IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 AS.No. 115 of 1999(C) --------------------- OS.378/1995 of ADL.SUB COURT, THALASSERY .................... APPELLANT: DEFENDANT NO.1 ---------------------------------------------- CHANDROTH NISHITHA D/O CHANDROTH CHINDAN NAIR, 31 YEARS , NO OCCUPATION ELAVAYOOR AMSOM DESOM KANNUR TALUK BY ADV. SRI.P.M.PAREETH RESPONDENTS: PLAINTIFF AND DEFENDANT NO.2 ---------------------------------------------------------------------- *1. O.C.ABOOTTY, S/O KUNHIKUTTY ALI (DIED) 54 YEARS, TRADER, THALASSERY AMSOM VADIKKAKAM DESOM, THALASSERY TALUK 2. PALLIKANDY MOOPANDAVIDA SHAMSUDEEN S/O MAMMU, 52 YEARS TRADER, THIRUVANGAD AMSOM AND DESOM THALASSERY TALUK . ADDL.R3 P.M.RABI (WIFE) ADDL.R4. P.M.UMMER ADDLR5. P.M.PACHUMMA ADDLR6. P.M.ZAREENA ADDL.R7.P.M.AKBAR SIDHIQUE ADDL.R8.P.M. BASMA (ADDITIONAL RESPONDENTS 3 TO 8 ARE RESIDING AT THALASSERY AMSOM VADIKKAKOM DESOM, THALASSERY TALUK , KANNUR DISTRICT.) (ADDITIONAL RESPONDENTS 3 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED R1 AS PER THE ORDER DATED 8.1.2007 IN I.A. NO. 2267/2006 ) ADV. SRI.A.MOHAMED MUSTAQUE SRI.A.MOHAMED MUSTAQUE FOR R3-8 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20.10.2009 ALONG WITH AS NO. 775 OF 1998 THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 849 OF 1999 IN A.S. NO. 115 OF 1999 DISMISSED ORDER IN C.M.P. NO. 848 OF 1999 IN A.S. NO. 115 OF 1999 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 20.10.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S. No. 775 of 1998 & A.S. No. 115 of 1999 ---------------------------------------- Dated this the 20th day of October, 2009 JUDGMENT The above appeals arise out of decrees and judgments passed by the Sub court Thalassery in O.S. Nos. 332/1995 and 378/1995 respectively. The plaintiff and 2nd defendant in both suits are the same persons . The 1st defendant in O.S No. 332/1995 is one Chirinakandy Thottoli Ottapilan Devi Amma and in O.S. No. 378/1995 is the daughter of the 1st defendant in O.S No. 332/1995. The 1st defendant in both suits agreed to sell the property scheduled to the respective plaints to the same plaintiff. The suits were filed for realisation of advance amounts paid by the plaintiff to the 1st defendants in both suits. The suits were decreed. Hence these appeals by the 1st defendant in both suits. 2. The subject matter of O.S. No. 332/1995 is 22 Cents. On 12.8.1994 the plaintiff and defendants executed Ext.A1 agreement whereby the 1st defendant agreed to sell the plaint schedule property for a price fixed by the parties i.e at the rate of 12,000/- per Cent. The 1st defendant received Rs.15,000/- as advance amount. The date fixed for execution of the registered sale deed is on or before 11.2.1995, after receiving the balance consideration. Subsequently on 25.9.1994 the 1st defendant approached the plaintiff and received a further amount of Rs. A.S. No. 775 of 1998 & A.S. No. 115 of 1999 -2- 20,000/- It is alleged in the plaint that subsequently the plaintiff and 2nd defendant came to know that a portion of the property has been acquired for the construction of a bye-pass road for a national highway. According to the plaintiff the proposal of the said road and the acquisition for the same was fully known to the 1st defendant and that Ext.A1 sale deed was executed by the 1st defendant suppressing the real facts. It is also averred in the plaint that when the plaintiff and the 2nd defendant came to know of the acquisition of the portion of the plaint schedule property and found that survey stones were fixed by the national highway authorities over the plaint schedule property, the plaintiff approached the 1st defendant for the return of Rs, 35,000/- with interest which was received by the 1st defendant. Since the 1st defendant evaded the payment of the above said amount the suit was filed for realisation of the same. 3. The plaint schedule property in O.S. No. 378/1995 is the adjoining property which stands in the name of the 1st defendant who is the daughter of the 1st defendant in O.S. No. 332/1995. The extent of property therein is also 22 Cents In this suit also the price rate per Cent and the date of the agreement for sale are same as mentioned in O.S. No. 332/1995. The sale deed is also marked as Ext.A1. The 1st defendant received an advance amount Rs.15,000/- .The date fixed for execution of the sale deed is on or before 11.2.1995 after receiving the balance consideration. Subsequently on 10.9.1994 the 1st defendant approached the plaintiff and received a further amount of Rs. 10,000/- Thus altogether an amount of Rs. 25,000/- was received from the plaintiff by the 1st A.S. No. 775 of 1998 & A.S. No. 115 of 1999 -3- defendant. The plaintiff sued for relisation of the amount of Rs.25,000/- with interest on the very same set of facts as mentioned in O.S. 332/1995. The decreed amount in in O.S. No. 332/1995 is Rs.40,025.18 and the decreed amount in O.S No. 378/1995 is Rs. 28,772.58. 4. The parties hereinafter are referred to plaintiff and defendants as arrayed in O.S No.. 332/1995 The plaintiff in both suits are the same person . Different agreements were executed on the same date . The facts leading to the filing of the suits are similar. The issues raised in both suits are also similar The 1st defendant in both suits resisted the plaint claims and contended that plaintiff was not ready and willing to take necessary steps to get the assignment in his name. The 1st defendant denied the averment that the agreement of sale was executed suppressing the material facts. According to the 1st defendant the sale deed was not executed since the plaintiff committed default in paying the balance consideration and thus the 1st defendant suffered financial loss and she was forced to sell her another property for a cheap consideration to meet some emergent needs and that the plaintiff is not entitled to realise the plaint claim. 5. The execution of Ext.A1 agreement is not disputed. The receipt of advance amount and the further amount as stated in the plaint are admitted by the 1st defendant The trial court appreciated the facts and decided the issues on the basis of the oral evidence tendered by PW1, DW1 and the documentary evidence. The trial court also concluded that the quantum of amount stated in the plaint is the amount admittedly A.S. No. 775 of 1998 & A.S. No. 115 of 1999 -4- received by the 1st defendant and that the plaintiff has withdrawn from Ext.A1 sale deed for legal and valid reasons. 6. The next contention examined by the trial court is as to whether the 1st defendant has sustained any financial loss or not. . on a perusal of the material on record I am of the view that the 1st defendant did not adduce any evidence to prove that she has sustained financial loss due to the non-performance and non-payment of the balance consideration by the plaintiff. The trial court held that the sale deed was not executed not due to the fault of the plaintiff, that there is no reason to reject the plaint claim and that the 1st defendant committed breach of contract. The trial court also held that the contention of the 1st defendant is untenable and directed the 1st defendant to pay the plaint claim with interest from the date of suit till realisation . The trial also decreed both suits. I find no reason to interfere with the findings entered by the trial court in both suits.. The views taken by the court below are the only views possible in the given circumstances In the result, these appeals fails and accordingly dismissed with costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No. 775 of 1998 & A.S. No. 115 of 1998 ---------------------------- JUDGMENT 20th October, 2009