IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 AS.No. 207 of 1998(B) -------------------- (AGAINST THE JUDGMENT AND DECREE DATED 29.7.1997 IN O.S.NO.78 OF 1994 OF SUB COURT, PAYYANNUR.) APPELLANT/PLAINTIFF: ------------------------- MURIKANCHERI DEVAN, S/O.KRISHNAN BY MUKTHIAR HOLDER VALAYAM VEETTIL MUNDAYADAN ANITHA, D/O.BABU AND W/O. PLAINTIFF, NO OCCUPATION, RESIDING AT KOLACHERY AMSOM, PERUMACHERY DESOM BY ADV. MR.P.T.ANTONY MR.V.RAJAGOPAL RESPONDENT/DEFENDANT: ----------------------------- CHENGUNNI ODAYOTH PARUKKUTTIAMMA, W/O.KUNHAPPA NAIR ADV. SRI.M.V.AMARESAN FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- A.S.No.207 of 1998 - B --------------------------------- Dated this the 24th day of March, 2010 J U D G M E N T The plaintiff in O.S.No.78 of 1994 on the file of the Sub Court, Payyannur, is the appellant. Suit is filed for return of money paid as advance amount. The court below dismissed the suit with costs. Aggrieved by the same the plaintiff has preferred the appeal. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff and defendant are close relatives. The defendant had executed a sale agreement on 23.3.1991 in favour of the plaintiff whereby the defendant agreed to sell the property comprised in R.S.No.15/2 of Kolacheri amsom Perumcheri desom owned and possessed by her. Ext.A2 is the agreement. The consideration fixed is Rs.875/- per cent. The total extent agreed to be sold is 72 cents. On the date of Ext.A2 agreement the plaintiff paid advance amount of Rs.12,000/- to the defendant. The parties agreed that the sale deed will be registered within six months from the date of agreement on payment of balance sale consideration. It is the case of the plaintiff that he approached the defendant on several occasions to get the sale deed A.S.No.207 of 1998 - B 2 registered, but, the defendant was avoiding the performance of the contract by some reason or other. Therefore the plaintiff intimated the defendant that he is not insisting for the specific performance of the agreement for sale if the advance amount with interest thereon is repaid to him. Subsequently, the defendant alienated the property in favour of a third person and it is alleged that the said act of the defendant caused damages, hardship and financial loss to the plaintiff. Therefore, the plaintiff filed the present suit seeking to realise the advance amount of Rs.12,000/- with interest and Rs.10,000/- as damages for the hardship and loss caused by the defendant to the plaintiff. The suit was filed for realisation of Rs.26,160/-. 3. In the written statement the defendant denied the averments in the plaint. The execution of Ext.A2 agreement, receipt of Rs.12,000/- as advance and contents of Ext.A2 are admitted. The defendant contended that the plaintiff has not taken any steps to get the sale deed executed; he failed to perform his part of contract even after the expiry of the period specified in the agreement; the defendant was always ready and willing to perform her part of contract and ready to execute the sale deed in favour of the plaintiff. It is also contended that the A.S.No.207 of 1998 - B 3 plaintiff informed the defendant that he is prepared to purchase the property only at the rate of Rs.500/- per cent and that since the plaintiff failed to perform his part of contract, the defendant is compelled to assign the property to a third person for a lesser consideration and therefore she sustained Rs.25,000/- as loss. 4. The plaintiff is working in a Gulf country. At the time of execution of the agreement and during the subsequent periods as well, the plaintiff was in abroad. His wife is the power of attorney holder. She was examined as PW1. One of the witnesses to Ext.A2 agreement was examined as PW2. Defendant was examined as DW1. The plaintiff produced Exts.A1 to A6 and on the side of the defendant Exts.B1 & B2 are marked. 5. The trial court after appreciating the oral and documentary evidence held that the plaintiff has committed breach of contract, and therefore he is not entitled to get back the advance amount and damages claimed in the suit. 6. Ext.A2 is the agreement dated 23.3.1991 admittedly, executed by the defendant in favour of the plaintiff. The defendant agreed to sell 72 cents of land at the rate of Rs.875/- per cent. On the date of Ext.A2 agreement, the defendant received Rs.12,000/- from the plaintiff as advance amount. It is A.S.No.207 of 1998 - B 4 stipulated in Ext.A2 agreement that the balance purchase price will be paid at the time of registration of the sale deed within six months. The plaintiff’s wife was examined on behalf of the plaintiff. She testified before the court that her husband was ever ready and willing to perform his part of contract and for that he send money to her for making payments within the time fixed by the parties. But, the execution of the sale deed was postponed originally by the defendant stating that a partition suit, namely, O.S.No.41 of 1991, between his family members is pending before the 1st Additional Sub Court, Thalassery and that, sale deed can be executed only after disposal of the said suit. She also testified that at the time when she went along with PW2 she carried the balance sale consideration for making payment to the defendant. She testified that at that time her husband was in Gulf country and he had sent money for making payment. She testified that the defendant was not willing to execute the sale deed during that period. She further testified that she made enquiries regarding the pendency of the suit in the Thalassery Sub Court and she came to know that civil suit O.S.No.41 of 1991 for partition was pending at that time. After the disposal of the suit also she approached the defendant. At that time the A.S.No.207 of 1998 - B 5 defendant replied that she is not prepared to execute the sale deed unless the plaintiff pay Rs.1,500/- per cent. Ext.A6 is the certified copy of the final decree in O.S.No.41 of 1991. PW1 deposed that on enquiry, it was found that the defendant had sold the property to a third person on 30.7.1993. Admittedly, Ext.B1 is the copy of the letter sent by the plaintiff to the defendant on 19.11.1992. In Ext.B1 letter the plaintiff informed the defendant that he has no objection in selling the property to any third person provided the defendant shall pay the advance amount of Rs.12,000/- with interest plus Rs.10,000/- towards loss caused to him due to non-performance on her part of the contract. In Ext.B1 letter it is stated that during the period of contract he had mobilized the balance sale consideration by availing Rs.14,000/- dirhams as loan from a bank in Gulf and that he was compelled to pay 1400 dirham towards interest to the bank. It is also stated in Ext.B1 letter that the defendant and her husband had cheated him by not executing the sale deed in his favour and further stated that he do not propose to lodge any compliant against the defendant. The wordings in Ext.B1 letter shows that the plaintiff was convinced that the defendant is not ready and willing to execute the sale deed at any point of time A.S.No.207 of 1998 - B 6 either within the agreement period or thereafter and that he was fully convinced about his idea to sell the property to a third person. Therefore, he informed the defendant that she may alienate the property to any third person for which he has no objection, provided that he shall return the advance amount and shall also compensate the loss amount caused to him. The defendant also did not dispute the contents of the letter. But the counsel contended that the contents of the letter shows that the plaintiff is not ready and willing to purchase the property and in fact he demanded the advance amount. I cannot agree with the submissions made by the learned counsel for the defendant. In fact the testimony of PW1 read with Ext.B1 letter show that the defendant was not willing at any point of time to execute the sale deed. 7. PW2 is one of the witnesses to Ext.A2 agreement. He is a relative of both parties. He deposed before the court that he went to the defendant’s house twice during the agreement period and demanded the defendant to execute the sale deed. When the defendant was examined as DW1, she also admitted that PW2 had occasion to visit her house twice as stated by PW2. The evidence of PWs 1 & 2 read with the attendant circumstances A.S.No.207 of 1998 - B 7 proved that the plaintiff was ready and willing to purchase the property during the period of contract and offered to wait till the disposal of the partition suit as demanded by the defendant. PW1 also testified before the court that after disposal of the civil suit she again approached the defendant for execution of the sale deed. But, at that point of time also, the defendant was not prepared to execute the sale deed. 8. In Ext.B1 letter the plaintiff informed the defendant