IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEITH DAY OF APRIL TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.390 of 2010 Between: K.Satyanarayana … Petitioner And M.Veerraju. … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No. 390 OF 2010 ORDER:- This is a defendant’s second appeal against the decree and judgment of the Judge, Family Court-cum- Additional District Court, East Godavari at Rajahmundry in A.S.No.21 of 2008, dated 22.07.2009 whereby the appeal preferred by the appellant against the decree and judgment passed by II Additional Senior Civil Judge, Rajahmundry in O.S.No.96 of 2005, dated 19.06.2007 has been dismissed. Respondent/plaintiff filed the above suit stating that the appellant/defendant entered into an agreement of sale with him agreeing to sell the suit schedule property for a sum of Rs.11,00,000/- on 20.03.2002 and received an advance amount of Rs.2,00,000/- and the balance amount was payable at the time of registration, which can be obtained within four months from the date of agreement. Subsequently, the plaintiff also paid a sum of Rs.40,000/- and to the said effect an endorsement has been made by the defendant. In spite of repeated requests made by the plaintiff to arrange loan with the State Bank of India, Korukonda, with which the suit schedule property was in mortgage, or by transferring the loan transaction in favour of the plaintiff, there was no response from defendant. Later, the plaintiff came to know that the defendant paid the balance amount due to the bank and trying to alienate the suit schedule property to others and, therefore, he got issued a registered notice under Ex.A3 on 01.12.2004, to which a reply has been sent by the defendant on 08.12.2004 with untenable contentions. Hence, he filed the above suit for refund of the amount received by the defendant. The defendant filed written statement stating that his sons late Uma Maheswara Rao and Satya Sekhara Ganapathi Rao are individual owners of the suit schedule properties in bits to an extent of Ac.0-40 cents and Ac.0-20 cents respectively. The plaintiff knowing fully well entered into an agreement of sale with the defendant as Kartha. There was never an understanding that the defendant would arrange a loan to the plaintiff from State Bank of India, Korukonda to purchase the suit schedule property. In view of the specific term in that agreement, the defendant discharged his loan due to State Bank of India, Korukonda and obtained a clearance certificate. Plaintiff instead of performing his part of contract resiled back and committed breach of contract. The defendant had agreed to sell the land of Ac.0-60 cents only and not the rice mill. The plaintiff was not in a position to pay the balance of sale consideration and obtain the sale deed. The time is essence of the contract and it is one of the terms of the suit agreement. Hence, the plaintiff is not entitled to seek for refund of the amount paid by him and it stood forfeited on account of breach of contract, to which the plaintiff filed a rejoinder denying the contentions raised by the defendant in his written statement. To substantiate his case, the plaintiff himself examined as P.W.1 and got marked Exs.A1 to A4. On behalf of the defendant, he himself examined as D.W.1 and marked Exs.B1 to B4. Both the parties admitted about the execution of agreement of sale–Ex.A1 and also receipt of the advance amount and plaintiff established about payment of Rs.40,000/- on 06.07.2002 as per the endorsement under Ex.A2 on the reverse of the first sheet of agreement of sale. Exs.B1 and B2 sale deeds filed by the defendant proves that the sons of the defendant purchased the suit schedule property. There is no dispute that one of the sons also died and the defendant discharged the debt under Ex.B4 sale certificate issued by the Bank. The trial court after considering the agreement of sale held that in the absence of any recital in case of breach of contract by the plaintiff that he is not entitled to refund of the earnest money paid, the defendant is entitled to forfeit, and accordingly decreed the suit for refund of the amount with interest at 12% per annum and the plaintiff is entitled to create a charge over the suit schedule property till the amount is paid. Questioning the same, the defendant carried the matter in appeal. The lower appellate Court by the impugned judgment held that when the defendant agreed to sell Ac.0-60 cents of land together with rice mill leaving Ac.0-10 cents on South East corner abutting to road and the defendant also further agreed to bring all the heirs to register the sale deed as per Clause IV of the agreement of sale–Ex.A1, showing himself as karta of the family, who agreed to sell the property, but whereas in his deposition, the defendant contended that the property belongs to his sons and he is not authorized to sell the same, he could not have been entered into an agreement of sale under Ex.A1, under which he received an advance amount. In view of the same, he is entitled to refund the said amount as decreed by the trial court, creating a charge to the extent of the seller’s interest for the amount paid by the buyer. Holding so, the lower appellate Court dismissed the appeal confirming the finding recorded by the trial Court. Concurrent findings of fact recorded by the courts below on appreciation of evidence do not give raise to any question of law, much less substantial question of law to admit the second appeal. Accordingly, the second appeal is dismissed at the stage of admission. No costs. __________________ A.GOPAL REDDY, J 30th April 2010 Lmv