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2025 DIGILAW 2626 (KER)

Rajan v. K. Subramanian, S/O. Krishnan

2025-10-07

C.PRATHEEP KUMAR

body2025
JUDGMENT : C. Pratheep Kumar, J. The 1 st defendant in O.S. No. 415/2011 on the file of the Principal Sub Court Palakkad is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court). 2. The plaintiff filed the above suit for return of advance money and for compensation. Admittedly, the plaintiffs 1 and 2 entered into an agreement for sale with defendants 1 and 2 on 24.11.2010 and agreed to purchase an extent of 1.85 acres of property belonging to the defendants for a price of Rs.14,000/- per cent. On the date of the agreement itself, a sum of Rs.5,00,000/- was paid as advance to the defendants 1 and 2. As per the agreement executed between the parties on 24.11.2010 (Exhibit A1), the period for performance of the contract was six months. According to the plaintiff, before the expiry of the period provided for the performance the defendants had to convince the extent of the property to the plaintiffs and show all the original title deeds including prior title deed, possession certificate, tax receipt and encumbrance certificate. According to the plaintiffs, after the execution of Exhibit A1 agreement, they were permitted to improve the plaint schedule property and accordingly they had spent a sum of Rs.2,00,000/- for levelling the said property. According to the plaintiffs, the defendants failed to convince the extent of the property and to show the original title deeds and hence a notice dated 12.5.2011 was issued to the defendants calling upon them to perform their part of the contract within ten days of the receipt of notice. The defendants sent a reply dated 20.5.2011 but threatened over telephone that they will not give the plaint schedule property to the plaintiffs. Apprehending that the defendants will not allow the plaintiffs to enjoy the plaint schedule property even if the sale deed is executed, the plaintiffs filed the suit for return of advance amount of Rs.5,00,000/- and compensation of Rs.2,00,000/- along with interest @12% per annum. 3. The defendants 1 and 2 filed a written statement admitting the execution of the sale agreement but contending that the sale deed could not be executed due to the default of the plaintiffs and not due to the default of the defendants. 3. The defendants 1 and 2 filed a written statement admitting the execution of the sale agreement but contending that the sale deed could not be executed due to the default of the plaintiffs and not due to the default of the defendants. They also denied the allegation in the plaint that the plaintiffs spent Rs.2,00,000/- for levelling the plaint schedule property. According to the defendants, all the documents demanded by the plaintiffs were sent along with the reply notice and in spite of that the plaintiffs were not willing to get the sale deed executed as their intention was to sell the property to others. Therefore, the defendants 1 and 2 prayed for dismissing the suit. 4. During the pendency of the suit, the defendants 1 and 2 assigned the plaint schedule property to the supplemental defendants 3 and 4 and hence they were subsequently impleaded in the suit. The trial court framed four issues. The evidence in the case consists of the oral testimonials of PWs 1 and 2, DW1 and Exhibits A 1 to A5. After evaluating the evidence on record, the trial court decreed the suit directing the defendants 1 and 2 to pay a sum of Rs.6,97,092/- along with interest @6% per annum, which includes Rs.5,00,000/- being the advance amount and Rs.1,97,092/- towards compensation. Aggrieved by the above judgment and decree of the trial court, the 1 st defendant preferred this appeal. 5. Now the points that arise for consideration are the following: 1) Whether the plaintiffs are entitled to get a decree for return of the advance amount of Rs.5,00,000/-? 2) Whether the plaintiffs are entitled to get a decree for compensation as prayed for? 3) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal? 6. Heard Sri. Jacob Sebastian, the learned counsel for the appellant/1 st defendant and Smt. Mini. V.A for the plaintiffs. 