IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 RSA.No. 415 of 2010(G) --------------------------------- [AS.NO.3/2007 OF PRL.SUB COURT, THALASSERY, OS.NO.314/2000 OF MUNSIFF'S COURT, KUTHUPARAMBA] .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------------- KUNHIMPIDUKKA NARAYANAN, SON OF DAMODARAN, AGRICULTURIST, PARIKKALAM DESOM, NUCHIYAD AMSOM, POST PARIKKALAM. BY ADVS. SRI.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ PANTHIRUPURAYIL JAMES.P. THOMAS, SON OF THOMAS, PLANTER, ARCHANA BHAVAN, POST KUTHUPARAMBA, KANNUR. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.415 of 2010-G ------------------------------------- Dated 18th May 2010 Judgment Aggrieved by the concurrent findings against him in a suit for money, the plaintiff before the Courts below has come up in this Second Appeal. 2. The suit was one for recovery of money. It is an admitted case of the parties that there was an agreement for sale of the property between the parties. The price agreed to was Rs.47,500/- per acre and the total consideration was Rs.2,37,500/-. The plaintiff had paid Rs.37,500/-, consisting of Rs.25,000/- paid on 17.09.1997 and another amount of Rs.12,500/- paid later. Payment of these amounts was not disputed by the defendant. It appears that the plaintiff rescinded the contract and thereafter, filed the suit for return of the advance amount paid by him with interest and also Rs.10,000/- towards damages suffered by him. His case was that the RSA 415/10 2 defendant had no title over the property and therefore, the defendant could not have performed his part of the contract. 3. The defendant resisted the suit, by pointing out that there was no breach of contract on his part. He submitted that it was untrue to say that he had no title over the property. It was also pointed out that the defendant had issued a notice to the plaintiff, calling upon him to perform his part of the contract. As the plaintiff was unable to do so, he, in order to defeat the right of the defendant, rescinded the contract and he laid the suit for recovery of the advance amount paid by him. It was also contended by him that at any rate, no damages could have been claimed by the plaintiff since he was not in possession of the property. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the depositions of PWs 1 and 2, DWs 1 to 3 and Exts.A1 to A5, X1 and C1 Commissioner's report. The Trial Court, on an evaluation RSA 415/10 3 of the evidence, found that the claim set up by the plaintiff is true and decreed the suit in terms of the reliefs sought for in the plaint. The defendant took up the matter in appeal as AS No.3/07 before the Sub Court, Thalassery. The Appellate Court, on an independent evaluation of the evidence, concurred with the judgment of the Trial Court and dismissed the appeal. Hence the Second Appeal. 5. The learned counsel for the appellant drew attention of this Court to paragraphs 11 and 12 of the Judgment of the Appellate Court and pointed out that a reading of these paragraphs would clearly show that the defendant was not at fault. It was, in fact, the plaintiff who had committed breach of the contract as he was unable to perform his part of the agreement. The learned counsel also drew the attention of this Court to the fact that the plaintiff had not been put in possession of the property and the damages claimed by him was imaginary. 6. Though the arguments may look attractive at the first blush, it can be found that they are without any RSA 415/10 4 basis whatsoever. The Trial Court has considered the question of failure on the part of the defendant to perform his part of the contract. It is seen that the Lower Court has found that there was a condition in Ext.A1 agreement, which is the agreement for sale, that the property is to be measured at the expense of the defendant and the sale deed was to be executed in favour of the plaintiff or persons nominated by him without any encumbrances. It also found that inspite of repeated attempts made by the plaintiff to make the measurements, he was not successful in doing so, due to the non co-operation of the defendant. It is also seen that the Lower Court has found that going by Ext.X1 document, the property was encumbered. This fact was also concealed from the plaintiff by the defendant. The Commissioner's report says that the property is the portion of a vested forest. The Trial Court has observed that since the defendant has not filed any objection to the Commissioner's report, the report has to be accepted. RSA 415/10 5 7. The payment of Rs.37,500/- by the plaintiff was admitted by the defendant. 8. The Trial Court, on an evaluation of the evidence, found that the defendant was not in a position to comply with the terms of the agreement and that the plaintiff was justified in rescinding the contract. The Trial Court also considered the question regarding the claim for damages and found that the plaintiff is entitled to the same. As already stated, in appeal, the Appellate Court also found that the findings of the Trial Court are justified. Both the Courts have considered the issue regarding claim for damages independently and have come to the conclusion that the plaintiff, in the circumstances, is entitled to damages. There was a contention taken before the Trial Court that no damages could have been claimed by the plaintiff whatsoever, since he was not in possession of the property. The plaintiff contended that had he obtained possession of the property, he could have cultivated the same and derived Rs.10,000/-. It is significant to notice that RSA 415/10 6 both the courts below were impressed by the case put forward by the plaintiff. It is essentially a question of fact. Both the Courts have concurrently found that it was the defendant, who has committed breach of contract and not the plaintiff and so, the plaintiff was justified in rescinding the contract. There is no substantial question of law raised in this Second Appeal and the decisions of the Court below are purely based on evidence on record. There is no merit in this Second Appeal and it is accordingly dismissed in limine. P.BHAVADASAN, JUDGE sta RSA 415/10 7