IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 RSA.No. 297 of 2010() --------------------- AS.11/2005 of I ADDL. DISTRICT COURT, PALAKKAD OS.4/1999 of SUB COURT, OTTAPPALAM .................... APPELLANT/APPELLANT/ DEFENDANT ------------------- NARAYANAN EDAPARAMBILO KUPPENGOTTIL, AGED 57 YEARS, KUNHILAKSHMI @ AMMU AMMA, RESIDING AT AMAYUR AMSOM & DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY SRI.PHILIP MATHEW RESPONDENT(S): RESPONDENTS -------------------------- 1. MOIDEENKUTTY, S/O. ELAMPARAMBIL MOIDU, AGED 56 YEARS, RESIDING AT AMAYUR AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. ASYA, W/O. MOIDEENKUTTY, AGED 49 YEARS, RESIDING AT AMAYUR AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.T.SETHUMADHAVAN FOR R1-2 SRI.PUSHPARAJAN KODOTH FOR R1-2 SRI.K.JAYESH MOHANKUMAR FOR R1-2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. --------------------------------- R.S.A.No.297 of 2010 --------------------------------- Dated this the 22nd day of June, 2010 JUDGMENT Aggrieved by the concurrent findings against defendant in O.S.4/1999 before the Sub Court, Ottappalam he has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2.The defendant had entered into an agreement for sale dated 6.1.1998 to purchase the plaint schedule property. The defendant in turn agreed to sell the plaint schedule property to the first plaintiff @ Rs.26,250/-per cent, for a total sum of Rs.7,87,500/- and since the first plaintiff was abroad, an agreement was entered into between the second plaintiff and the defendant. The second plaintiff paid a sum of Rs.1,00,000/- as advance sale consideration. The balance amount of sale consideration was to be paid within six months. The plaintiffs were always ready and willing to perform their part of the contract. The balance sale consideration was ready and and the matter was informed to the defendant on several occasion. In the meanwhile the defendant cut and removed valuable trees and other improvements and thus reduced the value of the property thereby acting against the terms of the agreement and interest of the plaintiffs. 3. The defendant resisted this suit. He admitted execution of R.S.A.No.297 of 2010 2 the agreement. It was stated that he had agreed to purchase the property for a total consideration of Rs.6,50,000/- from his brother and an amount of Rs.50,000/- was paid in advance. The intention of the defendant was to direct his vendor to assign the property to the plaintiff. Since the plaintiff has not performed his part of the agreement, the defendant was unable to perform the agreement with his brother. As soon as the notice issued by his brother Vijayan calling upon him to take steps for execution of sale deed demanding balance sale consideration he informed the first plaintiff. There was no response. So it was the plaintiffs who had committed breach of the contract. The defendant suffered loss and he is entitled to appropriate the amount paid by plaintiff. On the basis of these contentions he prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts. A1 and A2 series from the side of the plaintiffs. The defendant had DW1 examined and Exts.B1 to B3 were marked. On a consideration of the evidence, the trial court came to the conclusion that the defendant had no title to the plaint schedule property and that acts of waste has been committed in the property. Finding that plaintiffs were justified in rescinding the contract, the suit was decreed R.S.A.No.297 of 2010 3 directing return of the amount paid by the plaintiffs. 5. Defendant carried the matter in appeal as A.S.11/2005 before the District Court, Palakkad. The District Court on an independent appreciation of evidence found that the trial court was fully justified in decreeing the suit in favour of the plaintiff and directing return of the amount. The lower appellate court also found that failure to grant interest on the amount decreed was not justifiable and granted pendente lite and future interest at 6%. It is those concurrent findings that are assailed before this court. 6. The learned counsel very vehementally contended that courts below was not justified in coming to the conclusion that Rs.1,00,000/- paid by plaintiff was not as earnest money but as advance amount. It was argued that had the plaintiff paid balance consideration and got the sale deed executed, he would have gained. Since it was the plaintiff who was the defaulter, the defendant is not liable to return the sum of Rs.1,00,000/- paid by the plaintiff. It was also claimed that due to the default of the plaintiff he could not honour the agreement with his brother and he not only lost the profits of the transaction but also had to forfeit the sum of Rs.50,000/- paid to his brother as advance. 7. The contentions are without any merits. Both the courts come R.S.A.No.297 of 2010 4 to the conclusion that the default was by the defendant. The court below found that valuable trees in the property had been cut and removed and building pulled down. Those acts were against the terms of contract. The lower courts came to the conclusion that plaintiff is justified in rescinding the contract. They also found that there is no damages suffered by the defendant. The lower courts also came to the conclusion that there was no default on the part of plaintiff. The defendant admitted there were valuable trees in the property which was the subject matter of the agreement. He conceded that a lot of trees have been cut and removed and stumps can be seen in the property. It was those wanton acts which had reduced the value of the property and those acts were in violation of the agreement. Whatever that be, there is concurrent findings on fact against the defendant . No grounds are made out to interfere in the Second Appeal. It is not shown either that the findings are perverse or not warranted by evidence on record. Faced with the above situation, the appellants made a fervent plea to grant him sometime to pay off the decree debt. 8. Sri.Sethumadhavan appearing on behalf of the respondent submits that the property has already been brought to sale and sale stands posted to 22.7.2010 for confirmation. The learned counsel for R.S.A.No.297 of 2010 5 the appellant pointed out that if he is able to pay the amount, the sale may be directed to be set aside. 9. The learned counsel for the appellant prayed that he may be granted sometime to pay off the decree debt and till then the confiscation may be deferred. 10. Considering the various aspects the appellant is given 3 months from today to pay off the decree debt and the confirmation of sale will stand adjourned by three months. Subject to the above condition the appeal stands dismissed. This R.S.A is disposed of with the above observation. P.BHAVADASAN, JUDGE cms