IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 SA.No. 218 of 1998(A) -------------------------- AS.32/1993 of SUB COURT, HOSDRUG OS.31/1991 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S):(APPELLANT/PLAINTIFF) ------------------------------------------------ K. NARAYANAN, S/O. AMBU, RESIDING AT KANHANGAD VILLAGE, HOSDRUG TALUK, PO. KANHANGAD. BY ADVS. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARISHARMA SRI.T.P.ELDHOSE RESPONDENT(S):(RESPONDENT/DEFENDANT) ------------------------------------------------------ K. CHINDAN, S/O.V.RAMAN & PARVATHI AMMA, RESIDING AT HOSDRUG VILLAGE, HOSDRUG TALUK, (NEAR R.T.O'S OFFICE) PO. KANHANGAD BY ADVS. SRI.M.RAMESH CHANDER SRI.M.VIJAYAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 218 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of April, 2011. JUDGMENT The plaintiff, who was non-suited by the trial court, but who was granted a decree for return of advance amount by the lower appellate court is the appellant before this court. 2. The plaintiff entered into Ext.A1 agreement dated 15.2.1990 with the defendant for purchase of an extent of property. It is claimed that the plaintiff was put in possession of the property. According to the plaintiff, when the defendant did not honour the agreement, he laid the suit. 3. The defendant resisted the suit by pointing out that what was sought to be conveyed as per Ext.A1 agreement was the property comprised in R.S. 145/6, though the survey number shown in the agreement is R.S.145/7B. According to the defendant, S.A.218/1998. 2 the plaintiff was fully aware of the fact that the property that is sought to be conveyed is comprised in Sy.145/6 and not the property comprised in Sy. No.145/7B. The defendant therefore expressed his willingness to assign the property comprised in Sy. No.145/7B. 4. On the above pleadings, the parties went to trial. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A8 from the side of the plaintiff. The defendant examined D.W.1 and had Exts.B1 marked. Exts.C1 to C3 are the commission report and plan. 5. The trial court found that what the defendant claimed was true and dismissed the suit. The plaintiff carried the matter in appeal as A.S. 32 of 1993. In appeal, the lower appellate court disagreed with the trial court and granted a decree for return of the advance amount paid by the plaintiff to the defendant as per Ext.A1. 6. The plaintiff has come up before this court pointing out that the lower appellate court ought to have S.A.218/1998. 3 granted a decree for specific performance instead of directing return of advance amount. 7. Notice is seen issued on the following questions of law: “1. Does not the withholding of the document of title by a party, which has a direct bearing on the matters in controversy, entail drawing of an adverse inference against such party. 2. Whether the courts below were right in not drawing an adverse inference against the defendant for non-production of his document of title, in the light of his contentions that his property is comprised in R.S.No.145/6 and not R.S. No.145/7B. 3. Whether a mistake in an agreement with respect to the survey number constitute a mistake within the meaning of Section 20 of the Indian Contract Act. 4. Whether under the facts and circumstances of the case, the courts below were right in its approach that Ext.A1 agreement stands vitiated and that there was breach of contract by S.A.218/1998. 4 reason of a mistake with respect to survey number as shown in Ext.A1. 5. Whether under the facts and circumstances of the case, the reasons given by the courts below to decline to grant a decree for specific performance of Ext.A1 agreement are sustainable in law.” 8. There was much debate before this court regarding the actual property that was sought to be conveyed and which was covered by Ext.A1 agreement. The plaintiff would say that the property covered by Ext.A7 is comprised in R.S. No.145/7B. It is further contended that the defendant did not have any property in Sy. No.145/6 and the claim now made that there was mistake in the survey number is unfounded. 9. If one goes by the commission report, there may be some substance in what the plaintiff says. One has also to notice that the defendant has not produced his document of title, stating that he had handed over the same to a Bank for availing a loan. One fails to understand as to S.A.218/1998. 5 why the defendant could not get a certified copy of the document and produce the same. 10. However, one need not go into the details of the case put forward by either parties as the second appeal will have to fail on a short ground. 11. As already noted, in Ext.A1, the date of specific performance is shown as 31.1.1991. In paragraph 6 of the plaint it is stated as follows: “The cause of action for the suit arose on and since 15.2.1990 i.e., the date of agreement and 23.1.1991 when the defendant refused to comply with the terms of the agreement and subsequently and in Hosdrug village where the suit property is situate within the jurisdiction of this court. “ The suit was laid on 25.1.1991, i.e, prior to 31.3.1991. 12. The averments in the plaint leaves one in no doubt that the defendant even prior to the date of agreement had indicated that the defendant was not willing to convey the property in R.S.145/7B and therefore he had indicated his disinclination. The plaint specifically says that S.A.218/1998. 6 though assurance was made by the defendant, on 23.1.1991 the defendant had openly stated that he is not prepared to comply with the terms of Ext.A1 agreement and therefore the suit was laid on 25.1.1991. The suit is premature. 13. From the averments in the plaint, it is felt that the suit is based on anticipatory breach. Plaintiff had two options, either to accept the breach or wait till the period is over and seek performance. The plaintiff has chosen the former, in which case the plaintiff is entitled to claim only damages. Viewed from that angle, the plaintiff cannot get specific performance as she has not kept the contract alive but sued on the breach committed by the defendant. The suit is prior to the date of expiry of the period of agreement. The plaintiff has not chosen to stand by the contract but has accepted the breach. Therefore the finding of the lower appellate court that the plaintiff is entitled to only return of advance money need not be interfered with, though for different reasons. If the plaintiff choses to resort to other remedies available to him in law, he may do so. S.A.218/1998. 7 With this observation this Second Appeal is dismissed. P. BHAVADASAN, JUDGE sb.