that due to the conduct of the defendant he suffered heavy loss, but, he is limiting his demand to the paid interest for the loan amount he had availed from the bank. 9. I have examined the contentions raised by the parties in the light of the evidence discussed above. According to the defendant she sold the property to a third person at the rate of Rs.500/- per cent. Rs.500/- is the amount shown in Ext.B2 sale deed. The learned counsel for the plaintiff submitted that it is the usual practice in the State that the parties never disclose the actual amount received in the document for the purpose of making reduced payment of stamp duty. In various cases the Apex Court has even taken note of the practice followed by the people. I am unable to accept the contention that the defendant A.S.No.207 of 1998 - B 8 had suffered loss. Moreover in the written statement she had stated that she suffered Rs.25,000/- because of the failure of the plaintiff to execute the sale deed within time. If she suffered loss to that extent, there is no reason why she had not preferred a counter claim in the suit. 10. The evidence tendered by the plaintiff’s witnesses, documentary evidence adduced by the plaintiff, preponderance of probabilities and attendant circumstances shows that the defendant had acted in bad faith and refused to execute the sale deed though the plaintiff had demanded execution of sale deed on more than one occasion. Moreover the dispute is between two near relatives and the plaintiff was in a Gulf country throughout the period. The facts and circumstances show that he was ever ready and willing to purchase the property after paying the balance sale consideration. Learned counsel for the respondent/defendant cited the decision reported in Janki Vashdeo v. Indus Ind Bank (2005 (2) KLT 265 SC) and submitted that PW1 who is the power of attorney holder of the plaintiff is not competent to testify the contentions of the plaintiff in court and therefore her evidence cannot be relied upon. The learned counsel also relied on the decision reported in 1999 SAR A.S.No.207 of 1998 - B 9 (civil) 431 and contended that since the plaintiff did not enter the witness box or presented himself for examination, the court shall draw an adverse presumption against him invoking Section 114 of the Evidence Act. I do not think that the decisions cited by the counsel for the respondent apply to the facts of the case. In this case, the plaintiff was in Gulf country even at the time of execution of Ext.A2 agreement and subsequent periods. Transaction was made through his wife and PW2 who is a close relative. Since the plaintiff was out of the country his wife is the competent witness to dispose for and on behalf of him. Moreover through out the proceedings it is the wife who was engaged in the dealings with the defendant. She also acted as power of attorney holder. In such circumstances, the contentions raised by the learned counsel is without substance. The reasons stated by the trial court for non-suiting the plaintiff cannot stand for the reasons I have stated in the preceding paragraphs. The learned counsel for the respondent submitted that there is no evidence in support of the claim for damages except the plaintiff's interested testimony. Relying on the decision reported in F.A.C.T Engineering Works v. Kerala Industries (2001 (3) KLT 250) the counsel submitted that no oral evidence has been A.S.No.207 of 1998 - B 10 adduced to show that the plaintiff suffered damages and there is no evidence to show the actual loss suffered by the plaintiff. The facts and circumstances I have discussed above will lead to the irresistible conclusion that the plaintiff suffered loss. The contents of Ext.B1 letter also support the case of the plaintiff. in such circumstances the plaintiff is entitled to a reasonable amount as damages. The amount of loss suffered at a moderate estimate is fixed as Rs.5,000/-. In such circumstances the claim of the plaintiff for the return of advance amount plus reasonable amount towards loss is sustainable in all respects. In the result, the judgment and decree passed by the court below are set aside. The plaintiff is allowed to realise Rs.21,160/- with interest at the rate of 9% per annum from the date of suit till the date of decree and future interest at the rate of 6% from the date of decree till realisation. Appeal is allowed with costs throughout. HARUN-UL-RASHID, JUDGE. bkn/-