3
There was no default on the part of the defendant. The plaintiff
is not entitled to get refund of Rs.10,000/- paid as advance. In
the counter claim, the defendant claimed damages of Rs.10,000/-
from the plaintiff. The agreement for sale makes a provision that
if on measurement of the property, the extent is found to be less,
proportionate reduction should be made in the sale
consideration. There is also recital in the agreement that there
is no encumbrance on the property and if any encumbrance is
found, the defendant would discharge the same.
4. On consideration of the evidence of PW1, the plaintiff,
the evidence of DWs 1 and 2 and the documentary evidence in
the case, the trial court came to the conclusion that at the time
of execution of the agreement, the property was under
attachment in another suit and that the defendant did not
succeed in getting the attachment lifted. It was also found that
the defendant committed breach of contract. Accordingly, the
trial court decreed the suit and dismissed the counter claim.
5. The appellate court also considered the oral and
documentary evidence in detail and held that the breach of
contract was committed by the defendant. A contention was put
CRP No.92/2009 4
forward by the defendant that in order to get the attachment
lifted, the plaintiff had agreed to provide the sufficient amount
and the parties agreed to execute the sale deed after releasing
the attachment. This contention put forward by the defendant
was not proved by him by any acceptable evidence. It was
admitted by the defendant in evidence that even at the time of
entering into Ext.A1 agreement, the property was under
attachment in another suit filed against the defendant. However,
no mention was made about the same in the agreement. There is
no explanation why it was not mentioned in the agreement. The
defendant contended that the plaintiff was aware of the
attachment. But, the court below did not accept that case put
forward by the defendant, on a consideration of the evidence on
record. The court below held that it is difficult to accept the oral
agreement set up by the defendant. The court below also did not
accept the case of the defendant that the plaintiff was aware of
the attachment even at the time of entering into the agreement
for sale. The court below found that the plaintiff was not duty
bound to take necessary steps for getting the attachment
lifted. The defendant was under an obligation to get the
CRP No.92/2009 5
attachment lifted.
6. The courts below arrived at the findings on the basis
of appreciation of evidence. The findings rendered by the courts
below are findings of fact. The petitioner has not made out any
ground to interfere with the concurrent findings of fact. The
decisions of the courts below do not suffer from infirmity and
there is no error of jurisdiction.
The Civil Revision Petition lacks merit and it is accordingly
dismissed.
K.T.SANKARAN,
JUDGE
csl