IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 RFA.No. 67 of 2005(E) ---------------------------------- OS.131/1995 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/DEFENDANT --------------------------------------- SAM B.SAHAYAM, S/O. BRUSE D.SAHAYAM, CHRISTIAN, RESIDING AT XI/242, L.S.COTTAGE CHOONDUPALAKA, KATTAKADA FROM MANGATTU, LOUIS COMPOUND, ARAMADA MURI, THIRUMALA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL RESPONDENT(S): PLAINTIFF ------------------------------------------ L.R.BEENA, W/O. SATHEESHCHANDRAN, HINDU, NO.III, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADVS. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2010, ALONG WITH R.F.A. NO2.165 & 166 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.344/2005 IN RFA. NO.67/2005 DISMISSED 20/10/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... R.F.A.Nos.67,165 & 166 OF 2005 ............................................. Dated this the 20th day of October, 2010. J U D G M E N T R.F.A.No.67/2005 is preferred against the judgment and decree of the 1st Additional Sub Judge, Trivandrum in O.S.No.131/1995. R.F.A.No.165/2005 is preferred against O.S.No.173/1995 and R.F.A.No.166/2005 is preferred against O.S.No.175/1995. All these suits were for specific performance of the contract with alternative reliefs for damages and return of the amount. 2. The trial court on a consideration of the entire materials held that the plaintiffs are not entitled to specific performance of the contract, but directed the defendant to return the advance amount paid + cost of construction made by the plaintiffs in pursuance of the contract with 12% interest from the last date of agreement dated 30.9.1994 till the date of suit and at the rate of 6% thereafter. It is against those decisions, the defendant in these cases have come up in appeal. 3. Heard the learned counsel for the appellant and also : 2 : R.F.A.Nos.67,165 & 166 OF 2005 the counsel for the respondent in RFA.No.67/2005. O.S.No.131/1995 against which RFA.No.67/2005 contains the following facts: The plaintiff and defendant have entered into an agreement for sale with respect to 16 cents of land comprised in Sy.No.156/2-14 of Vilavoorkkal village on 14.12.1993 with the stipulation to pay Rs.8,300/= per cent. The period of agreement was to expire on 31.1.1994. An amount of Rs.5,000/= was paid as advance. Subsequently as the defendant could not execute the document, by virtue of the endorsement dated 29.1.1994 the period was extended and ultimately on 31.3.1994 again the period was extended up to 30.9.1994. While executing the second agreement, it was agreed upon by the defendant that the plaintiff can construct compound wall over the property to be assigned. Now the amount claimed by the plaintiff, so far as advance is concerned, is Rs.5,000/= + Rs.35,000/= as cost of construction + difference in value on account of non performance of the contract. 4. On the other hand, the defendant would contend that he has not committed the breach. A suit was filed by : 3 : R.F.A.Nos.67,165 & 166 OF 2005 one Sara George and there was an injunction by the court from executing the agreement and therefore, he was unable to execute the document. It is also contended that the plaintiff had only spent Rs.3,000/= towards construction and therefore the plaintiff is not entitled to the relief. 5. A.S.No.173/1995 against which R.F.A.No.165/2005 is filed relates to the following facts: There was an agreement between the plaintiff and the defendant for the sale of 16 cents of property comprised in Sy.No.156/2-14 of Vilavoorkkal village for a consideration of Rs.9,000/= per cent and the period was to expire on 15.2.1994 and the plaintiff has paid an amount of Rs.5,000/= as advance. On account of inability of the defendant the agreement was initially extended up to 15.4.1994 and thereafter again up to 30.9.1994. Meanwhile permission was granted to the plaintiff to construct compound wall for the property and for making other improvements. The plaintiff had spent Rs.10,000/= for construction of the compound wall. Though ultimately the plaintiff has sent a notice, the defendant had failed to perform his part of the contract, hence the suit. The defendant, on the other hand, would : 4 : R.F.A.Nos.67,165 & 166 OF 2005 contend that he had not committed the breach of contract. Therefore the plaintiff is not entitled to any relief. 6. The suit O.S.No.175/1995 against which R.F.A.No. 166/2005 is filed contains the following facts: Here also there was an agreement with respect to 15 cents of property on 14.12.1993 between the plaintiff and the defendant with stipulation to pay at the rate of Rs.5,000/= per cent and Rs.5,000/= was paid as advance. The defendant did not perform his part of the contract. Therefore there was a subsequent endorsement and an agreement whereby the term was extended up to 30.9.1994 and in pursuance to the agreement, the plaintiff has constructed basement for compound wall and also dug a well and had expended Rs.25,000/=. In spite of readiness and willingness, the defendant did not comply with the terms of the contract and hence the suit. 7. In the written statement the defendant would contend regarding execution of the agreement but would submit that he has not committed breach of the contract and it had happened only on account of the suit filed by Sara George against him. He would also contend that he is : 5 : R.F.A.Nos.67,165 & 166 OF 2005 prepared to pay the expense of Rs.15,000/= along with the advance amount of Rs.5,000/=. 