IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 AS.No. 380 of 2000(A) ---------------------------------- AS. NO.165/1999 OF THE DISTRICT COURT, PALAKKAD. OS.300/1996 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT (S): DEFENDANT ---------------------- K.S.KOCHUKUTTAN, S/O/ K.C.SUKUMARAN, RESIDING AT KUNNUKADU, THENKURISSI, AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.KRISHNA PRASAD. S RESPONDENT(S): PLAINTIFF ------------------------ 1. RAJAMANI, S/O. PAZHANIMALA, RESIDING AT KARUMAN KATTIL, PERUVEMBA VILLAGE, PALAKKAD TALUK. 2. ANANTHAKRISHNAN, S/O. KOMBA, RESIDING AT KALLAM KOLAM KALAM, PANANKUTTY, PERUVEMBA VILLAGE, PALAKKAD TALUK. R1 & R2 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE R1 & R2 BY ADVS.SMT.PRABHA R.MENON , SRI.PUSHPARAJAN KODOTH, SRI.M.KRISHNAKUMAR, SRI.K.JAYA KUMAR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.712/2002 IN AS. 380/2000 DISMISSED 31/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N.KRISHNAN,J. ========================= A.S. No.380 of 2000 ====================== Dated this the 31st day of May, 2010. JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Palakkad in O.S.No.300/1996. The suit is one for return of the advance amount and for compensation. The Court below ordered return of the amount with 12% interest and refused to grant any damages. It is against that decision the defendant in the suit has come up in appeal. 2. The brief facts necessary to dispose of the appeal are stated as follows:- It is the case of the plaintiffs that they had entered into an agreement with the defendants by Ext.A1 for purchase of approximately an extent of 3.87 acres of land with purchase price 1900 per cent and towards the same they had paid an advance amount of Rs.25,000/- on the date of agreement and another Rs.25,000/- 15 days A.S. No.380 of 2000 2 thereafter. As per the stipulations in the agreement Rs.1.5 lakhs more has to be paid and at that time the defendant was to hand over possession over the property to the plaintiffs. According to the plaintiffs the defendant did not convince them about his title nor had given them possession of the property and it is also understood that the portion of the property to be sold is a forest land and therefore he has committed breach of agreement. 3. On the other hand defendant would contend that he had not committed any breach of contract. As per stipulations in the agreement the plaintiffs were to pay Rs. 1,50,000/- before the end of Chingam and on that day the plaintiffs were to be put in possession. After paying Rs. 50,000/- the plaintiff did not pay any amount and therefore they committed breach of contract and so the defendant had issued notice regarding the same. So, the simple question to be determined is whether the plaintiffs are entitled to return of advance amount. The Court below viewed it in their favour but declined to accept there A.S. No.380 of 2000 3 contention regarding damages. 4. The learned counsel appearing for the defendant/appellant strongly contends before me that by virtue of terms of Ext.A1 it was the duty of the plaintiffs to pay Rs.1.5 lacks before 30th of Chingam 1171 and get an endorsement and thereafter to pay the balance amount at the rate of Rs.1,900/- per cent. On the other hand the plaintiffs would contend after making payment of Rs.50,000/- they wanted the defendant to convince them about his title. In the meanwhile, they approached the Village Office and from there came to know that a portion of the land is private forest and therefore they had requested the defendant to clear that also. At the out set I may like to state that two parties had entered into agreement where they did not have any subsisting right at that point of time. Admittedly, according to the defendant the property belonged to Daivani Ammal and there has been agreement between defendant and Daivani Ammal with respect to sale of property and it was on the basis of that agreement he A.S. No.380 of 2000 4 had entered into the agreement with the plaintiffs for the sale of the property. Admittedly, to start with parties have mutual confidence but at a later point of time, that is, after payment of Rs.50,000/- things did not proceed in that way. The plaintiffs wanted defendant to satisfy regarding his title. Meanwhile, they made inquiry in the Village Office and they came to know that the portion of the property had become vested in the Government as private forest. PW2 had deposed before the Court that at least a portion of the property covered by 112/1 is vested forest. One cannot say whether the present property takes in that or not in the absence of concrete evidence. The materials are there to indicate that there is a suspicion regarding the fact that it is a vested forest or not. So far as title of the property is concerned, it is submitted that the property covered by Ext.A1 has been taken on lease from Kuthiravattom family and by the father of Daivani Ammal is not proved in this case. Though the present defendant speaks so much about his readiness and willingness it is not correct. He had A.S. No.380 of 2000 5 agreed to purchase the property from Daivani Ammal at the rate of Rs.1,500/- per cent but he walks out of the agreement contending that value had come down. He would further contend that he had destroyed the agreement as well as the possession certificate relating to the property. By no stretch of imagination shall be the attitude of a prospective seller for the reason that he relies on that agreement which gives him right to deal with the property. It is equally true that the plaintiffs in the suit who also would have been cautious and careful at least should have primarily satisfied about the right of parties. They had failed to prove that they had sustained any damages for getting the same under Section 74 of the Indian Contract Act. I had meticulously scanned the evidence of PW1 and DW1. It can be seen that the defendant in this case had not satisfied the plaintiffs nor the Court regarding the title to the property which in turn will establish that there can not be readiness and willingness on his part to perform the contract. There is nothing wrong when the purchasers A.S. No.380 of 2000 6 after payment of Rs.50,000/- requesting the seller to show them the documents of title as well as clearance certificate from the forest departments for the reason that the amount involved in the transaction at that point of time is high. Therefore, I find that the learned Subordinate Judge on appreciation of materials had arrived at a proper decision regarding return of advance amount. Thus the amount which is in the possession of the defendant would have been profitably used by him especially in the background that he is a broker dealing with properties. I am not inclined to reduce the rate of interest as well. Therefore appeal fails the same is dismissed without costs. M.N.KRISHNAN,JUDGE. mns