Siva Prasad vs Nazeemudheen on 19 February, 2009

Kerala High Court
Siva Prasad vs Nazeemudheen on 19 February, 2009




CRP.No. 92 of 2009()

                      ...  Petitioner


                       ...       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.
                        C.R.P.No.92 of 2009
            Dated this the 19th day of February, 2009


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


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



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