IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE SUNDAY, THE 5TH OCTOBER 2008 / 13TH ASWINA 1930 AS.No. 47 of 1997(E) -------------------- OS.51/1994 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT(S)/ DEFENDANTS: ---------------------------------- 1. RITA, AGED 45, W/O. ANTONY, VALIAVEETTIL HOUSE, ELANKUNNAPUZHA VILLAGE, VYPEEN. 2. GRACY, AGED 32, W/O. JOSEPH AVVA HOUSE, ELAMKUNNAPUZHA VILLAGE, VYPEEN. 3. K.P.SHANMUGHAN, KOLLAMPARAMBIL HOUSE, ELAMKUNNAPUZHA VILLAGE, VYPEEN. BY ADV. SMT.V.P.SEEMANDINI (SR.) SRI.M.S.UNNIKRISHNAN RESPONDENT(S): --------------- K.P.RATHEESAN, AGED 37, S/O. PAPPU, KILLAMPARAMBIL HOUSE, NARAKKAL. ADV. SRI.K.M.SATHYANATHA MENON SMT.A.SHAYLAJA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT TODAY ALSO THERE IS NO REPRESENTATION FOR EITHER SIDES. HENCE THE APPEAL WILL STAND DISMISSED FOR DEFAULT. 15/12/2008 SD/ PIUS C.KURIAKOSE, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.47 of 1997 ------------------------------------------- Dated this the 14th day of July, 2009 JUDGMENT The appellants are the defendants in O.S.No.51 of 1994 of the Subordinate Judges Court, Kochi. They challenge the judgment and decree passed by the court below allowing the respondent - plaintiff to recover an amount of Rs.50,000/- from the first and second appellants with interest and costs of the third appellant - defendant. 2. According to the respondent - plaintiff, he had entered into an agreement with appellants 1 and 2 who are defendants 1 and 2, for the purchase of 10 cents of land and a residential building, which is the plaint schedule property for a total consideration of Rs.1,30,000/-. The agreement was entered into on 22.2.1992 and as per the terms of the agreement, an amount of Rs.50,000/- was paid by the plaintiff as advance to defendants 1 and 2. The balance amount was agreed to be paid within a period of six months during which period, the sale was to be completed. The six months period A.S.No.47 of 1997 2 stipulated expired only on 22.8.1992. However, on 7.7.1992, even before the expiry of the period of the agreement, defendants 1 and 2 executed a power of attorney in favour of the third defendant authorising him to sell the property to some other person. On the basis of the said power of attorney, the third defendant entered into an agreement with one Sukumaran agreeing to sell the plaint schedule property to him for a consideration of Rs.1,80,000/-. Though the plaintiff had approached defendants 1 and 2 on a number of occasions before the expiry of the term of the agreement, requesting them to execute the sale deed and complete the transaction, they only postponed the execution of the sale deed. Finally, on 20.11.1993, when the plaintiff again approached defendants 1 and 2 for execution of the sale deed, defendants 1 and 2 told him that the third defendant had been authorised by them to sell the property. He then approached the third defendant, who told him that he had already entered into an agreement to sell the property to a third party. Therefore, the plaintiff filed a suit, O.S.No.6 of 1994 before the Munsiff's court, Kochi and an order of injunction was obtained A.S.No.47 of 1997 3 restraining the defendants from alienating the property. Subsequently, the petition for injunction was dismissed. According to the plaintiff, he was not interested in purchasing the property at present. He wanted to get back the advance amount paid towards the sale consideration. Since the defendants had violated the terms of the agreement, they had no right to appropriate the advance amount paid by him. As the amount was not paid back in spite of repeated demands, the suit was filed praying for a decree for recovery of the advance amount paid by him with interest thereon at the rate of 18% per annum. 3. Defendants 1 and 2 filed joint written statement contesting the suit. According to them, the plaintiff had suppressed material facts. An amount of Rs.50,000/- was received by them by way of security for the due performance of the agreement for sale. The plaintiff and his brother, the third defendant had approached the husbands of the defendants offering to purchase the suit property. Accordingly, an agreement was executed by defendants 1 and 2 at the instance of their husbands. It is true that they have executed a A.S.No.47 of 1997 4 power of attorney in favour of the third defendant. In the last week of July 1992, the plaintiff and the third defendant had approached the husbands of defendants 1 and 2 with a request for return of the advance amount paid, informing them that they were not interested in purchasing the property as agreed. In order to help the plaintiff wriggle out of the penalty clause contained in the agreement, the third defendant offered to sell the property for a higher price than what was agreed, if a power of attorney was executed in his favour authorising him to sell the property. Accordingly, a power of attorney was executed in favour of the third defendant on 27.7.1992 and the advance amount was returned to the plaintiff on the same day itself. The plaintiff was fully aware of the execution of the power of attorney and his contention that he was not aware of the same is not true. Thereafter, an agreement was entered into with one Sukumaran for selling the property to him. Subsequently the sale deed was also executed in his favour. According to them, there is no failure on their part to abide by the terms of the agreement. The plaintiff had never requested them to execute the sale deed in his favour. Therefore, they A.S.No.47 of 1997 5 prayed for dismissal of the suit. 4. The third defendant filed a separate written statement contending