IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 RSA.No. 1319 of 2011() ---------------------- AS.96/2003 of ADDL. DISTRICT COURT, OTTAPALAM O.S.152/2000 OF MUNSIFF COURT, MANNARKKAD .................... APPELLANT/RESPONDENT/ DEFENDANT -------------------- SREEDHARAN, AGED 62 YEARS, S/O.BHARATHI AMMA, KARAKKULANGARA VEETTIL, RESIDING AT ARAYANGODE, THENKARA AMSOM AND DESOM IN MANNARKKAD TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT/APPELLANT/PLAINTIFF : --------------- KARMACHANDRAN, AGED 57 YEARS, S/O.PADMANABHAN, VENATTU VEETTIL, RESIDING AT ARAKURUSSI AMSOM AND DESOM, MANNARKKAD TALUK, PIN- 678582 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1319 OF 2011 --------------------------------------------- Dated 17th November, 2011 JUDGMENT Defendant in O.S.152/2000 on the file of Munsiff Court, Mannarkkad is the appellant. Respondent is the plaintiff. Respondent instituted the suit for realisation of THE advance amount paid under Ext.A1 agreement for sale executed on 26/7/1999 contending that the appellant agreed to sell the plaint schedule property for a total consideration of Rs.90,000/- and after receiving Rs.39,000/- as advance towards the sale consideration, Ext.A1 agreement was executed and the balance consideration under the agreement is to be paid before 24/1/2000. Though, on the request of the appellant the period was RSA.1319/11 2 extended, he did not execute the agreement and in such circumstances, respondent is entitled to realise the advance amount paid with interest. 2. Appellant resisted the suit admitting the agreement as well as the advance received. It was contended that as the respondent was not ready and willing to perform his part of the agreement, the sale deed could not be executed. The agreement was violated by the respondent. Hence he is not entitled to claim back the advance. 3. Learned Munsiff on the evidence dismissed the suit holding that it was the respondent who committed breach of the agreement and therefore, he is not entitled to claim back the advance paid. Respondent challenged the decree before District Court, RSA.1319/11 3 Ottappalam in A.S.96/2003. Learned District Judge on reappreciation of the evidence found that when receipt of Rs.39,000/- as advance was admitted, unless the appellant sustained loss or damages, on account of the failure of the respondent, even if he committed breach of the agreement, respondent is entitled to get back the advance. Relying on the evidence of the appellant as DW1, it was found that he admitted that as per the terms of the agreement, he is bound to repay the advance amount. Appeal was allowed and a decree was granted directing the appellant to pay Rs.39,000/- with interest at 6% p.a from the date of the suit till realisation. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. RSA.1319/11 4 5. Argument of the learned counsel is that when Ext.A1 provides for performance of the agreement within a period and the agreement was not performed by the respondent due to his own fault, he is not entitled to claim back the advance and therefore, first appellate Court was not justified in granting the decree. 6. As rightly found by the first appellate Court, execution of Ext.A1 agreement and receipt of Rs.39,000/- by the appellant is admitted. It is also admitted that as provided in the agreement, the sale deed was not executed. Even if, it is taken that failure to get the sale deed executed was on the part of the respondent, appellant is not entitled to forfeit the entire advance. He could legally claim only that portion of the amount which he RSA.1319/11 5 sustained loss. There is no plea in the written statement that agreement was broken by the respondent. There is also no evidence to prove that on account of the failure of the respondent, appellant sustained damages. In such circumstances, first appellate Court rightly held that the respondent is entitled to get back the advance amount. Learned District Judge has only awarded a nominal interest of 6% p.a. and that too only from the date of the suit. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.