IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 RSA.No. 381 of 2011() --------------------- AS.65/2006 of PRINCIPAL SUB COURT,IRINJALAKUDA OS.146/2004 of ADDL.MUNSIFF COURT,IRINJALAKUDA .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- SALU @ JOSEPH SALU, S/O.MUTHUMAKKAL JOSEPH, AMABALLUR VILLAGE, PO THRISSUR DISTRICT REPRESENTED POA PAUL, S/O.MUTHUMAKKAL JOSEPH,..DO..DO... BY ADVS. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR). RESPONDENT(S): APPELLANT:DEFENDANT: -------------------------------------------------------------------- THANKAMANI, D/O.AMBIYIL KRISHNAN ACHARI, KANNANAMKUZHI PO, MAVELIKKARA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 381 OF 2011 ............................................ DATED THIS THE 28th DAY OF MARCH, 2011 JUDGMENT Plaintiff in O.S.146 of 2004 on the file of Additional Munsiff, Irinjalakkuda is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for mandatory injunction directing the respondent to surrender vacant possession of the plaint schedule property. The plaint schedule property admittedly belongs to the appellant. Appellant and the respondent entered into Ext.A1 agreement, whereunder respondent agreed to purchase and appellant agreed to assign the plaint schedule property for a consideration of Rs.9,00,000/-. Rs.1,00,000/- was paid as advance. As per the agreement, sale deed is to be executed, on or before 3.1.2004. Appellant instituted the suit contending that respondent committed breach of the contract and therefore he is liable to vacate the plaint schedule property. Respondent raised a counter claim for return of the advance amount of Rs.1,00,000/- paid under Ext.A1 contending that she was ready and willing to perform her part of RSA 381/2011 2 the contract and sale deed could not be executed for the default committed by the appellant. Appellant not pressed the suit. Respondent proceeded with a counter claim. The suit was dismissed and the counter claim was tried. 2. Learned Munsiff, on the evidence of Exts.A1 to A4, B1 to B10, X1 and X2, C1 and C1(a) and the oral evidence of PW1 and DWs 1 to 3 found that appellant committed breach of the contract. But finding that appellant sustained loss as he had to pay interest, learned Munsiff found that appellant is liable to return only the balance of Rs.62,244/- deducting the loss sustained. A decree was granted in the counter claim directing appellant to pay Rs.62,244/- with interest @ 6 % per annum. 3. Respondent challenged the judgment before the Sub Court, Irinjalakkuda contending that learned Munsiff should have granted the decree for return of the entire amount. Appellant filed a cross objection contending that the decree for return of the amount is not sustainable. Learned Sub Judge on re- appreciation of evidence, allowed the appeal and dismissed cross objection and modified the decree granted in the counter claim and directed the appellant to repay Rs.99,999/- with interest at RSA 381/2011 3 6% per annum from 3.10.2003. The appeal is filed challenging the judgment. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that first appellate court was not justified in modifying the decree and when the agreement does not provide for measuring the property, courts below should not have found that it is on account of the default committed by the appellant, sale deed could not be executed and therefore the decree granted by first appellate court is not sustainable. Learned counsel also argued that courts below wrongly applied Section 91 and 92 of Indian Evidence Act, which has no application on the facts of the case. 4. The only point for consideration in the first appeal was whether appellant committed breach of the contract or it was the respondent who committed breach of the contract and if so, whether respondent is entitled to realise the entire advance amount paid. Trial court and the first appellate court, on the evidence, found that it was the appellant who committed breach of the contract. It is a finding of fact. On going through the judgment, I find no illegality in that finding. Hence the finding of RSA 381/2011 4 fact cannot be interfered with in the second appeal. Therefore it can only be found that it was appellant who committed breach of the contract. 5. Then the only question is whether appellant is entitled to adjust the loss sustained by him, on account of the payment of interest. When courts below concurrently found that it was the appellant who committed breach of contract even if he sustained damages, it cannot be adjusted towards the advance amount. Even if it is taken that appellant is entitled to get damages from the respondent for use and occupation, as interest is payable for the advance amount received, which was not paid, there cannot be a loss as such. Hence, appellant is not entitled to adjust any amount, out of the advance amounts paid. I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk