IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 AS.No. 25 of 1996() ------------------- OS.150/1992 of SUB COURT, HOSDRUG .................... APPELLANT/DEFENDANT: ------------------------------------- NOKKARAKUNHIRAMAN, S/O. VELLACHI HINDU, AGRICULTURIST, RESIDING AT BEDIKAM, KARIYAPPU IN PARAPPA VILLAGE NOW RESIDING AT CHAMKUZHI IN THAYYANNUR VILLAGE, HOSDRUG TALUK, P.O. KALICHAN. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANA KANNAN RESPONDENT/PLAINTIFF: ---------------------------------- THEKKUNCHERI KUNNEL GEORGE, S/O. THEKKUNCHERI KUNNEL VARKEY, CHRISTIAN, AGRICULTURIST NOW RESIDING AT PODUPPU KARIVEDAKAM VILLAGE KASARAGOD TALUK. BY ADV. SRI.KODOTH SREEDHARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON 10/06/2009 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 25 of 1996 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June, 2009 JUDGMENT This appeal is filed by the defendant in O.S.No. 150 of 1992 on the file of the Sub Court, Hosdurg. The respondent is the plaintiff in that suit. O.S. No. 150 of 1992 is a suit for return of advance amount. 2. The case of the plaintiff is briefly as follows. The defendant agreed to sell his property to the plaintiff for a total sale consideration of Rs. 3 lakhs and the defendant received Rs.30,000/- from the plaintiff as advance and the defendant executed an agreement for sale on 5.6.1992. The balance of sale consideration has to be paid on or before 5.9.1992. The defendant had hypothecated the property to Hosdurg Co-operative bank for Rs.30,000/- The defendant had to pay some amount to the previous owner of the property, viz. A. Bhaskar Rao, from whom the defendant had purchased the property and the A.S.No. 25 of 1996 2 defendant had executed an agreement to that effect. This fact was suppressed by the defendant at the time of executing the agreement for sale. When the plaintiff came to know about this agreement, the plaintiff demanded back the advance of sale consideration from the defendant. But the defendant did not return the amount. Hence the suit. 3. The main contention of the defendant is briefly as follows. The defendant admitted the agreement dt.5.6.1992. As per the stipulations in the agreement, if the plaintiff failed to execute the sale deed on or before 5.9.1992, the agreement will be cancelled and the advance will not be refunded to the plaintiff. 4. Believing the plaintiff that the document will be executed as per the agreement and the balance amount will be paid, the defendant entered into another agreement with one Mathew, Pazhuthadathil to purchase 60 cents of areca garden belonging to him for a consideration of Rs.2,000/- per cent and an amount of Rs.25,000/- was paid as advance. The balance A.S.No. 25 of 1996 3 amount was agreed to be paid and the sale deed be got executed on or before 11.9.1992. On 13.7.1992, the defendant had sent a registered letter to the plaintiff, calling upon him to execute the sale deed before that stipulated date and the said letter was served to the plaintiff on 17.7.1992. In that letter it is clearly stated about the agreement with the aforesaid Mathew. Besides, the defendant made many oral requests to the plaintiff to execute the document. Since the plaintiff failed to get registered the sale deed before the agreement date, the defendant also lost Rs.25,000/- which was the advance amount given to the above said Mathew. Since the defendant was in great financial difficulties and the agreement date was over and also the plaintiff failed to execute the document, the defendant had to sell the property to one Puthenpurakkal Gopalakrishnan Nair as per document No.3028/92 of S.R.O. Rajapuram on 28.11.1992 morning itself. The plaintiff has never made any request to the defendant to return the advance amount. The plaintiff is not entitled to get any relief. The suit may be dismissed with costs. A.S.No. 25 of 1996 4 5. In the Sub Court PW1 and DW1 were examined and Exts.A1, B1 series and B2 were marked. The learned Sub Judge, on considering the evidence, decreed the suit allowing the plaintiff to realise a sum of Rs.31,500/- together with interest at the rate of 10% p.a. from the date of the suit till the date of realisation with cost from the defendant. Against that judgment and decree the defendant filed this appeal. 6. Heard the learned counsel for the appellant and the respondent. 7. The learned counsel for the appellant submitted that the plaintiff has committed breach of Ext.A1 agreement for sale and therefore the plaintiff is not entitled to get back the advance amount. There is no dispute that Ext.A1 is the agreement for sale dt.5.6.1992 executed by the defendant in favour of the plaintiff agreeing to sell his property to the plaintiff for a total sale consideration of Rs. 2 Lakhs and the defendant received Rs.30,000/- as advance. A.S.No. 25 of 1996 5 8. As per the stipulations contained in ext.A1, the balance of sale consideration of Rs.1,70,000/- is to be paid to the defendant and the Sale Deed is to be executed on or before 5.9.1992. Ext.B1 is the copy of the letter written by the defendant to the plaintiff on 13.7.1992 stating that the defendant intends to purchase another property and therefore the plaintiff should get the Sale Deed executed after paying the balance sale consideration before the date stipulated in the agreement as early as possible. Ext.B1(a) is the postal receipt and Ext.B1(b) is the postal acknowledgment, which shows that the plaintiff received the original of Ext.B1 letter on 17.7.1992. Ext.B2 is copy of the Sale Deed dt.27.11.1992 executed by the defendant in favour of Gapalakrishnan Nair. 9. The defendant contends that as the plaintiff did not comply with his request to pay the balance sale consideration and get the Sale Deed executed, he could not purchase another property from one Mathew, with whom he had entered into an agreement on 21.6.1992 and as such the defendant lost A.S.No. 25 of 1996 6 Rs.25,000/- which he had paid to Mathew as advance. As per Ext.A1 agreement for sale, the plaintiff had time till 5.9.1992 and there is no clause in Ext.A1 agreement to pay the balance of sale consideration before that date. 10. The alleged agreement for sale with Mathew dt.21.6.1992 is not produced by the defendant to prove that he has lost Rs.25,000/- as contended by him. DW1 admitted that he did not hand over the original document of title to the plaintiff for preparing the Sale Deed in favour of the plaintiff. In Ext.A1 agreement for sale it is mentioned that the original title deeds are pledged with the bank. Since the defendant had not handed over the original title deeds for preparing the Sale Deed in favour of the plaintiff as stipulated in Ext.A1, it cannot be said that the plaintiff has committed breach of Ext.A1 agreement for sale. Since the defendant had executed Sale Deed No. 3028/92 in favour of one Gopalakrishnan Nair in respect of the property covered by Ext.A1 agreement for sale, it is not possible for the defendant to execute the Sale Deed in favour of the plaintiff as A.S.No. 25 of 1996 7 per the stipulations contained in Ext.A1. Therefore, the defendant is bound to return the advance amount received by him from the plaintiff. Hence I find that the learned Sub Judge is perfectly justified in decreeing the suit. 11. The appeal is therefore dismissed. The judgment and decree in O.S.No. 150 of 1992 on the file of the Sub Court, Hosdurg is confirmed. The parties are directed to suffer their respective cost in the appeal. (M.L. JOSEPH FRANCIS) Judge tm