IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 AS.No. 360 of 1997(E) --------------------- OS.343/1993 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S)/PLAINTIFF: ------------------------------------- THOMAS, S/O. LUKA, VALLIKKATTIL HOUSE, KIZHAKKUMBAGOM KARA, ETTUMANOOR VILLAGE. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S)/DEFENDANTS: -------------------------------------------- 1. LUKOSE JACOB, S/O. JACOB, CHAMAKALAYIL HOUSE, KAIPUZHA KARA, KAIPUZHA, KOTTAYAM DISTRICT. 2. MARY, W/O. JACOB OF -DO- -DO- 3. JACOB OF -DO- -DO- IT IS RECORDED THAT 3RD RESPONDENT IS NOT A NECESSARY PARTY TO THE APPEAL VIDE ORDER DT. 11.12.2009. ADV. SRI.M.J.THOMAS FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON 14.01.2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 360 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2010. JUDGMENT The plaintiff, who was non-suited by the court below is the appellant. The suit was one for specific performance of a contract for sale. 2. First and third defendants are the parents of second defendant. The property involved in this suit is wet land. The way to the wet land is through the property owned by the third defendant. According to the plaintiff, the defendants entered into an agreement for sale evidencing Ext.A1 dated 4.5.1991. The price was fixed at Rs.200/- per cent and the total consideration was Rs.70,081/- as on measurement the extent of land was found to be 3 acres 50.455 cents. An amount of Rs.55,000/- was paid as advance amount. Inspite of repeated demands by the plaintiff, the defendants were not prepared to execute the sale deed. Finally a notice was issued calling upon the defendants to be present in the Sub A.S.360/97. 2 Registrar's Office on 4.6.1991. The defendants did not appear and the transaction fell through. The plaintiff therefore laid a suit for specific performance with a claim for mesne profits of Rs.6000/- per annum. 2. The defendants resisted the suit. They denied that they had entered into an agreement for sale with the plaintiff. According to them, the third defendant had to borrow a sum of Rs.60,000/- from one Mathai Sunny agreeing to repay the amount with interest at 18% interest per annum after executing a promissory note. The defendants were able to pay Rs.10,000/- towards the principal amount and it became necessary for the third defendant to borrow an additional sum of Rs.5000/- for the educational purpose of this son. He therefore approached Mathai Sunny, who took him to the plaintiff. Ext.A1 was then executed and Ext.B1 promissory note was got returned. The defendants thus explained the circumstances under which Ext.A1 came into existence. Their stand was that they had no intention to sell the A.S.360/97. 3 property and the plaintiff was fully aware of the said fact. Therefore they prayed for a dismissal of the suit. 3. The court below raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 5 and Exts.A1 to A7 marked from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Ext.B1 marked. On a consideration of the evidence in the case, the court below accepted the contentions raised by the defendants and dismissed the suit. The said judgment and decree are assailed in this appeal. 4. The suit is based on Ext.A1 agreement for sale by which the defendants agreed to assign the property to the plaintiff at a price of Rs.200/- per cent. The contention of the defendants have already been referred to. The court below chose to accept the case put forward by the defendants. 5. Learned counsel for the appellant raised only one point for consideration in this appeal. It is pointed out by the learned counsel that even assuming that he was not entitled to a A.S.360/97. 4 decree for specific performance, there was no justification for denying him the amount paid by him as advance to the defendants. Learned counsel for the appellant pointed out that in fact there was no contention taken in the written statement to the effect that the defendants were not liable to return the amount borrowed by them. Learned counsel pointed out that a decree for money paid by him atleast should have been passed by the court below. 6. It may at once be noticed that the defendants have no case that they have paid the entire money due to Mathai Sunny. Admittedly the third defendant had taken a sum of Rs.60,000/- from him and had returned only Rs.10,000/-. Then he needed to borrow an additional sum of Rs.5,000/-. It may be noticed here that for the amount borrowed from Mathai Sunny, the third defendant had executed a promissory note, namely, Ext.B1. When Mathai Sunny took the third defendant to the plaintiff, the plaintiff would have insisted for an agreement for sale to advance the A.S.360/97. 5 amount. Whatever that be, the fact remains that Ext.A1 was executed and the third defendant got returned the promissory note. 7. It is therefore clear that a sum of Rs.55,000/- was due under the transaction to the plaintiff. When Ext.B1 promissory note was got returned and an additional sum was received, it is quite evident that the subsequent discharge was to be to the plaintiff. The fact that the promissory note got returned shows that the debt stands assigned to the plaintiff. There is no case for the defendants that they have paid any amount except Rs.10,000/- to Mathai Sunny. There is no contention in the written statement at all that the defendants are not liable to return a sum of Rs.50,000/-. Of course there is a contention that they have not borrowed the sum of Rs.55,000/- from the plaintiff but only Rs.5000/- from him. But that has no relevance because it was after executing Ext.A1 agreement that Ext.B1 promissory note was got returned. That means that the debt remained unpaid. A.S.360/97. 6 8. One fails to understand the reasoning of the court below in declining to grant relief of refund of money. The court below on an elaborate consideration of the evidence found repayment of amount etc. No where in the written statement the defendants have a case that they have discharged the debt due to the plaintiff. These are all creations of the court below without any evidence in that regard. True there may not be even a prayer for return of amount by way of advance. 9. The above facts may not assume much significance in the light of the contentions taken in the written statement. Even going by the case put up by the defendants, an amount of Rs.55,000/- is due from them, and in the light of the facts and circumstances and the evidence adduced in the case, it is quite clear that they had to discharge the debt due to the plaintiff. Viewed from that angle, a decree for money ought to have followed. A.S.360/97. 7 In the result, this appeal is allowed, the judgment and decree of the lower court are set aside and a decree is passed in the following terms: The plaintiff shall be entitled to recover a sum of Rs.55,000/- with 10% interest from the date of suit till date of decree and future interest at the rate of 6% from the date of decree till realisation. The plaintiff will be entitled to his costs throughout. P. BHAVADASAN, JUDGE sb. A.S.360/97. 8 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 360 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 14.01.2010.