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2017 DIGILAW 151 (KER)

Shaju Kurian v. Thankappan

2017-01-18

P.SOMARAJAN

body2017
JUDGMENT : 1. Aggrieved by the judgment and decree in A.S.Tfo.38 of “2004 dated 29.9.2007 of the Sub Court, Kattappana the plaintiff came up with this second appeal. Cross objection No. 3 of 2009 was also preferred on receipt of notice of appeal by the respondent. The dispute involved in the suit in O.S.No.318 of 2001 on-the fife of the Munsiffs Court, Kattappana is pertaining to Ext.AI contract for sale dated 22.3.2001 and the claim of the plaintiff for return of advance amount. 2. Ext.A1 contract for sale was admittedly entered into between the plaintiff and the defendant agreeing to sell an immovable property admittedly belonged to a third person one Aandamrna. The defendant had earlier entered into a contract for sale of an immovable property having a large extent of 6.250 cents with its owner Aandamrna under Ext.37 contract dated 21.3.2001 and paid an advance amount of Rs.5,000/- to the said Aandamrna by which Aandamma agreed to self 6.250 cents of property to the defendant. On the -next day, the defendant executed Ext.A1 contract for sale with the plaintiff agreeing to sell a portion of the property having an extent of 5.250 cents to the plaintiff on a sale consideration of Rs.85,000/-per cent, totalling an amount of Rs.4,42,250/-. Subsequently, the said contract was rescinded by the plaintiff by issuing Ext.A2 notice on the ground that the defendant was not having saleable interest over the property and demanded return of the advance amount but the same did not serve the purpose and hence the suit in O.S.No.318 of 2001. 3. The defendant contested the suit stating that the plaintiff is not entitled to return of the advance amount as he has suffered monetary loss on account of non-performance of Ext.A1 contract for safe and that he was forced to purchase the property from Aandamma by availing loan and by selling gold ornaments under Ext.B1 sale deed dated 16.7.2001. Ext.A2 notice was issued subsequently on 17.8.2001 fully knowing that the defendant had purchased the property from its lawful owner Aandamma as per Ext.B7 contract for sale. A counter claim was also raised for recovery of an amount of Rs.68,940/-, but the claim was limited to Rs.25,000/- being the loss and damages sustained by the defendant on account of non-performance of Ext.A1 contract for safe. 4. A counter claim was also raised for recovery of an amount of Rs.68,940/-, but the claim was limited to Rs.25,000/- being the loss and damages sustained by the defendant on account of non-performance of Ext.A1 contract for safe. 4. The trial court, on hearing both the parties and on consideration of the pleadings and evidence, decreed the suit in O.S.No.318 of 2001 granting the relief of recovery of advance amount of Rs.25,000/- to the plaintiff and dismissing the counter claim by its judgment dated 14.8.2005 against which A.S.No.38 of 2004 was preferred by the defendant before the Sub Court, Kattappana. The first appellate court, on hearing both the parties, confirmed the dismissal of the counter claim, but set aside the decree granted to the plaintiff for recovery of advance amount by allowing the appeal in part as per its decree and judgment dated 19.8.2007, against which this second appeal and cross objection were filed by the respective plaintiff and the defendant. 5. Heard the learned counsels Sri. Naveen Thomas for the appellant and Sri. Grashious Kuriakose for the respondent, 6. It is submitted by the learned counsel for the appellant that the lower court has virtually passed an inconsistent decree. The suit was filed for return of the advance amount. The effect of forfeiture clause, if any, in the contract for safe pertaining to the advance amount unless quantified by mutual agreement would operate to the extent of actual damages sustained. The parties are governed by Section 73 of the Contract Act and the advance amount, if any, received is liable to be returned in the absence of evidence showing the actual damage suffered by the other party due to non-performance of the contract by the plaintiff or due to its rescission. Both the trial court and the appellate court found that there is no evidence to show the actual damages sustained by the defendant and as such the counter claim raised by the defendant claiming damages/loss sustained was rejected by both the trial court as well as the appellate court, if that be so, the forfeiture clause would not operate against the advance amount. The said legal position is overlooked by the first appellate court. The defendant is bound to return the advance amount as he has failed to adduce evidence to prove the actual damages, if any, sustained. The said legal position is overlooked by the first appellate court. The defendant is bound to return the advance amount as he has failed to adduce evidence to prove the actual damages, if any, sustained. It is so unfortunate that the lower court has passed a decree rejecting the counter claim, but at the same time refused to grant a decree in favour of the plaintiff for return of the advance amount, which are inconsistent. The plaintiff is entitled to return of the advance amount paid and hence the decree and judgment of the first appellate court setting aside the decree in favour of the plaintiff is liable to be reversed and I do so. 7. Yet another reason is also available to non-suit the defendant as the defendant had purchased the property in furtherance of Ext.B6 contract for safe under Ext.B1 safe deed not in his name but in the name of his wife. The wife of the defendant is not a party to Ext.A1 contract and is not bound by the terms and conditions and the contractual obligations arising out of Ext.A1 contract. If the intention of the defendant is to perform his part of contract under Ext.A1 contract for sale, he would have purchased the property in his name. The purchase of property in the name of his wife would show that the intention of the defendant is to defeat the lawful claim of the plaintiff under Ext.A1 contract for sale. In other words, the part to be performed by the defendant under Ext.A1 contract has been defeated -by the act of the defendant and it amounts to anticipatory breach of Ext.A1 contract by the defendant for which he is liable to compensate the plaintiff, but no such claim was raised by the plaintiff. 8. The contract was rescinded by the plaintiff only after knowing that the property was purchased by the defendant not in his name but in the name of his wife, which is a valid reason to withdraw from the contract. Hence on that count also the plaintiff is not -bound to compensate the defendant for any loss occasioned or any damages sustained by him due to the non-performance of Ext.A1 contract. He has to blame himself for committing anticipatory breach of contract and no blame can be placed on the shoulder of the plaintiff. 9. Hence on that count also the plaintiff is not -bound to compensate the defendant for any loss occasioned or any damages sustained by him due to the non-performance of Ext.A1 contract. He has to blame himself for committing anticipatory breach of contract and no blame can be placed on the shoulder of the plaintiff. 9. During the course of arguments it was submitted by the learned counsel for the respondent that though the property was purchased in the name of his wife, he can very well direct his wife to execute a sale deed in favour of the plaintiff. For purchasing the property, he had collected amounts by pledging and selling gold ornaments and by availing loan from bank. If it was not purchased in accordance with Ext.B7 contract for sale, he will lose the amount of Rs.5,000/- which was given by way of advance to the owner of the property Smt.Aandamma. Hence, pressed for adjusting of the said amount of Rs.5,000/- towards the advance amount. So, I am-of the view that an amount of Rs.5,000/- can be permitted to be adjusted towards the advance amount by granting the counter claim to that extent and I do so. In the result, the appeal in R.S.A.No.76 of 2008 is allowed granting: (a) A decree of recovery of Rs.25,000/- with interest at 6% per annum from the date of suit till Its realisation to the plaintiff from the defendant and charged upon his properties. (b) Cross objection No.3 of 2009 is also allowed in part granting a decree of recovery of Rs.5,000/- to the defendant from the plaintiff and charged upon his assets with permission to set off the same in the decretal amount granted to the plaintiff under relief (a) above. It will carry interest at 6% per annum from the date of suit till it was adjusted in the decree amount granted as relief (a) above, No order as to costs.