IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 CRP.No. 142 OF 2005() --------------------- AGAINST THE JUDGMENT DATED 2.4.2004 IN A.S.143/01 ON THE FILE OF ADDL. SUB COURT, KOTTAYAM. O.S.NO.268/99 OF MUNSIFF’S COURT, KANJIRAPALLY. REVN. PETITIONER: RESPONDENT/PLAINTIFF: -------------------------------------------------- GOPINATHA PILLAI, S/O.NEELAKANDA PILLAI, MULAVELIL, KOOVAPPALLY KARA, KOOVAPPALLY VILLAGE. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT:APPELLANT/DEFENDANT: ------------------------------------------ DR.KANAM SANKARAPPILLAI, MEDICAL SUPERINTENDENT OF ARCHANA BABY FRIENDLY HOSPITAL, PANTHALAM. BY ADV. SRI.T.I.ABDUL SALAM THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.142/05 OR DER ON CM.APPL 120 OF 2005 IN CRP 142 OF 2005 DISMISSED 3.9.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO. 142 OF 2005 ------------------------------------------ Dated this the 3rd day of September, 2008 O R D E R Petitioner is the plaintiff and respondent the defendant in O.S. 268 of 1999 instituted before Munsiff Court, Kanjirappally claiming Rs.5,000/- with interest and cost from the respondent contending that on behalf of the respondent, petitioner entered into Ext.A1 agreement for purchase of the property belonging to PW2 Parameswaran Pillai and later under Ext.A2, respondent withdrew from the agreement and thereby petitioner lost Rs.5,000/-, which was paid as advance being part of the consideration to the property under Ext.A1 agreement and therefore respondent is liable to pay the same. Respondent resisted the suit denying the case that he authorised petitioner to enter into an agreement or he sent Ext.A2 notice. It was contended that in any case remedy of the petitioner is to claim back the amount paid as advance from PW2. The trial Court on evidence of PWs 1 and 2, DW1 and Ext.A1 to A3(a) granted a decree in favour of the petitioner for realisation of the amount CRP.142/05 2 with interest. Respondent challenged the judgment before Sub Court, Kottayam in A.S.143 of 2001. Learned Sub Judge on re- appreciation of evidence set aside the finding of the trial Court and dismissed the suit holding that remedy of the petitioner is to claim back the amount from PW2 and without exhausting the remedy as against PW2, suit is not maintainable. This petition is filed under Section 115 of Code of Civil Procedure challenging the judgment of the Appellate Court as no second appeal will lie as the amount claimed in the suit is only Rs.5,000/- with interest. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that learned Sub Judge did not properly appreciate the evidence or the facts and circumstances of the case. It was argued that though respondent denied that he authorised petitioner to enter into an agreement or an agreement was entered into with PW2 to purchase the property, on evidence Courts found that Ext.A1 agreement was entered into by petitioner with PW2 and it was for and on behalf of the respondent. It was also argued that Ext.A2 letter sent by the respondent establish that he authorised petitioner to enter the contract to purchase the property and to pay the advance amount and as respondent could not purchase CRP.142/05 3 the property as agreed, he undertook to take steps to see that PW2 returns the advance amount and as PW2 did not return the amount, Courts below could have granted the decree. It was argued that when an agreement was entered into by petitioner with PW2 only for and on behalf of the respondent and paid Rs.5,000/- to PW2 and that too for and on behalf of the respondent, petitioner is entitled to get back that amount and first Appellate Court was not justified in reversing the decree granted by the trial Court. 4. The amount claimed in the suit is the advance amount paid by petitioner to PW2 as part of the sale consideration, being the advance amount under Ext.A1. True, under Ext.A1, if the sale deed could not be executed for the fault of the petitioner, PW2 is entitled to get the loss sustained by him. Ext.A1 as such does not contain a forfeiture clause. Case of the petitioner is that PW2 did not return the advance amount and therefore he is entitled to get back the amount from the respondent. As rightly found by learned Sub Judge, when an advance amount of Rs.5,000/- was paid by petitioner to PW2 and the agreement was not performed, even if PW2 is entitled to claim loss as damages from the petitioner, it is for the petitioner to claim back CRP.142/05 4 the advance amount paid due under the agreement executed with petitioner. Respondent cannot be made to suffer the entire advance amount paid. It is only petitioner who could claim back the advance paid under Ext.A1. Respondent cannot claim the amount or institute the suit for the same. When claim for return of the advance paid is legally maintainable, without claiming the amount from PW2, suit as against respondent will not lie. In such circumstances, learned Sub Judge rightly found that without exhausting the remedy available to petitioner as against PW2, suit is not maintainable. I do not find any illegality or irregularity in the judgment warranting interference. Revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-