IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 AS.No. 652 of 2001(E) & CROSS OBJECTION ------------------------------------------------------------------ OS.810/1995 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): DEFENDANT: ---------------------------------------------- FRANCIS, S/O.KURISUNGAL LONA, KOZHIKKADA, P.O. PULLUT, KODUNGALLUR. ( D I E D) *ADDL.APPELLANTS 2 TO 6 IMPLEADED: A2. THRESSIAMMA, W/O.KURISINGAL FRANCIS, CHAPPARA, KODUNGALLUR. A3. JOHNSON, S/O...DO...DO.... A4. THANKACHAN @ JOSEPH, S/O....DO...., DO..... A5. JANCI, D/O. ..DO...DO..... A6. JOYMON, S/O...DO...DO..... (*ADDL.APPELLANTS 2 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT VIDE ORDER DTD. 29/11/2004 IN I.A.NO.3956/2004) BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): PLAINTIFF: -------------------------------------------- NARAYANAN, S/O. MULANGAYIL KARAPPAN, ERIYAD VILLAGE AND DESOM, KODUNGALLUR TALUK. BY ADVS. SRI.SHABU SREEDHARAN, SRI.P.A.NOOR MUHAMMED. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/06/2010 AONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.4742/2001 IN AS NO.652/2001 DISMISSED 11/06/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 652 OF 2001 & Cross Objection = = = = = = = = = = = = = = = Dated this the 11th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Irinjalakuda in O.S.810/95. The plaintiff i n the suit moved for realisation of the amount representing the return of the advance amount, damages etc. The court below has granted a decree for Rs.20,200/- with 12% interest from the date of suit till realisation. It is against that decision the defendant has come up in appeal challenging the correctness of the decree and dissatisfied with the refusal to grant the damages and other things, the plaintiff has filed the cross objection. A.S. No. 652 OF 2001 -2- 2. Heard the learned counsel for both the sides. The plaintiff and defendant had entered into an agreement whereby the plaintiff had agreed to sell 13.5 cents of his land and given Rs.50,000/- for the purchase of the property which belonged to the defendant, having an extent of 10 cents. Ext.A1 is the karar entered into between the parties. As per the karar the balance amount has to be paid within a period of one month and the document is to be executed. In case of breach, provision for damages also is made. Now after entering into the agreement the plaintiff in the suit conducted a local enquiry and came to know that there had been land acquisition proceedings with respect to the property promised to be assigned by the defendant in his favour. Therefore he had issued a notice for which a reply had been sent. A.S. No. 652 OF 2001 -3- If really land acquisition proceedings has been initiated and the defendant has been in knowledge of the same he should not have ventured to assign the property to the plaintiff in the case. It is true that documents evidencing land acquisition proceedings are not produced before Court. but when examined as DW1 the defendant has categorically admitted that he had received some amount from the land acquisition proceedings. But at the same breath he would mention that he does not know whether any land acquisition proceedings were pending. This cannot be believed and the receipt of the money with respect to the land acquisition proceedings was much prior to the execution of Ext.A1. So it is crystal clear that the defendant was totally aware of the land acquisition proceedings and he had taken the A.S. No. 652 OF 2001 -4- plaintiff for a ride and it is he who had committed the breach of contract. Therefore there cannot be any doubt regarding the reimbursement of the advance amount paid by the plaintiff to the defendant. The learned counsel for the plaintiff would submit before me that there is a clause for damages and so over and above the advance amount damages also has to be paid. It has to be remembered that a buyer and seller have got responsibilities and liabilities. A prudent purchaser should really probe in before purchase or entering into an agreement for purchase of the property. The enquiry which he had done after the agreement if had been done prior to the agreement he would not have entered into such an agreement at all. Then it has also to be remembered within a period of 10 to 12 days a notice had been sent A.S. No. 652 OF 2001 -5- and there had been initiation of action. Damages are granted under the provisions of the Contract Act on account of the loss sustained by the conduct of the other party to the purchaser. Here nothing of that sort had happened and the Court has taken the precaution to grant him interest on the amount of Rs.20,000/-. So damages cannot be granted as rightly done by the court below. 3. Then it is argued that after the agreement he had paid Rs.1,000/-. But it is not evidenced by any document and receipt of the same is denied by the defendant. Therefore that also cannot be granted. 4. So far as the brokerage commission is concerned even according to the version of PW1 the liability to pay the brokerage arises when the transaction goes through and not before. A.S. No. 652 OF 2001 -6- Admittedly the transaction has not gone through, therefore he is not entitled to claim brokerage as well. 5. Now coming to the other contentions of the defendant in this case it has to be stated that the defendant clearly had violated the terms of the contract suppressing the factum of acquisition and therefore he is not entitled to any relief on that ground. He has raised a contention that he had expended Rs.10,000/- for the purpose of repair of the house and therefore it should also be taken into consideration while determining the final outcome of the case. The terms of the agreement makes it very clear that possession has not been handed over. PW1 and PW2 had also clearly deposed that possession has not been parted with. When the possession is not parted with and there is no evidence to A.S. No. 652 OF 2001 -7- prove the same then the question of repairing of the house by the defendant does not arise and so that contention by the learned counsel for the appellant cannot be accepted. 6. I make it very clear that I would have been inclined to grant some more amount to the plaintiff because of the attitude and the act done by the defendant in this case. Since the court below has granted 12% interest from the date of suit till realisation I am not considering that aspect because it will take care of at least illegal retention of the amount by the defendant which was legitimately due to the plaintiff. 7. The learned counsel would also contend after the decree the Court should have reduced it to 6%. Under the special circumstances of the case for the reasons mentioned above the A.S. No. 652 OF 2001 -8- interest of 12% is retained as such. From these discussions the appeal as well as the cross objection fail and they are dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 652 OF 2001 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 652 OF 2001 = = = = = = = = = = = J U D G M E N T 11th June, 2010.