IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 RSA.No. 41 of 2009() -------------------- AS.186/2007 of SUB COURT, PERUMBAVOOR OS.50/2004 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT/DEFENDANT:- ------------------------------------------ PAULOSE, AGED 53 YEARS, S/O. ITTAR, PALAKKATTUMALIL, RESIDING AT THANDATH, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENT: --------------- J. MATHEW, AGED 42 YEARS, S/O. JOSEPH, MACHERI HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE. ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.41 of 2009 ---------------------------------------- Dated this the 25th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S.No.186/2007of the Sub Court, Perumbavoor. The defendant in O.S.No.50/2004 on the file of the Munsiff Court, Perumbavoor is the appellant. The suit was filed by the respondent/plaintiff for return of advance amount. The suit was decreed by the trial Court with costs and was confirmed by the Appellate court with a slight modification regarding the rate of interest. Hence this appeal. 2. The date of agreement between the parties is 31/10/2003. The defendant is the owner of the plaint schedule property having an extend of 4.05 ares. The defendant agreed to sell the said property to the plaintiff for a consideration of Rs.11,000/- per cent. On the date of agreement the plaintiff paid Rs.25,000/- as advance amount. According to the plaintiff the sale deed was not executed in terms of the agreement due to the breach of contract by the defendant and that the plaintiff is entitled to return the advance amount. The defendant resisted the suit and contended that he was ready and willing to sell the property as per the terms of the contract but the plaintiff was not willing to purchase the property executing by complying with the terms of the agreement. Before the trial court the evidence was let in by both sides. The trial court after considering R.S.A.No.41 of 2009 2 the oral and documentary evidence tendered by both sides held that the only conclusion possible is that plaintiff was ready and willing to perform his part of contract and that Some how the sale deed could not be executed. The exact reason for non-execution of sale deed was not brought out in evidence. The trial court examined the question whether any damage was suffered by the defendant due to the non execution of the sale deed. His case that he suffered damages was negative by the trial court. The trial court decreed the suit declaring that the plaintiff is entitled to realise an amount of Rs.25,000/- with 12% interest and costs. Before the Appellate court mainly the appellant raised two contentions, one is regarding the award of interest and other is regarding the award of costs. The appellate court modified the trial court decree by reducing interest from 12% to 6% and regarding the award of costs, no modification was made. 3. The exact reason for not executing the sale deed is not brought out in examination of the parties. The trial court held that on the available evidence it is not possible to assess and conclude as to what exactly the reason for non-execution of the sale deed. I heard learned counsel for appellants and respondents. The trial court after evaluating the evidence did not enter into any positive finding regarding the question as to who is at default for not carrying out the terms of the agreement. R.S.A.No.41 of 2009 3 4. I do not think that there is any ground made out by the plaintiff for award of costs in his favour. Therefore the decree and judgment passed by the appellate court is modified. The plaintiff is not entitled to costs awarded by the trial court. Therefore the appellate court decree and judgment is modified to the extent of interfering with the award of costs by the trial court. The decree for realisation of Rs.25,000/- with 6% interest from the date of suit till realisation stands confirmed. The decree stands modified. No order as to costs. HARUN-UL-RASHID, JUDGE skj.