8. The cases were tried jointly and PWs 1 and 2 and DW1 were examined. Exts.A1 to A18, B1, C1 and C2 were marked and the court below granted a money decree in favour of the plaintiff in all these cases. So far as specific performance of the contract is concerned, this Court need not probe into the matter for the reason that no appeal is preferred by the plaintiffs challenging refusal of specific performance of the contract. In all these cases there had been an agreement between the plaintiff and the defendant with respect to purchase of parcels of land and in all these cases Rs.5,000/= had been paid as advance and by virtue of the terms and conditions of the agreement, the plaintiff had constructed compound wall and in one case had dug a well. The court below found that the defendant was restrained from performing his part of contract by virtue of an order of injunction passed in a case filed by one Sara George. The court considered that on account of the fact that there was frustration of the contract the defendant was unable to perform his part of the contract. I am not : 6 : R.F.A.Nos.67,165 & 166 OF 2005 saying anything on the same for the reason that now the specific performance is negatived which is not challenged. The plaintiffs would contend that they are entitled to proportionate increase as damages on account of escalation of price of the property which had been declined by the trial court. That is also not the subject matter of these appeals and therefore, it also does not require consideration. 9. The learned counsel for the appellant had raised the following points before me namely: (1) since there was an offer by the defendant to pay the advance amount with some amount as damages for the construction of wall, the defendant shall not be saddled with the liability of payment of interest, (2) the agreement does not contain any specific term with respect to payment of interest and (3) if at all interest is to be paid, it has to be paid only on the excess amount which is awarded by the court other than what is offered by the defendant. 10. At the outset, I may like to point out that here is a defendant who had entered into an agreement for sale of the property with the respective plaintiffs without disclosing the fact that at an earlier point of time he had entered into an : 7 : R.F.A.Nos.67,165 & 166 OF 2005 agreement for sale with one Sara George and the said person had instituted the suit for specific performance of the contract. So the conduct of the defendant by any stretch of imagination cannot be said to be innocent. The court passed an order of injunction. Necessarily it became imperative for him to get the term of the agreement extended and it was at that time the factum of litigation and earlier agreement to sell have come into lime light. Therefore all is not well with the conduct of the defendant. 11. The plaintiffs in these cases were earnest in getting the property. They had paid the advance and at the request of the defendant had agreed to extend the term of the contract and further the defendant had permitted all these plaintiffs to have the construction of the compound wall of the property proposed to be purchased and they had invested amount for the same. It is in this background one has to find out the earnestness of the plaintiffs to get the property in their favour. Just because the defendant submits that he is prepared to pay the amount taken as advance and some damages towards construction which the plaintiffs have made, I am afraid that the same would entitle him to : 8 : R.F.A.Nos.67,165 & 166 OF 2005 contend for the position that he is not liable to pay the interest. If he had such a good motive behind him, under ordinary circumstance along with the written statement, he would have deposited the amount admitted by him. So that the court could have averted awarding interest with respect to the amount that had deposited. The plaintiffs cannot be blamed for not accepting that plea in the written statement for the reason that they had filed the suit for larger relief of specific performance of the contract. 12. Now regarding non mentioning of payment of interest in the agreement. It has to be stated that under the bonafide faith and belief they will become the owners of the property, the plaintiffs had invested the amount for the construction of the compound wall. Similarly they had parted with Rs.5,000/= each for the purpose of purchase as sale consideration. The amount of Rs.5,000/= has been retained and enjoyed by the defendant whereas the plaintiffs did not get any fruits from the said agreement. So custody of Rs.5,000/= as far as advance amount is concerned is to be repaid with interest. Similarly now a situation has arisen whereby though the compound walls : 9 : R.F.A.Nos.67,165 & 166 OF 2005 are constructed, the plaintiffs are not entitled to get the property for the reason of an order in another case. The plaintiffs are not responsible for the same. They have never contributed anything for the same. They were bonafide persons prepared to purchase the property by spending amount and they have invested the amount for the construction of the compound wall and virtually they had been thrown out of the property. They had invested their amount which had become futile and did not get any benefit from the same. It was on account of the conduct of the defendant and it was a permissive construction made by the plaintiffs and therefore, that amount also has to be reimbursed. 13. Now it has to be stated that the wall remains in tact in the property and it is only the amount that is spent with interest has to be paid back. So far as estimation of cost of the wall, I may state that it is not in a very satisfactory manner the Commissioner has assessed. But it is a fact that such a minimum amount should have been spent and therefore I feel, the court after giving necessary deduction only awarded a reasonable amount as the cost of : 10 : R.F.A.Nos.67,165 & 166 OF 2005 construction. The defendant has not filed any objection to the Commissioner's report and therefore he cannot take shelter under non availability of data. So taking into consideration these materials, I find that the court below has proceeded in the matter in the correct perspective and only had awarded reasonable amount to the plaintiffs in each case with the stipulation to pay interest at 12% from the date of agreement till the date of suit and thereafter at the rate of 6% from the date of suit till realisation. The judgment and decree of the trial court do not call for any interference and therefore, all these appeals fail and they are dismissed, but I direct the parties to bear their respective costs. M.N. KRISHNAN, JUDGE. cl : 11 : R.F.A.Nos.67,165 & 166 OF 2005