that he was an unnecessary party to the suit. He is the eldest brother of the plaintiff. There is no ill-will or animosity between him and the plaintiff. He had negotiated with defendants 1 and 2 for entering into an agreement dated 22.2.1992. He also helped the plaintiff in avoiding the agreement without forfeiture of the amount paid by him as advance. For the purpose, he undertook to sell the suit property for a higher price. Accordingly, a power of attorney was executed by the 1st and 2nd defendants in his favour. He had to wait for one year to find out a suitable buyer to purchase the property. He had entered into an agreement with one Sukumaran to sell the property to him for an amount of Rs.1,40,000/-. The plaintiff claimed the excess amount so fetched by the property. When the third defendant refused to accede to his demand, he became inimical towards him. Thereafter, for the purpose of delaying and defeating the sale, he filed an injunction suit before the Munsiff's Court and later on the present suit, suppressing material facts. According to A.S.No.47 of 1997 6 him, the plaintiff was aware of execution of the power of attorney on 27.7.1992 itself. 5. The suit was tried by the court below on the above pleadings, after framing the following issues: 1) Has the plaintiff rescinded from the contract and got back the advance amount as alleged by the defendants? 2) Whether the third defendant a necessary party to the suit ? 3) Is the plaintiff entitled to realise the plaint amount from defendants? 4) Reliefs and costs. 6. The evidence in the case consists of the oral testimonies of PW1, DW1 and DW2 and the documentary evidence Exts.A1 and B1 to B3. 7. The court below considered the contentions of the rival parties in the light of the evidence on record, both oral and documentary and came to the conclusion that there is no evidence in the case to show that the plaintiff was willing to perform his part of the contract. It has been found that, it was due to the fault of the plaintiff that the agreement could not be completed. However, the court below found that defendants 1 A.S.No.47 of 1997 7 and 2 had no right to appropriate the amount of Rs.50,000/- admittedly received by them as per the terms of the agreement, since they have no case that they had suffered any loss consequent to the breach of the agreement. The court below has found that there is no reliable evidence to find that the amount of Rs.50,000/- had been returned to the plaintiff by defendants 1 and 2, as contended by them. Therefore, a decree has been passed allowing the plaintiff to recover the amount of Rs.50,000/- from defendants 1 and 2 with interest at the rate of 12% per annum. Defendants 1 and 2 attack the findings of the court below contending inter alia that, they have already returned the advance amount of Rs.50,000/-. 8. I have heard the learned counsel for the contesting parties. I have also been taken through the evidence in the case, both oral and documentary. 9. This appeal is filed by all the defendants in the suit, together. It is interesting to note that the court below has found the third defendant, who is the present third appellant to be an unnecessary party to the suit and has held him entitled to recover his costs from the plaintiff. Yet, he has joined the party A.S.No.47 of 1997 8 array of this appeal as an appellant. It does not stand to reason why and how he is aggrieved by the findings of the trial court and the judgment and decree of the court below, especially in view of the fact that the judgment and decree of the court below do not affect his interests in any manner. His conduct in filing the appeal renders the genuineness of the case of the appellants suspect. 10. The court below has found that the case of the plaintiff that he was at all times ready and willing to pay the balance amount due and to complete the sale transaction cannot be accepted. His case that he had approached defendants 1 and 2 on a number of occasions requesting for execution of the sale deed is also held to be false. The said findings of the court below have become final for the reason that the plaintiff has not filed any appeal or cross appeal against the same. Therefore, the only question that survives is whether the plaintiff is entitled to recover the amount paid as advance by him under the agreement? 11. The point: “Whether the respondent/plaintiff is entitled to A.S.No.47 of 1997 9 recover the amount of Rs.50,000/- paid as advance by him, from defendants 1 and 2? 12. The receipt of the amount of Rs.50,000/- as advance from the plaintiff by defendants 1 and 2 is admitted. According to the counsel for the appellants, the third defendant had approached them with an offer to sell the property to someone else at a higher price. He was accompanied by the plaintiff and the husbands of defendants 1 and 2 at that time. The third defendant also offered to pay them an amount of Rs.1 lakh, if a power of attorney authorising him to sell the property were executed in his favour. Accordingly, on 27.7.1992, defendants 1 and 2 executed a power of attorney in favour of the third defendant, received an amount of Rs.1 lakh from him and out of the said amount, returned the amount of Rs.50,000/- that they had received from the plaintiff. According to them, the plaintiff thereupon returned the original agreement for sale, that was with him, which is produced by them and marked as Ext.B1. The plaintiff has produced only a notarised copy thereof, which is Ext.A1. Since the original agreement was returned to them, defendants 1 and 2 did not consider it necessary to obtain a A.S.No.47 of 1997 10 receipt from the plaintiff, it is