IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 AS.No. 408 of 1998() -------------------- OS.105/1992 of SUB COURT, OTTAPPALAM .................... APPELLANT/PLAINTIFF ---------------------------------- JOSEPH, S/O,VALLANATTU DEVASSIA RSIDING AT THOTTAPPADI KALLAMALA VILLAGE MANNARKKAD TALUK BY ADV. SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE SRI.T.P.ELDHOSE SRI.JOHN VARGHESE SRI.D.NARENDRANATH SRI.M.HARISHARMA RESPONDENTS/DEFENDANTS : ------------------------------------------- 1. ANTONY, S/O.EZHUTHUPALLIKKAL CHACKO KARUMBANADAMKARA MADAPPALLI VILLAGE CHANGANASSERY TALUK KOTTAYAM DISTRICT 2. KUNHUMOHAMMED S/O.CHEERATHIDAYAN MOHAMMED RESIDING AT POOKKUNNU DESOM MANNARKKAD I VILLAGE, MANNARKKAD TALUK ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON FOR 0 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09.08.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.408 of 1998 ------------------------------------- Dated this the 9th day of August 2011 Judgment This appeal is by the disappointed plaintiff in OS No.105/92 before the Sub Court, Otappalam. The parties and facts are hereinafter referred to as they are available before the trial court. 2. By Ext.A1 agreement dated 28.04.1989, it is alleged that the first defendant undertook to assign the property covered by the agreement to the plaintiff for a consideration of Rs.21,000/- per acre. According to the plaintiff, Rs.5,000/- was paid by him as advance on the date of Ext.A1 itself. The defendant had to perform certain acts before the sale deed could be executed. On 20.07.1989, the plaintiff paid an additional sum of Rs.25,000/- towards sale consideration. It is averred in the plaint that the plaintiff was always willing and ready to perform his part of the contract. However, contrary to the AS 408/98 2 agreement, the defendants committed breach of the contract and therefore, the suit was laid for specific performance of the contract, declaration and compensation. 3. The first defendant resisted the suit and pointed out that it is the plaintiff, who had committed breach of contract. According to the first defendant, the plaintiff was never willing and ready to perform his part of the contract. The plaintiff was postponing the matter under one pretext or the other. The first defendant has a case that Rs.25,000/- was paid to him by the plaintiff on 20.07.1989 in consideration for permission to take lorries through the property of the first defendant. It is contended that time was an essence of the contract and that it was the plaintiff who had committed breach of contract and therefore, the amounts paid by the plaintiff stand forfeited. He also claims damages and compensation. On the basis of the above contentions, he prayed for dismissal of the suit. AS 408/98 3 4. In the separate written statement filed by the supplemental 2nd defendant, it is pointed out that he is a bona fide purchaser and is not bound by Ext.A1 Agreement. 5. On the above pleadings, issues were raised by the trial court. The evidence consists of documents marked as Exts.A1 and A1(a) from the side of the plaintiff and Exts.B1 to B5 from the side of the defendants. Exts.X1 to X4 were also marked. 6. The trial court, on an appreciation of the evidence, found that both the plaintiff as well as the defendant were guilty of breach of the agreement. The trial court also found that the first defendant is liable to refund the amount received by him and granted a decree to that extent. However, taking into consideration the fact that the plaintiff was also equally guilty of breach, no charge was granted on the suit property for the amount decreed in favour of the plaintiff. AS 408/98 4 7. Two questions arise for consideration in this appeal. They are (1)Whether the finding of the court below that the plaintiff has committed breach, is justified ? (2)Whether the court below is justified in not granting charge over the property ? It is not in dispute that there was an agreement evidenced by Ext.A1 for assignment of 2 acres of land @ Rs.21,000/- per acre in favour of the plaintiff. It is also not much in dispute that a sum of Rs.5,000/- was paid by the plaintiff to the first defendant on the date of agreement. It has come out in evidence that the sum of Rs.20,000 was paid on 20.07.1989. There is some dispute with regard to the purpose for which the said amount was paid. The plaintiff would say that it was towards the sale consideration. The first defendant says that it was paid as a consideration for permitting the plaintiff to take his lorries through the property of the first defendant. The said contention of the AS 408/98 5 first defendant has necessarily to fail in the light of Ext.B1. Ext.B1 is a letter admittedly written by the plaintiff to the first defendant wherein the plaintiff has expressed his inability to remit the entire sale consideration. It is also stated that he was able to raise only Rs.20,000/-. He also sought extension of time for payment of the balance