IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 RSA.No. 887 of 2008() --------------------- AS.128/2007 of SUB COURT, PERUMBAVOOR OS.10/2006 of MUNSIFF COURT, KOLENCHERRRY .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SUKUMARAN NAIR, S/O.RAMA PANICKER, KUSUMAGIRI MORAPILLY HOUSE, KAKKANAD KARA, KAKKANAD VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.V.P.REGHURAJ RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. THOMAS, S/O.KURIAKOSE, VARIKKOLIMANNULLIL HOUSE, CHEMMANAD KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNAD TALUK. 2. SARAMMA, W/O.THOMAS, -DO- -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.887 of 2008 ---------------------------------------- Dated this the 29th day of May, 2009 JUDGMENT This Regular Second appeal is directed against the judgment and decree in A.S. No. 128/2007 on the file of the Sub court, Perumbavoor which confirmed the judgment and decree in O.S. 10/2006 on the file of the Munsiff's Court, Kolenchery. The suit is for specific performance of agreement for sale of immovable property. The trial court decreed the suit in part and allowing the plaintiff to realise Rs. 25,000 being refund of advance amount together with interest and future interest. The main relief sought for by the plaintiff is for compelling the defendants to execute Ext.A1 sale agreement. . The said relief was denied by the trial court The finding entered by the trial court was confirmed by the lower appellate court. Hence this second appeal .The parties hereinafter referred to plaintiff and defendant as arrayed in the suit. 2. The plaintiff and the defendants entered into an agreement on 30.6.2005 whereby the defendants agreed to sell their plaint schedule property.(The sale agreement was produced before the trial court and marked as Ext.A1) It is not in dispute that the plaint schedule property was agreed to be sold to the plaintiff by the defendants for a consideration of Rs. 92,500/- on or before 30.9.2005. and Rs. 25,000/- was paid as advance sale consideration. According to the plaintiff the defendants have R.S.A. No.887 of 2008 -2- not executed the sale deed as agreed between the parties Therefore the suit was filed for specific performance . As an alternate relief it is prayed that the plaintiff be allowed to realise Rs. 25,000/- being the refund of the advance amount and Rs. 50,000/- as compensation for the breach of contract committed by the defendants together with interest at 18% from 30.6.2005. 3. The defendants denied the averments in the plaint who have committed breach of contract and therefore the plaintiff is not entitled to any relief in the suit. 4. The trial court examined the issues in detail on the basis of the evidence on record. The evidence consists of depositions of PW1 DW1 Exts A1 to A4 (a) and B1 to B5. On an appreciation of the evidence and discussion of each and every facts and circumstances leading to the filing of the suit, the trial court held that there was no evidence on record, to show that after receipt of Ext.B1 reply notice by the defendants, the plaintiff had taken no positive steps to get the sale agreement executed in respect of the plaint schedule property by paying the balance sale consideration. The trial court also noticed that Exts.B2 to B4 encumbrance certificates were predated to 30.9.2005 for performance of Ext.A1 agreement, that the defendants had secured encumbrance certificates in respect of the plaint schedule property and they had got the plaint schedule property measured out by the Village Assistant concerned and Ext.B5 plan was got prepared. The trial court also noted that the conduct of the R.S.A. No.887 of 2008 -3- defendants will go to show that they were ready and willing to sell the plaint schedule property in compliance with their part of the obligation under Ext. A1 agreement. Under such circumstances the trial court rightly inferred that the plaintiff did not turn to perform his part of obligation under Ext. A1 agreement and the possible reason is as contended in the written statement is the sudden fall in the market price of the property Therefore the trial court held that the plaintiff is not entitled to get the a decree for specific performance and the alternate prayer for the refund of amount of advance was allowed . In the appeal filed by the plaintiff before the lower appellate court, the very same contentions were raised by the plaintiff. The lower appellate court also re-appreciated the evidence and re-considered the context and circumstances under which Ext. A1 agreement was executed and the subsequent developments. Finally the lower appellate court concurred with the the findings entered by the trial court. The lower appellate court also found that there was no evidence to show that the plaintiff has raised the balance sale consideration for execution of Ext.A1 sale agreement. The findings entered by the courts below are purely on facts and materials. I find no reason to interfere with the findings arrived at by the courts below and to invoke Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.887 of 2008 ---------------------------- JUDGMENT 29th May, 2009