contended. Thereafter, on the strength of the power of attorney, the third defendant entered into an agreement with one Sukumaran and later on, sold the property also to him. 13. The case of defendants 1 and 2 is therefore a plea of discharge, the duty of proving which is entirely on them. According to the counsel for the appellants, there is sufficient evidence available in the case to prove that the amount of Rs.50,000/- had been returned to the plaintiff by defendants 1 and 2. In support of his submission, the counsel for the appellants points out that Ext.B1 is the original of the agreement entered into between the plaintiff and defendants 1 and 2. The fact that the same is produced by defendants 1 and 2 clearly proves that the amount of Rs.50,000/- had been returned. Secondly, ignoring the currency of the agreement itself, a power of attorney has admittedly been executed in favour of the third defendant by defendants 1 and 2 authorising him to sell the property. Since the power of attorney was executed with the knowledge of the plaintiff, it is a clear indication that the amount of Rs.50,000/- had been returned to him. The counsel for the A.S.No.47 of 1997 11 appellant has drawn my attention to certain additional documents produced by him at the appellate stage, as per a memo dated 24.7.2008. The additional documents are attested photo copies of the pages of the pension book, the savings bank ledger and relevant pages of the savings account of the third appellant. The said documents are produced for the purpose of showing that the third defendant was possessed of sufficient funds. It is pointed out that there is also an entry in the extract of the savings account/ledger showing payment of an amount of Rs.80,000/- to one Joseph who is alleged to be the husband of the second defendant. The entry relied on is of the year 1992. It is to be noted that even if the documents produced are received in evidence, they do not improve the case of defendants 1 and 2 in any manner. At best, the documents can only prove that the third defendant was possessed of sufficient funds to make the payment of Rs.1 lakh claimed to have been made to defendants 1 and 2. The entry relied on by the counsel for the appellants, in the extract of the savings account of the third defendant shows that an amount of Rs.80,000/- was paid to one A.L.Joy. The husband of the A.S.No.47 of 1997 12 second defendant is Joseph. Therefore, it appears that they are two different persons. Further, the amount alleged to have been given to the first and second defendants is Rs.1 lakh. Therefore, there is difference in the amount also. 14. A reading of Ext.B1 shows that receipt of the advance amount of Rs.50,000/- is clearly made mention of in the said document. If the amount had actually been paid, it is unlikely that the parties would have parted with the said amount without obtaining any documentary proof. There is no reason why at least an endorsement on the back of the agreement could not have been obtained. Nothing turns on the fact that the agreement was produced from the custody of defendants 1 and 2, because according to the deposition of the plaintiff as PW1, the agreement was always in the custody of the third defendant who is his eldest brother. Further, there are material contradictions in the testimonies of DW's 1 and 2 regarding the details of payment of the amount of Rs.1 lakh. According to DW1, at the time of execution of the power of attorney, the third defendant had paid an amount of Rs.1 lakh. He deposes that on July 27th, after executing the power of attorney, the advance A.S.No.47 of 1997 13 amount of Rs.50,000/- was returned to the plaintiffs. The amount was returned, according to him, at the house of the first defendant. It was at about 3.30 p.m. and the plaintiff, the defendants, himself, a broker and Shanmughom were present. The reference to Shanmugham could probably be to the third defendant also. According to the third defendant who is examined as DW2, he had paid the amount of Rs.1 lakh on 27.7.1992 at the Registrar's Office. At that time, broker, defendants 1 and 2 and their husbands were also present. The power of attorney alleged to have been executed in favour of the third defendant has not been produced. The broker who is alleged to have been present is not examined. The details supplied at the time of evidence are not seen pleaded in the written statement. 15. As already noted above, the conduct of the third defendant appears to be quite unnatural. Though he claimed to be acting in the interests of the plaintiff and though he claims to have saved the plaintiff from the forfeiture clause in Ext.B1, it is clear that he is hand in glove with defendants 1 and 2. Any how, there is nothing on record to show that the plaintiff has A.S.No.47 of 1997 14 received an amount of Rs.50,000/-, admittedly paid by him as advance to defendants 1 and 2. The oral evidence adduced in proof of the plea of discharge is insufficient to support a conclusion that the amount had actually been paid by defendants 1 and 2, as contended. Therefore, the court below was right in finding that there is no proof in support of the plea of discharge put forward by defendants 1 and 2. In the above state of evidence, it has to be held that the judgment and decree of the court below are justified in the facts and circumstances of the case. For the above reasons, the judgment and decree of the court below are confirmed. The appeal fails and is dismissed. No costs. K.SURENDRA MOHAN Judge css/ A.S.No.47 of 1997 15 K.SURENDRA MOHAN JUDGE --------------------------------------- AS.No.47 of 1997 --------------------------------------- JUDGMENT 14.7.2009