IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 RFA.No. 453 of 2003() --------------------------------- OS.48/1999 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANTS OIN THE R.F.A. - DEFENDANTS 1 AND 3 TO 7 IN OS. ---------------------------------------------------------------------------------------------- 1. M/S. C.P. ADAM, NAGARAM, AMSOM AND DESOM, KOZHIKODE TALUK, REPRESENTED BY ITS MANAGING PARTNER C.P. ADAM, S/O. MOHAMMED KOYA, 'WHILE CABIN', CONVENT ROAD, CALICUT-32. 2. C.P. ADAM, `WHITE CABIN' CONVENT ROAD, CALICUT-32. 3. K.M. NAZARINE, D/O. C.P. ADAM, GLASS NO.7, THONDAYAD, CALICUT. 4. K.M. NAJUMMA, D/O. C.P. ADAM, WHITE CABIN, CONVENT ROAD, CALICUT-32. 5. K.M. ABIDA, D/O. C.P. ADAM, REVIRINE KRISHNAN NAIR ROAD, MALIKKADAVU, CALICUT. 6. K.M. MUHAMMED, S/O. C.LP. ADAM, WHITE CABIN, CONVENT ROAD, CALICUT-32. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY SRI.K.JAYAKUMAR, SENIOR ADVOCATE BY ADVS. SRI.P.B.KRISHNAN SRI.K.SHIBILI NAHA tss R.F.A. NO.453/2003 RESPONDENTS IN R.F.A. PLAINTIFFS IN O.S. ------------------------------------------------------------------ * 1. THENGUMPALLI SASIKUMAR, S/O. SHRI. RAMAN, RESIDING IN PORTHUSHARY AMSOM & DESOM, MUKUNDAPURAM TALUK, TRICHUR DISTRICT. (DELETED) *THE NAME OF THE RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DTD. 27.9.2010 IN IA. 2794/2010. 2. MACHINGAL VASUDEVAN, S/O. GOVINDAN, TRISSIVAPEROOR VILLAGE, THRISSUR. 3. SAVITHRI SUGATHAN, W/O. DR.KOZHIYOT MADATHIL SUGATHAN, `KOZHIYOT', MADATHIL, KACHERI AMSOM & DESOM, NADAKKAVU, KOZHIKODE TALUK. 4. ASHA VIJAYAKUMAR, W/O. THANDASSERY VIJAYAKUMAR, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT. R2 TO R4 BY ADVS. SRI.R.SUDHISH , SMT.M.MANJ, SRI.K.R.RANJITH. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2011, ALONG WITH CROSS OBJECTION NO.49 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.453/2003-D & Cross Objection 49/2004 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of January, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This is an appeal by the defendants in a suit for realization of money. The plaintiffs sought for return of advance paid under Ext.A1, an agreement for sale of the immovable property. The court below taking into consideration the fact that one among the plaintiffs relinquished his plaint claim and the plaint was amended trimming down the total plaint claim on the basis of that, granted a decree only to the extent of the quantum of advance referable to the plaintiffs on array at the time of trial, that is, plaintiffs 2 to 4. The court below also granted interest at the rate of 6%, though the claim was for damages quantified at the rate of 18% equivalent to the RFA453/03 & Cross Obj.49/04 -: 2 :- interest component that would have added on to the principal amount of advance. The court below also directed the parties to bear their respective costs. 2.The defendants are in appeal before us. The plea projected is that the defendants suffered loss and are entitled to adjust that amount from the plaintiffs. It is also the contention advanced before us in arguments that the amount paid under Ext.A1 as advance is essentially a security and there was an express stipulation in Ext.A1 as to appropriation. 3.Pressing the cross objections also, the argument advanced on behalf of the plaintiffs is that there is no shred of evidence in support of the defendants' claim as afore-noted and that the rate of interest granted to the plaintiffs pegged at 6% is wholly unreasonable. It is also argued that the court below acted illegally in refusing to award costs, for which also there is no reason RFA453/03 & Cross Obj.49/04 -: 3 :- either in law or on facts. 4.The issue agitated by the defendants in the appeal has been dealt with by the court below under issue no.7. Based on the evidence adduced by the defendants in the form of the testimony of D.W.1, the Managing Partner of the first defendant firm and the arguments advanced before it, the court below adverted to and considered the materials and came to the conclusion that the claim for damages is wholly unsustainable. It appears that, going by paragraph 19 of the impugned judgment dealing with issue no.7, the contention before the court below in this regard was on the basis that the farm which is the subject matter of the agreement was left to perils of nature without the defendants being able to take income or collect the yield. Harvesting, according to him, was not possible in view of Ext.A1 agreement. The pepper wines have grown wild and there were lot of problems which ultimately crippled the activities in the farm. RFA453/03 & Cross Obj.49/04 -: 4 :- We are not impressed. The defendants continue to be in possession of the property in spite of Ext.A1. Title was not transferred. Nothing in law or on facts impaired the defendants from cropping the yield and appropriating or even accounting it. The court below was, therefore, justified in repelling the claim. 5.This takes us to yet another argument advanced by the learned senior counsel for the appellants. He says that in terms of the additional written statement filed by the defendants, it is pointed out that the delay in the plaintiffs' performing the contract led to accrual of interest in a bank loan which was availed. This deserves to be repelled for two reasons. Firstly, the evidence on record is that no income tax was paid on the agricultural income, if any, derived from 1978 onwards. Obviously, there was no question of income being derived from the property. Secondly and more importantly, neither in Ext.A1 nor in any future understanding did the defendants RFA453/03 & Cross Obj.49/04 -: 5 :- disclose the existence of the loan. This is a material aspect which had a bearing even on the consensus arrived. That could have been the foundation for execution of Ext.A1 agreement. On facts, we find that this plea also is not sustainable. 6.In so far as the grant of interest is concerned, the learned counsel appearing for the plaintiffs argued that the rate of interest at 6% is wholly unreasonable. We find that the plaintiffs had quantified damages in the form of interest. There is no shred of material or evidence that the parties had agreed at any particular rate of interest in the event of party becoming liable to return the amount. There is also no material on record regarding any damage suffered on account of the delay in returning the amount. The transaction was in relation to an item of agricultural property. With the passage of time, even if the land available does not change, we do not find our way to interfere with the discretion RFA453/03 & Cross Obj.49/04 -: 6 :- exercised by the court below under Section 34 of the CPC in restricting the rate of interest to be 6%. We are, however, satisfied that the court below acted illegally in not awarding costs since there is no reason why costs shall not follow the result of this litigation. To that extent, the decree needs to be set aside. In the result, RFA.453/2003 is dismissed and Cross Objection 49/2004 is allowed in part directing that the plaintiffs will be entitled to costs throughout, proportionate to their success. Thottathil B.Radhakrishnan, Judge. P.S.Gopinathan, Judge. Sha/1901