IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 RFA.No. 515 of 2008() --------------------- OS.528/2006 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT/PLAINTIFF : ----------------- VINCY JOHN, AGED 40 YEARS, ILANJIKKAL HOUSE, KARA DESOM, EDAVILANGU VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: ------------- BHASKARAN, AGED 65 YEARS, S/O. ULLOKKARAN PARAMBIL PAPPU, PANTHEERAMPALA DESOM, PULLUT VILLAGE, KODUNGALLUR TALUK. BY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A. NO.3171/2008 DISMISSED. 4/8/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No.515 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2008. JUDGMENT Raman, J. The plaintiff is the appellant. Suit is one for specific performance of the contract or in the alternative, for return of advance money. The court below declined to grant a decree for specific performance of the contract, but granted a decree for return of the advance money with 6% interest. The agreement was for sale of an extent of 58 cents of land at the rate of Rs.11,400/- per cent after making an advance of Rs.50,000/-. The period for completion of the contract was six months. Alleging that the defendant did not execute the document and refused to comply with the notice, the suit was instituted. In the written statement filed by the defendant, it was inter- alia contended that the plaintiff was not ready and willing to perform his part of the contract, that the defendant is aged 90 years, that he had no proper eye sight and that the agreement itself was executed by misrepresenting the facts. 2. At the time of karar, the plaint schedule property was worth Rs.30,000/- per cent which fact was known to the plaintiff, but not known to RFA 515/2008 -2- the defendant and the plaintiff was only a broker. It is also contended that though the defendant was present in the Sub Registrar's Office, the plaintiff was not ready and willing to perform his part of the contract by paying the balance consideration. 3. The evidence consists of Exts.A1 to A4 besides the oral testimony of P.Ws.1 to 3 on the side of the plaintiff. On the side of the defendant, Dws.1 and 2 were examined and marked Exts.B1 to B6. The court below considered the issue as to whether the plaintiff was ready and willing to perform his part of the contract. It found that the plaintiff was not ready and willing to perform his part of the contract. In that regard, though the plaintiff testified that he was ready and willing to perform his part of the contract by paying the balance consideration as per the karar, the court below did not accept this testimony as true, since the plaintiff did not adduce any evidence to show that he was in a position to pay the balance consideration. On the other hand, it come out in evidence from the plaintiff himself that the balance sale consideration was to be arranged through one of his friends by name Roy Francis and had produced the Pass Book of Shri Roy Francis. But in this case, the said Roy Francis was not examined which fact itself will show that the plaintiff did not have sufficient funds with him to pay the balance consideration. Nothing is RFA 515/2008 -3- mentioned either in the notice or in the plaint that the consideration was arranged through Shri Roy Francis. Therefore, this is a case where the plaintiff failed to prove that he was ready and willing to perform his part of the contract by paying the balance consideration. On analying the evidence and the materials on record, the court below found that there was failure on the part of the plaintiff to substantiate his contention regarding his willingness to perform his part of the contract. We do not find any illegality in the order passed by the court below or in the matter of appreciation of evidence on record. If this finding is correct, necessarily the plaintiff cannot be granted a decree for specific performance of the contract. At the same time, the plaintiff was given a decree for return of advance money with interest. In such circumstances, we find no ground to interfere with the judgment of the court below. The appeal is dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/