Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 162 (MAD)

Padmalochini v. Mallammal

2001-02-12

S.JAGADEESAN

body2001
ORDER: The plaintiff in O.S. No.334 of 1985 on the file of the District Munsif, Pollachi is the appellant herein. She filed the suit for recovery of a sum of Rs.10,000 from the respondent herein, the advance amount paid pursuant to the sale agreement, Ex.A-1, dated 2.11.1981. It is the case of the appellant that she agreed to purchase the property for a sum of Rs.1,25,000 pursuant to the Ex.A-1 and paid advance of a sum of Rs.10,000. As the respondent herein failed to produce the original documents and satisfy her title the appellant demanded the return of the amount. As the same was refused the suit has been filed. 2. The respondent filed a written statement contesting the claim of the appellant herein stating that the appellant had committed default, and as such the advance amount has to be forfeited. The appellant is not entitled for the return of the amount as claimed. 3. After elaborate consideration of both oral as well as the documentary evidence, the trial Court had decreed the suit by its judgment and decree dated 2.4.1986. The respondent herein preferred an appeal in A.S. No.105 of 1986 on the file of the Sub Court, Udumalpet. The learned Subordinate Judge had allowed the appeal finding that the appellant herein had committed default in getting the sale deed executed and as such the advance amount paid by her is liable to be forfeited. On that ground, the respondent is not liable to return the amount. Consequently, the judgment was delivered on 30.3.1988. As against the same the present second appeal had been filed. 4. At the time of admission, the following substantial question of law was formulated: “Even assuming though not admitting that the vendee had committed the breach of contract is he liable to forfeit the entire advance paid even in the absence of proof of actual damage or loss suffered by the defendant- vendor?” 5. The learned counsel for the appellant contended that the trial Court after an elaborate discussion of both the oral and documentary evidence had found that the respondent herein is at fault and ultimately decreed the suit. The lower Appellate Court has not given any valid reason to differ from the findings of the trial Court. The learned counsel for the appellant contended that the trial Court after an elaborate discussion of both the oral and documentary evidence had found that the respondent herein is at fault and ultimately decreed the suit. The lower Appellate Court has not given any valid reason to differ from the findings of the trial Court. The lower Appellate Court mainly on the basis of the telegram issued by the respondent herein, which was filed and marked as Ex.A-2, has come to the conclusion that the respondent had discharged her part of the contract. By non-issue of any reply to Ex.A-2, the appellant herein has failed to establish that the appellant is ready and willing to perform her part of contract. The procedure followed by the Appellate Court is not correct. “Even assuming that the appellant is at fault, the question for consideration is whether the entire advance amount can be forfeited without establishing any damage or loss to the respondent?” 6. The learned counsel for the respondent, however, contended that the lower Appellate Court has found that the appellant is at fault when the respondent is ready and willing to perform her part of the contract. The finding, since based on evidence, the same need not be disturbed. Since the lower Appellate Court has found that the appellant is at fault as per the recitals in the sale agreement, Ex.A-1, the advance amount had been forfeited. Hence, no interference is called for. 7. This Court carefully considered the above contentions of both the counsels. There is no dispute that the parties have entered into an agreement of sale under Ex.A-1. The appellant herein claims that the respondent did not satisfy her title and as such she did not want to pursue the contract whereas the respondent herein contended that the property belongs to her mother, one Channammal and after her death, the respondent had succeeded to the property and enjoying the same absolutely. The appellant was also satisfied with regard to the title before ever she entered into the agreement. Hence, the plea of the appellant that the respondent did not satisfy her title cannot be accepted. When there is no sale deed or any title deed in favour of the respondent it is for the respondent to establish her title over the property and satisfy the purchaser. Hence, the plea of the appellant that the respondent did not satisfy her title cannot be accepted. When there is no sale deed or any title deed in favour of the respondent it is for the respondent to establish her title over the property and satisfy the purchaser. In fact, in the sale agreement, Ex.A-1, there is a reference to the loan obtained by the respondent from the Bank, and the loan amount has to be discharged by the appellant. There is no reference with regard to the title deeds. When without being shown, it is for the respondent to establish that the suit agreement was entered into by the parties only after satisfying the purchaser with regard to the title. The respondent did not get into the box. So far as the defendant witnesses 1 and 2 are concerned, the lower Appellate Court did not discuss anything as to what is his personal knowledge about the suit agreement and what are the terms and conditions arrived at between the parties. The lower Appellate Court did not give any reason to disbelieve or discredit the Ex.P-2, the telegram issued by the appellant herein to the respondent. Even in the Ex.A-2, the appellant had issued notice to the respondent. So far as the telegram is concerned, the respondent did not send any reply. This conduct of the respondent had been overlooked by the lower Appellate Court. Pursuant to Ex.A-2, the lower Appellate Court found that the appellant did not go to the Sub-Registrar’s Office. When it is the admitted case that the respondent did not go to the Sub-Registrar’s Office, on what basis the lower Appellate Court had come to the conclusion that the appellant herself did not go to the Sub-Registrar’s Office. Hence the reasoning given by the lower Appellate Court to disbelieve the case of the appellant cannot be sustained. 8. Above all, the clause of the forfeiture can be enforced only if the party who wants to enforce the forfeiture clause had sustained any loss or damage. In this case there is absolutely no evidence let in by the respondent herein that by virtue of the non-fulfillment of the suit agreement what loss or damage had been caused to the respondent herein. The penal clause in the sale agreement cannot be enforced in full. In this case there is absolutely no evidence let in by the respondent herein that by virtue of the non-fulfillment of the suit agreement what loss or damage had been caused to the respondent herein. The penal clause in the sale agreement cannot be enforced in full. Even if the appellant is at fault, the penal clause in the sale agreement can be enforced only to the extent of the loss sustained by the respondent herein. The lower Appellate Court has totally failed to advert to this aspect. Hence, this Court is of the view that the judgment and decree of the lower Appellate Court cannot be sustained and liable to be set-aside. 9. Accordingly, the second appeal is allowed with costs throughout.