IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 RFA.No. 401 of 2009 --------------------- OS.87/2008 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANTS/ DEFENDANTS ----------------------------- 1. CHIRAYATH CARS, CHALIKKAVATTAM JUNCTION VYTTILA, ERNAKULAM REP.BY MR.EBBY GEORGE. 2. EBBY GEORGE, CHIRAYATH CARS, CHALIKKAVATTAM JUNCTION, VYTTILA, ERNAKULAM. BY ADV. SRI.M.AJAY SRI.CIBI THOMAS RESPONDENT/PLAINTIFF: ---------------------------- T.C.PREMRAJ, K.P,.HOUSE, MAYYIL, KANNUR. SRI.MADHU RADHAKRISHNAN FOR CAVEATOR THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = R.F.A. 401 OF 2009 = = = = = = = = = = = = = DATED THIS, THE 28TH DAY OF AUGUST, 2009. J U D G M E N T Bhavadasan, J. Defendants are the appellants. The suit is one for money. The plaintiff is a business man. The first defendant is a firm doing business in used cars and the second defendant is its proprietor. The plaintiff approached the first defendant to purchase a car and on the representation made by the second defendant that a Mercedes Benz “S” Class 'L' Model 2000 car bearing Registration No. MH-04- AW-4201 was available for a price of Rs. 32 lakhs, the plaintiff decided to purchase the same and paid Rs. 10 lakhs as advance, agreeing to pay the balance amount within 15 days from taking delivery of the car. The agreement was that if the balance amount is not paid, the 10 lakhs initially paid would be paid back and the car would be returned. Delivery of the vehicle was taken on 28.7.2006. However, since the plaintiff had to leave the country immediately due to business commitments, he decided to return the car to the R.F.A. 401/2009 2 defendants within 15 days period as agreed upon by the parties and entrusted the vehicle with his brother in order to return the same to the defendants. According to the plaintiff, when his brother intimated this to the defendants, they informed that the advance amount could not be paid back immediately as the car will have to be put for sale again and his brother was made to issue an authorization letter in favour of the first defendant to resell the car for Rs. 35,00,000/-. It was also agreed that the defendants would refund Rs. 10 lakhs after deducting 2% service charges. But the defendants did not repay the amount as agreed upon and hence the suit. 2. The suit was resisted by the defendants. It is stated that the car involved in the suit was handed over to the defendants by one Vijayakumar for sale at a price of Rs. 32 lakhs, with the instruction that delivery of the car should not be made to anybody without full payment of the sale consideration. In July, 2006, the plaintiff and his brother visited the show room of the defendants and agreed to purchase the car for Rs. 32 lakhs, that on payment of Rs. 10 lakhs as advance sale consideration they took possession of the car agreeing to pay the balance amount within fifteen days. The entire advance amount received from the plaintiff was handed over to Sri. Vijayakumar. The plaintiff did not pay the balance sale R.F.A. 401/2009 3 consideration as agreed. Since the plaintiff failed to pay the balance sale consideration the defendants were instructed to sell the car as per the market value, that in the meanwhile the car suffered considerable damages. Sri. Vijayakumar issued a notice to the plaintiff and his brother to pay the balance sale consideration and took the car back. Due to the failure on the part of the plaintiff the defendants suffered financial loss. Since there was no buyers even for Rs. 20,00,000/- and the vehicle was returned to Sri. Vijayakumar. According to the defendants, the plaintiff is not entitled to recover any amount from them. 3. The trial court, for the purpose of disposal of the suit, framed necessary issues and examined PW.1 on the side of the plaintiff besides marking Exts.A1 to A4 . On the side of the defendants,the second defendant was examined as DW1 and Ext. B1 was marked. On a consideration of the materials on record, the trial court came to the conclusion that the defendants are bound to repay the advance amount to the plaintiff and passed a decree on the basis of the said finding. The said decree and judgment are assailed by the defendants in this appeal. 4. When the matter came up for admission, the respondent entered appearance and both sides were heard. It was agreed by both R.F.A. 401/2009 4 sides that if the appellants pay an amount of Rs. 9 lakhs, the matter can be settled. Today, when the case was taken up for consideration, the learned counsel appearing on behalf of the appellants has handed over a DD for the said amount to the learned counsel appearing on behalf of the respondent. Thus, the decree in O.S. 87/2008 before the IInd Additional Sub Court, Ernakulam is recorded as satisfied and no more claims remain on the basis of that decree. In the circumstances, there will be no order as to costs. Since the matter had been settled even before the admission of the appeal, we waive payment of balance court fee. The appeal is disposed of as above. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/-