IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 515 of 2008()
1. VINCY JOHN
... Petitioner
Vs
1. BHASKARAN
... Respondent
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :04/08/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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R.F.A. No.515 of 2008
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Dated this the 4th day of August, 2008.
JUDGMENT
Raman, J.
The plaintiff is the appellant. Suit is one for specific performance of
the contract or in the alternative, for return of advance money. The court
below declined to grant a decree for specific performance of the contract,
but granted a decree for return of the advance money with 6% interest. The
agreement was for sale of an extent of 58 cents of land at the rate of
Rs.11,400/- per cent after making an advance of Rs.50,000/-. The period
for completion of the contract was six months. Alleging that the defendant
did not execute the document and refused to comply with the notice, the suit
was instituted. In the written statement filed by the defendant, it was inter-
alia contended that the plaintiff was not ready and willing to perform his
part of the contract, that the defendant is aged 90 years, that he had no
proper eye sight and that the agreement itself was executed by
misrepresenting the facts.
2. At the time of karar, the plaint schedule property was worth
Rs.30,000/- per cent which fact was known to the plaintiff, but not known to
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the defendant and the plaintiff was only a broker. It is also contended that
though the defendant was present in the Sub Registrar’s Office, the plaintiff
was not ready and willing to perform his part of the contract by paying the
balance consideration.
3. The evidence consists of Exts.A1 to A4 besides the oral testimony
of P.Ws.1 to 3 on the side of the plaintiff. On the side of the defendant,
Dws.1 and 2 were examined and marked Exts.B1 to B6. The court below
considered the issue as to whether the plaintiff was ready and willing to
perform his part of the contract. It found that the plaintiff was not ready and
willing to perform his part of the contract. In that regard, though the
plaintiff testified that he was ready and willing to perform his part of the
contract by paying the balance consideration as per the karar, the court
below did not accept this testimony as true, since the plaintiff did not
adduce any evidence to show that he was in a position to pay the balance
consideration. On the other hand, it come out in evidence from the
plaintiff himself that the balance sale consideration was to be arranged
through one of his friends by name Roy Francis and had produced the Pass
Book of Shri Roy Francis. But in this case, the said Roy Francis was not
examined which fact itself will show that the plaintiff did not have
sufficient funds with him to pay the balance consideration. Nothing is
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mentioned either in the notice or in the plaint that the consideration was
arranged through Shri Roy Francis. Therefore, this is a case where the
plaintiff failed to prove that he was ready and willing to perform his part of
the contract by paying the balance consideration. On analying the evidence
and the materials on record, the court below found that there was failure on
the part of the plaintiff to substantiate his contention regarding his
willingness to perform his part of the contract. We do not find any illegality
in the order passed by the court below or in the matter of appreciation of
evidence on record. If this finding is correct, necessarily the plaintiff
cannot be granted a decree for specific performance of the contract. At the
same time, the plaintiff was given a decree for return of advance money
with interest.
In such circumstances, we find no ground to interfere with the
judgment of the court below. The appeal is dismissed.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/