IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 CRP.No. 92 of 2009() -------------------- AS.105/2005 of DISTRICT COURT,KOLLAM OS.247/2000 of MUNSIFF MAGISTRATE COURT, PARAVOOR .................... REVN. PETITIONER(S): APPELLANT/DEFENDANT --------------------- SIVA PRASAD, SHADEVA VILASAM, ELAMKULAM DESOM, KOTTAKKERATHU CHERRY, PARIPPALLY VILLAGE. BY ADV. SRI.R.KRISHNA RAJ RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------------------------------- NAZEEMUDHEEN , NEDIYAVILA VEEDU, VANCHIYOOR,ELAMKULAM, DESOM, KOTTAKKERATHU CHERRY, ALAMCODU, VILLAGE. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- C.R.P.No.92 of 2009 --------------------------------------------- Dated this the 19th day of February, 2009 ORDER The defendant in O.S.No.247/00 on the file of the court of the Munsiff Magistrate of Paravur has filed this Revision challenging the concurrent decisions of the courts below decreeing the suit for money filed by the respondent. 2. The case of the plaintiff is that the defendant agreed to sell the plaint schedule property to the plaintiff for a total consideration of Rs.3,75,000/-. Ext.A1 agreement dated 19.6.2000 was executed between them and an advance amount of Rs.10,000/- was paid to the defendant on the date of agreement. The period fixed in the agreement for completion of the transaction was two months from the date of the agreement. The plaintiff says that the transaction could not be completed since the defendant was not ready and willing to perform his part of the contract. The plaintiff came to know that the property was attached in O.S.No.328/97 pending before the Munsiff's Court, Paravur. That was not revealed by the defendant at the CRP No.92/2009 2 time of entering into the agreement. Though the plaintiff made a demand to the defendant to discharge the liability and to execute the sale deed, the defendant failed to do so. Ext.A2 notice was issued by the plaintiff to the defendant. The plaintiff came to know that the defendant had entered into another agreement to sell the same property with one Rafi. The present suit was filed for recovery of the advanced amount paid by the plaintiff to the defendant. 3. The defendant contested the suit and also preferred a counter claim. Though the defendant admitted Ext.A1 agreement, he contended that the period fixed in the agreement was over by 18.8.2000. The defendant issued notice dated 14.8.2000 asking the plaintiff to pay the balance consideration and to get the document. The plaintiff did not reply. The plaintiff was not ready and willing to perform his part of the contract. The plaintiff said that he did not have enough money to pay the balance consideration. The plaintiff requested for granting further time to pay the balance consideration. Thereafter, he issued Ext.A2 notice dated 23.8.2000 making false statements. The defendant replied by notice dated 7.9.2000. CRP No.92/2009 3 There was no default on the part of the defendant. The plaintiff is not entitled to get refund of Rs.10,000/- paid as advance. In the counter claim, the defendant claimed damages of Rs.10,000/- from the plaintiff. The agreement for sale makes a provision that if on measurement of the property, the extent is found to be less, proportionate reduction should be made in the sale consideration. There is also recital in the agreement that there is no encumbrance on the property and if any encumbrance is found, the defendant would discharge the same. 4. On consideration of the evidence of PW1, the plaintiff, the evidence of DWs 1 and 2 and the documentary evidence in the case, the trial court came to the conclusion that at the time of execution of the agreement, the property was under attachment in another suit and that the defendant did not succeed in getting the attachment lifted. It was also found that the defendant committed breach of contract. Accordingly, the trial court decreed the suit and dismissed the counter claim. 5. The appellate court also considered the oral and documentary evidence in detail and held that the breach of contract was committed by the defendant. A contention was put CRP No.92/2009 4 forward by the defendant that in order to get the attachment lifted, the plaintiff had agreed to provide the sufficient amount and the parties agreed to execute the sale deed after releasing the attachment. This contention put forward by the defendant was not proved by him by any acceptable evidence. It was admitted by the defendant in evidence that even at the time of entering into Ext.A1 agreement, the property was under attachment in another suit filed against the defendant. However, no mention was made about the same in the agreement. There is no explanation why it was not mentioned in the agreement. The defendant contended that the plaintiff was aware of the attachment. But, the court below did not accept that case put forward by the defendant, on a consideration of the evidence on record. The court below held that it is difficult to accept the oral agreement set up by the defendant. The court below also did not accept the case of the defendant that the plaintiff was aware of the attachment even at the time of entering into the agreement for sale. The court below found that the plaintiff was not duty bound to take necessary steps for getting the attachment lifted. The defendant was under an obligation to get the CRP No.92/2009 5 attachment lifted. 6. The courts below arrived at the findings on the basis of appreciation of evidence. The findings rendered by the courts below are findings of fact. The petitioner has not made out any ground to interfere with the concurrent findings of fact. The decisions of the courts below do not suffer from infirmity and there is no error of jurisdiction. The Civil Revision Petition lacks merit and it is accordingly dismissed. K.T.SANKARAN, JUDGE csl