IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR.JUSTICE V.K.MOHANAN Friday, the 1st February, 2008/ 12th Magha, 1929. F.A.O. No. 28 of 2008 (Order in I.A.No.369 of 2008 in O.S.No.53 of 2008 of the Ist Additional Sub Court, Ernakulam dtd.18.1.2008) Appellant/Plaintiff in O.S.53/08: John.M., S/o.Mathew, aged 55 years, Meencharapadan House, Mulanthuruthy Village, Ernakulam. By Adv. Sri.P.P.Jacob. Respondent/defendant in O.S.No.53/08: M.N.Purushothaman, S/o. Madhavan, aged 49 years, Mangalodayam, Mulanthuruthy Village, Ernakulam. This F.A.O. having come up for admission on 1.2.2008, the Court on the same day delivered the following: P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- F.A.O.No. 28 of 2008 --------------------------------------------- Dated this the 1st day of February, 2008 J U D G M E N T Raman,J: This is an appeal filed against the order dismissing I.A.No.369 of 2008 in O.S.No.53 of 2008 filed by the appellant herein. The appellant/plaintiff instituted a suit as O.S.No.53 of 2008, for recovery of a sum of Rs.7,42,000/- paid as advance sale consideration under agreement for sale between the plaintiff and defendant. Out of the said sum of Rs.7,42,000/-, it is admitted that an amount of Rs.42,000/- is the interest calculated as on the date of filing of the suit on the advance amount of Rs.7 lakhs. The present I.A. (I.A.No.369 of 2008) is filed for attachment. A conditional attachment was ordered on the basis of the affidavit filed by the appellant herein (petitioner in the I.A). 2. After appearance, the defendant filed his objection. One of the contentions raised is that the time for the performance of the contract was over and that though notice was issued for specific performance on FAO No. 28 of 2008 :-2-: 10.1.2008, the present suit was instituted immediately within two days thereafter. The affidavit filed by the petitioner is false in respect of various factors. The court below found that the remedy available to the plaintiff is for specific performance of the contract and not for the return of the advance amount since, as per the notice, the period for the performance of the contract is stated to have been extended up to 15.1.2008. What is attached before notice is a movable property, namely a motor vehicle belonging to the defendant and not the suit property. On the basis of the aforesaid finding, the court below lifted the attachment. Now, the defendant is in possession of the motor vehicle. 3. We have heard the learned counsel on either side. It is admitted of no doubt that there is an agreement for sale of immovable property between the plaintiff and the defendant and an amount of Rs.7 lakhs was paid as advance. According to the appellant, it was FAO No. 28 of 2008 :-3-: found out that the property was heavily encumbered, which fact he came to know later. It is a fact that the property was encumbered at the time when the agreement was executed between the parties. It was, in such circumstances, that the appellant/plaintiff submitted that he has instituted the suit for return of the advance amount. When the matter was taken up for consideration, the learned counsel appearing for the respondent was asked as to whether he is prepared to return the advance amount with reasonable interest to which he fairly agreed to, but submitted that a reasonable time may be given to him to which course the appellant/plaintiff is agreeable. 4. In the circumstances, we record the submission of learned counsel for the respondent that an amount of Rs.7 lakhs with interest thereon at 6% from the date of the agreement till payment shall be paid to the appellant/plaintiff within a period of three months FAO No. 28 of 2008 :-4-: from today. There is a statutory charge on the immovable property proposed to be sold as per the provisions of the Transfer of Property Act. But, to safeguard the interest of the plaintiff, it is necessary to issue appropriate direction with regard to the movable property which was the subject matter of attachment. For that limited purpose, we direct that the respondent herein shall not transfer the ownership of the vehicle for a period of three months nor create further encumbrances. An intimation to this effect will be given to the R.T.A.concerned for making necessary endorsement in the R.C.Book. If the amount as directed above is paid, the condition as above will stand lifted and thereafter, it is open for the respondent to sell the vehicle. The court below will pass appropriate orders thereon directing the R.T.A. to cancel the endorsement on being satisfied that the amount as directed is paid to the appellant/plaintiff. In case the amount is not paid as FAO No. 28 of 2008 :-5-: aforesaid, the direction against the transfer will continue. The above order may be brought to the notice of the court by producing a copy of this order. The suit will stand adjourned by three months. The appeal is disposed of as above. P.R.RAMAN, Judge V.K.MOHANAN, Judge Mbs/ FAO No. 28 of 2008 :-6-: P.R.RAMAN & V.K.MOHANAN, JJ. -------------------------------------------- O.P.NO. OF 2001 ------------------------------------ J U D G M E N T FAO No. 28 of 2008 :-7-: DATED: -2007 FAO No. 28 of 2008 :-8-: