IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 RFA.No. 786 of 2010(A) --------------------- OS.19/2007 of SUB COURT,THODUPUZHA .................... APPELLANT (S):DEFENDANT:- ------------------------------------------ VARGHESE, AGED 57 YEARS, SON OF VARKEY, PRESENTLY RESIDING AT PUTHAYATHU HOUSE, THAIKATTU KARA.P.O., MUTTOM, ALUVA-683 106. BY ADV. SRI.LEGY ABRAHAM SMT.V.V.RISANI RESPONDENT(S): PLAINTIFF:- ----------------------------------------- MARTIN PAUL, AGED 46 YEARS, SON OF PAILY, THURUTHIKKATTU HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.RAINGE KODUVATH SRI.JOY C. PAUL THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- R.F.A.No.786 of 2010-A ----------------------------------------- Dated, this the 17th day of October, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the defendant in a suit for return of advance money. The suit has been decreed by the court below directing the appellant to pay a sum of Rs.10 lakhs with future interest at 12% per annum from the date of the suit till the date of realisation. 2. We heard the learned counsel for the appellant and learned counsel for the respondent. 3. We are not persuaded to interfere with the direction to return the advance as such. This is a case where the court below has found that the appellant failed to establish that he has got marketable title over the property covered by the agreement, and that the said property is identifiable. It was also found that there was no evidence to show that the appellant had suffered any loss because of non execution of the sale deed in favour of the respondent/plaintiff. It was found that the plaintiff has not committed any breach of contract and it was the appellant who RFA No.786/2010 -2- failed to perform his part of the contract. It was accordingly that the plaintiff was found entitled to recover the amount. However, we feel that the court below ought not have granted interest at the rate of 12%. We would think that interest of justice would be subserved if the appellant is directed to return Rs.10 lakhs with interest at 6% from the date of the suit till the date of realisation with cost. Accordingly, the appeal is partly allowed and we modify the judgment of the court below. There will be a decree against the appellant to pay a sum of Rs.10 lakhs with interest at the rate of 6% from the date of the suit till the date of realisation with cost. The parties will bear their respective costs in this appeal. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS