Abdullakoya Haji vs Rubis Tharayil

3. The appellants herein have accordingly been directed to execute the sale deed in favour of the Respondent No. 1 herein, conveying the properties described in Item Nos. 1, 2, & 5 on the balance sale consideration being deposited within the period of two months. In respect of the properties described in Item Nos. 3 & 4, the same was not included in the judgment since the said properties involved the minor’s interest. The defendants in the suit, who are the respondents in Page 2 of 29 the appeal before the High Court are therefore before this Court claiming to be aggrieved by the judgment dated 21.08.2018 passed by the High Court in RFA No.344 of 2011. Thus, on the divergent conclusion reached by the two Courts, consideration is required in this appeal.

4. For the sake of convenience and clarity the parties would be referred to in the same rank as assigned to them in the original suit wherein the respondents herein were the plaintiffs and the appellants herein were the defendants.

5. The brief facts necessary to be noted for the consideration of this appeal is that the defendants are the owners of the different item of properties which are described in the schedule to the suit subject agreement dated 26.03.2007. The total extent of property was indicated in the agreement as 12.775 acres. The plaintiffs agreed to purchase the said land at the rate of Rs. 11,350 per cent of land. In that regard the agreement dated 26.03.2007 was entered into and an advance of Rs. 75 lakhs was paid by the first plaintiff to the defendants. Page 3 of 29 The plaintiffs agreed to make a further payment of Rs. 75 lakhs on or before 15.10.2007 and before such time the actual measurement of the property was required to be made so as to determine the actual sale consideration payable and to complete the sale transaction.

6. According to the plaintiffs, they were ready and willing to pay the balance and secure completion of the transaction. In that regard the plaintiffs claim that they had also kept ready the sum of Rs. 75 lakhs which was agreed to be paid on or before 15.10.2007. The plaintiffs contend that defendants did not make available all the documents necessary for executing the sale deed. They therefore contend that the said position was accepted by the defendants and an appropriate endorsement was made at the foot of the agreement and the defendants had conceded that the amount payable on 15.10.2007 can be paid on the date of the conveyance and that the documents will be satisfied prior to this date. The outer limit for completion of the transaction was fixed as 22.01.2008. The further contention of the plaintiff is that Page 4 of 29 despite they being ready and willing, since the defendant did not come forward to complete the transaction, they were constrained to file this suit.

9. The evidence as tendered by the parties was taken note by the Trial Court and concluded that the plaintiffs were not ready and willing to perform their part of the obligation under the agreement and therefore has dismissed the suit. The High Court on the other hand has arrived at the conclusion that the plaintiffs were ready and willing to perform their part of the agreement and that they had also possessed sufficient funds to pay the remaining sale consideration and therefore decreed the suit. In that background, though on the other issues framed by the Trial Court there is no serious dispute for consideration, the issue which arises for consideration is as framed at Issue No. 2 relating to the readiness and willingness of the plaintiffs.

“I was part of the Exhibit A1 agreement. I participated in the same as a well­wisher of both the parties. I know that the plaintiffs have paid an amount of Rs. 75 Lakhs at the time of the agreement. I know that the agreement Exhibit A1 was not acted upon.” “I came to know that the agreement did not materialize as the plaintiffs did not have necessary money with them. The plaintiffs approached me and told that they are unable to purchase and so I should purchase the same. That time I inquired with the defendant. I inquired with the defendant within 3­4 days of the plaintiff intimating me.

25. In the result we pass the following, ORDER

a) The judgment dated 21.08.2018 passed in RFA No. 344/2011 is set aside and the judgment dated 30.07.2008 in OS No. 89/2008 is restored.

b) The appellant is directed to refund the amount of Rs. 75 Lakhs with interest at 9% per annum from the date of receipt till the date of repayment and the Page 28 of 29 repayment shall be made within 3 months from this date.

c) If the refund is not made within 3 months, the said sum of Rs. 75 Lakhs shall attract interest at 12% per annum from the date of receipt till the date of re­ payment.

d) There shall be a charge over the suit schedule properties until realisation of the amount by the plaintiff and such charge shall stand automatically raised if the amount is deposited in compliance of the directions contained above.

e) The appeal is allowed in the above terms, however, in the facts and circumstance the cost incurred in this appeal shall be borne by the appellant.