IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 AS.No. 127 of 2001(B) ------------------------------ OS.317/1993 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANTS ----------------------------------------------- 1. AYYAPPAN NAIR, S/O. RAMAN NAIR, KIZHAKKANPURATHPUTHAN VEEDU, KANJIRAKKULAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. SARASWATHI AMMA, W/O. AYYAPPAN NAIR, KIZHAKKANPURATHPUTHAN VEEDU, KANJIRAKKULAM AMSOM, PALAKKD TALUK, PALAKKAD DISTRICT. 3. KRISHNAKUTTY, S/O. AYYAPPAN NAIR, KIZHAKKANPURATHPUTHAN VEEDU, KANJIRAKKULAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE BY ADV. SRI.K.MOHANAKANNAN RESPONDENT(S): PLAINTIFF -------------------------------------------- JAMES, S/O. PHILIP, A6/3, MALABAR CEMENTS QUARTERS, PUDUSSERI AMSOM, VALAYAR P.O., PALAKKAD TALUK. BY ADVS. SRI.V.CHITAMBARESH SRI.KRISHNA PRASAD. S THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.860/2001 IN AS. NO.127/2001 DISMISSED 23/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 127 OF 2001 = = = = = = = = = = = = = = = Dated this the 23rd day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree passed by the Subordinate Judge, Palakkad in O.S.317/93. The suit is one for return of advance amount and damages. It is the case of the plaintiff that the plaintiff and defendants have entered into an agreement for sale on 22.3.93 for purchase of 72½ cents of dry land and one acre of paddy land for a total consideration of Rs.2,75,000/- and towards the sale consideration Rs.40,000/- was paid as advance and as per the stipulation in the agreement the document has to be registered on or before 3.5.93. There is also a stipulation in the agreement that if the plaintiff commits A.S. 127 OF 2001 -2- default, is liable to pay to the defendant the amount paid as advance plus another Rs.40,000/-. According to the plaintiff, defendants have committed the breach, hence the suit. 2. On the other hand defendants would contend it was the plaintiff who had committed breach of the contract and therefore he is not entitled to any amount and as per the stipulations in the document the defendant is entitled to appropriate the amount given as advance. The trial court on an appreciation of the materials granted a decree for return of the advance amount and it is against that decision the defendants have come up in appeal. 3. Heard the learned senior counsel for the appellants as well as the young counsel for the respondent. The crux of the matter depends upon the question who has committed the breach of the A.S. 127 OF 2001 -3- contract and whether the party had sustained damages so as to claim damages over and above the advance amount paid or whether by the conduct of the plaintiff the defendants had sustained damages so as to disentitle the plaintiff to ask for return of the amount. 4. The parties certainly had not come to the court with the entire facts is quite evident. The plaintiff submits that on 2.5.93 on coming to know that there was a liability in the property approaches the defendants and ask for the documents. According to the plaintiff the defendants promise to come on 3.5.93 to the Registrar's office with the document and accordingly the plaintiff had gone there and to his dismay defendants did not come. According to him he had issued a notice regarding this which is marked as Ext.A5. Though the notice is A.S. 127 OF 2001 -4- dated 2.5.93 it is sent only on 7.5.93 and the defendants had received it only on 9.5.93 whereas Ext.A6 is a notice issued by the defendants to the plaintiff dated 4.5.93. It is therefore contended that Ext.A5 notice is only sent after the receipt of Ext.A6 notice suppressing the fact and so it is an indicator to show that it was the plaintiff who had committed the breach. Now as per the terms of the agreement the plaintiff is liable to pay balance amount and get the document registered on or before 3.5.93. As per the stipulations in the agreement defendants are bound to measure the property to find out the exact extent and if it is on the increase more amount to be paid and if it is on a lesser side reduce the amount. It is also very clearly stated that the defendants have to discharge the liability on the property A.S. 127 OF 2001 -5- on or before 3.5.93. So it is in this background we have to analyze who would have committed the breach. The defendant had admitted that there was a liability with the co- operative bank by mortgaging this property. Admittedly the defendant had not taken any steps to liquidate that loan before the crucial date 3.5.93. As observed by the Court below if there had been measurement of property and it has been recorded it would have found a place in Ext.A6 notice. It is also absent there. Therefore the two ingredients necessary to be satisfied by the defendants are not complied. It is in this background when the evidence of plaintiff is analyzed that he approached the defendants for the purpose of getting document and that the defendants fail to come to the Registrar's office receives significance. It is also to be A.S. 127 OF 2001 -6- borne in mind after all the agreement is one or sale of immovable property. The time fixed for sale of immovable property need not always be the essence of the contract. Therefore the inaction of this side or that side has resulted in the contract being broken. A person who wanted to purchase the property will purchase the property only on satisfaction regarding the correct extent of the property as well as the fact that there is no encumbrance on the property. So the positive acts were to be done by the defendants. Instead of doing the same what the defendants had done is that they have executed an agreement Ext.B1 with a third party for the purchase of another property and had paid Rs.15,000/- as advance and that transaction also did not materialize. When it is found that it is at the fault of the defendants A.S. 127 OF 2001 -7- that the contract has not gone into it has to be stated it is for them to return the advance amount. 5. So far as the damages is concerned since there is no evidence to show that on account of the non-happening of the transaction the plaintiff has suffered any damages the Court below did not rightly grant him damages as well. So what the Court has done is to direct the defendants to pay back the amount to the plaintiff for the reason it was the defendants who had committed the breach of the contract. In this case there is no unjust enrichment for the plaintiff for the reason the amount which he had advanced only is ordered to be paid back to him. Therefore from these materials I do not see any ground to interfere with the decision rendered by the trial court. Therefore the A.S. 127 OF 2001 -8- appeal lacks merits and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 127 OF 2001 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 127 OF 2001 = = = = = = = = = = = J U D G M E N T 23rd July, 2010.