sale consideration till 30.07.1989. That letter is dated 04.07.1989. It may be remembered here that the period of execution of the sale deed as per Ext.A1 was 75 days and that was to be over on 12th July 1989. On 20.07.1989, it is seen from the records that the first defendant did receive a sum of Rs.20,000/-. That must have been in pursuance of Ext.B1 letter and the claim of the first defendant that it was the consideration for permitting the plaintiff to take his lorries through the plaint schedule property, cannot be accepted at all. Thereafter, nothing transpired between the plaintiff and the defendant. Both of them kept quite and it so happened that the first defendant thereafter sold the property to the second defendant as per Ext.X1 dated AS 408/98 6 17.12.1991. 8. The plaintiff instituted the suit on 10.04.1992. Prior to the institution of the suit, at no point of time, the plaintiff had expressed his readiness to perform his part of the contract. The court below, on a consideration of the evidence, found that the plaintiff did not have necessary funds at that time by which the contract had to be executed initially and thereafter, he did not express his intention to perform his part of the contract. At no point of time after the execution of Ext.B1 document and the payment of Rs.20,000/-, the plaintiff had expressed his willingness to perform his part of the contract. 9. One would have expected the plaintiff if he was ready and willing at least to issue a notice calling upon the defendant to perform his part of the contract. There was no such move from the part of the plaintiff. To a certain extent, the lower court has also found that some of the obligations have not been performed by the defendant. Whatever that be, the fact remains that after Ext.B1, the AS 408/98 7 plaintiff did not move his little finger for execution of the contract. Under these circumstances, the trial court was fully justified in coming to the conclusion that the plaintiff has also committed breach of contract. The finding is based on evidence on record and it cannot be said that the finding is either perverse or unwarranted by the evidence on record. 10. The learned counsel for the appellant very vehemently contended that the act of the court below in not giving a charge over the plaint schedule property is illegal. The learned counsel pointed out that going by S.56(b) of the Transfer of Property Act, a statutory charge is created over the property and the court below was not justified in declining to grant the said charge. 11. The above argument, at the first blush seems to be attractive. But, on a closer scrutiny, it can be found that it is without any basis whatsoever. S.55(6)(b) of the Transfer of Property Act reads as follows : (6)The buyer is entitled - AS 408/98 8 (a).................................................................... (b) unless he has improperly declined to accept delivery of the property, to a charge on the property as against the seller and all persons claiming under him to the extent of the seller's interest in the property for the amount of any purchase money properly paid by the buyer in anticipation of the delivery and for interest on such amount and when he properly declines to accept the delivery also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.” 12. A reading of the above provision shows that if due to no fault on the part of the plaintiff, who is willing to perform his part of the contract is unable to take delivery of the property for which advance or earnest money is paid by him, he gets statutory charge over the property. This shows that the plaintiff must have been ready and willing to AS 408/98 9 perform his part of the contract and it was not due to any fault on his part that the contract was rescinded. 13. The claim of the learned counsel for the appellant that there is nothing to show that the plaintiff was not in possession of funds required for paying the first defendant, does not take the plaintiff anywhere. It is clear from Ext.B1 that it was the plaintiff who had sought extension of time. From the evidence, it appears that he had sought extension till 30.07.1989. That seems to have been granted. Thereafter, the plaintiff did nothing and slept over the matter. One must recall here that the suit has been filed after two and a half years after the date of Ext.B1 and also long after the assignment in favour of the second defendant. At no point of time in between, the plaintiff did call upon the first defendant to perform his part of the contract and express his readiness to perform his part of the contract. It necessarily follows that the words “unless he has improperly declined to take delivery” squarely apply to the facts of this case. AS 408/98 10 14. Therefore, the trial court was perfectly justified in its findings which are based on evidence on record. The appeal is without any merits and it is accordingly dismissed. No costs. P.Bhavadasan, Judge sta AS 408/98 11