IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 RSA.No. 159 of 2009() --------------------- AS.34/2006 of D.C. & SESSIONS COURT,KOLLAM OS.724/2002 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELANTS/APPELLANTS/DEFENDANTS --------------------------------------------------- 1. BABU PILLAI, S/O.AYYAPPAN PILLAI, RESIDING AT RAMANILAYAM, AMBOORITHITHEKKATHIL, ERAVIPURAM VILLAGE, VALATHUNGAL.P.O, KOLLAM. 2. REMANI, W/O.BABU PILLAI, RESIDING AT RAMANILAYAM, AMBOORITHITHEKKATHIL,ERAVIPURAM VILLAGE, VALATHUNGAL.P.O, KOLLAM. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------- LATHEEFA, D/O.NABEESA BEEVI,RESIDING AT POIKAYIL HOUSE,ERAVIPURAM VILLAGE, VALATHUNGAL.P.O,KOLLAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 159 of 2009 ---------------------------------------- Dated this the 8th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. 34/2006 on the file of the District Court, Kollam which arises from the judgment and decree in O.S. No. 724/2002 on the file of the Additional Munsiff's Court, Kollam. The suit is one for recovery of money. The suit was decreed and confirmed in appeal by the lower appellate court. The defendants in the suit are the appellants herein. The parties herein after referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff's case is that the defendants received Rs. 50,000/- from the plaintiff and executed an usufructuary mortgage deed for a period of 11 months. At the time of execution of the said deed, the defendants were in occupation of the plaint schedule building and they promised that they would vacate the said building and hand over the key to the plaintiff. The defendants never kept the promise and still they are occupying the said house and the property. Therefore the suit was filed for the return of 50,000/- with 18% interest. 3. The defendants resisted the suit contending that they never executed an usufructuary mortgage deed as alleged in the plaint and did not received Rs.50,000/-. It is further contended that on 22.8.2001 the defendants had executed a sale agreement in favour of the plaintiff for the R.S.A. No. 159 of 2009 -2- sale of the plaint schedule property for a total consideration of 1,50,000/- and a sum of Rs. 50,000/ was paid as advance amount by the plaintiff and the terms of agreement was fixed for 3 months. Since the plaintiff could not pay the balance consideration in time , the agreement lapsed. According to the defendants they are not liable to pay the advance amount received by them. 4. The evidence in this case consists of the oral testimonies of PWs 1 to 3,and Exts.A1 to A5 from the side of the plaintiff and the oral testimonies of DWs 1 to 3 and Exts B1 and B2 from the side of the defendants. 5. Relying on the depositions of DWs 1 to 3 , and Exts. A1 to A5 the counsel for the plaintiff argued before the trial court that the plaintiff has proved the passing of Rs. 50,000/- as consideration to the execution of the unsufructuary mortgage deed. It is observed by the trial court that Ext.A1 being a document which is compulsorily registerable, the same cannot be considered as a valid piece of evidence. The consistent case of the plaintiff is that though Ext.A1 was executed the possession of the plaint schedule property and the building was not handed over to the plaintiff . It is also observed that due to the said reason Ext.A1 document was not acted upon. At the same time the defendants contended that there is an agreement for sale and that they have received Rs. 50,000/- as advance amount vide Ext.B1 agreement. 6. After analysing Ext. B1 agreement and Ext.A5 receipt the trial R.S.A. No. 159 of 2009 -3- court held that the plaintiff has established the execution of Ext.A1 document. The trial court further observed that however in the light of the admitted case of the defendants that they have received Rs. 50,000/- as advance from the plaintiff, Ext.A5 receipt can be considered as a document evidencing the existence of the transaction. The trial court also noted that the contention of the defendants to the effect that Ext.B1 contains a clause permitting the defendants to forfeit the advance amount paid and held that that even if there is penalty clause appearing in the agreement for sale the same is unenforceable, unless the party establishes that he or she sustained actual damage on account of the failure on the part of the other party . The trial court also held that the defendants have failed to establish with convincing and cogent evidence that they have sustained any damage and therefore they are not entitled to adjust the amount towards damages. The trial court concluded that the reasons stated by the defendants for appropriating Rs. 50,000/- are not convincing and therefore applying the principle of equity justice and good conscience, It appears that the defendants shall not be allowed to have the unjust enrichment which is against the principle of equity and law. On the basis of the said findings the trial court decreed the suit permitting the plaintiff to realise Rs. 50,000/- together with interest @ 6% per annum 7. In the appeal filed by the defendants the lower appellate court also considered the very same contentions raised by the defendants. It is an admitted fact that the defendants have received Rs. 50,000/- from the R.S.A. No. 159 of 2009 -4- plaintiff and the suit amount is the amount paid by the plaintiff as advance. The lower appellate court also rightly held that the law is clear to the effect that if any amount is paid as advance that would be adjusted towards sale consideration when the sale deed is executed and if the sale falls through, it is to be returned to the vendors; but if the defendants proved that they have suffered damages due to the default on the part of the plaintiff, they can claim appropriate the amount paid as advance. The lower appellate court concluded that since there was no attempt from the the side of the defendants to prove that they have suffered any damages and the written statement also does not say that due to the conduct of the plaintiff, the defendants had suffered loss or damage, the claim of forfeiture by the defendants/appellants cannot be acceptable. 8. The findings arrived at by the courts below are purely based on facts, evidence and circumstances. I find that no grounds are made out by the defendants in this Second Appeal to invoke my jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 159 of 2009 ---------------------------- JUDGMENT 8th July , 2009