7. The points: Admittedly, the plaint schedule property having an extent of 1.85 acres belonged to defendants 1 and 2. It is also admitted that as per Exhibit A1 agreement dated 24.11.2010, the defendants agreed to sell the plaint schedule property to the plaintiffs for a price of Rs.14,000/- per cent. The period prescribed for performance in Exhibit A1 was six months. It is also admitted that as per Exhibit A1 agreement dated 24.11.2010, the defendants agreed to sell the plaint schedule property to the plaintiffs for a price of Rs.14,000/- per cent. The period prescribed for performance in Exhibit A1 was six months. As per the terms of Exhibit A1, before the expiry of the period provided in Exhibit A1, the defendants have to convince the extent of the property as well as show the original title deeds, prior title deed, land tax receipt, possession certificate and encumbrance certificate to the plaintiffs. According to the plaintiffs, the defendants failed to comply with the above pre-requisites before the execution of the sale deed. Therefore, according to the plaintiffs, it was the defendants 1 and 2, who had committed breach of contract. 8. Though in the written statement, the defendants 1 and 2 contended that they have complied the terms of Exhibit A1 and it was the plaintiffs, who were not prepared to get the sale deed executed, during the cross examination of the 1 st defendant as DW1, he admitted that at the time of entering into Exhibit A1 agreement, he did not have pattayam for the plaint schedule property and that only after the suit, he obtained pattayam. 9. On 12.5.2011, the plaintiff issued a lawyers notice to the defendants calling upon the defendants to perform Exhibit A1 contract. After receiving the said notice the defendants issued Exhibit A5 reply dated 20.5.2011 agreeing to execute the sale deed. Thereafter on 18.6.2011, the plaintiff filed the suit, claiming only return of advance amount and compensation. Since DW1 himself admitted that he obtained Pattayam for the plaint schedule property only after the present suit, the plaintiffs cannot be blamed for not seeking specific performance. 10. Relying upon the terms of Exhibit A1 sale agreement, the learned counsel for the appellant would argue that Rs.5,00,000/- mentioned in Exhibit A1 is earnest money and as such the defendants are not liable to return the same to the plaintiffs, especially because the default was on their part. In support of the above arguments, the learned counsel for the appellant has relied upon the decision of a Division Bench of this Court in Devchand Constructions (M/s) v. Union of India [ 2022 (2) KHC 125 ]. Even in the above decision, the Division Bench held in paragraph 10 as follows: “10. In support of the above arguments, the learned counsel for the appellant has relied upon the decision of a Division Bench of this Court in Devchand Constructions (M/s) v. Union of India [ 2022 (2) KHC 125 ]. Even in the above decision, the Division Bench held in paragraph 10 as follows: “10. The words 'loss or damage' in the aforesaid sections would necessarily indicate that the party who complains of breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract. That is because every breach of every contract need not necessarily result in actual loss or damage. Compensation payable under Section 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, he cannot claim compensation.” Therefore, unless the defendants prove that they sustained damage due to non-performance of a contract, they cannot forfeit the advance amount. 11. It is true that in Exhibit A5 reply notice the defendants expressed their readiness to execute the sale deed in favour of the plaintiffs. However, as I have already noted above, from the evidence of DW1, it is revealed that he obtained Pattayam for the plaint schedule property only after the present suit and as such, it cannot be held that there was breach of contract on the part of the plaintiffs. Further, the defendants have no case that they have sustained any loss due to the non-performance of Exhibit A1. Therefore, the defendants are liable to repay the advance amount of Rs.5,00,000/- they received from the plaintiffs. 12. The main argument advanced by learned counsel for the appellant is regarding the compensation awarded by the trial court in favour of the plaintiffs. According to the plaintiffs, after the execution of Exhibit A1, they were permitted to level the plaint schedule property by the defendants and accordingly they have levelled the property by filling it with earth and spent a sum of Rs.2,00,000/-. The above claim of the plaintiffs was denied by the defendants. In Exhibit A1, it is not stated that pursuant to the agreement, possession of the property was handed over to the plaintiffs. The above claim of the plaintiffs was denied by the defendants. In Exhibit A1, it is not stated that pursuant to the agreement, possession of the property was handed over to the plaintiffs. Even in the plaint, the plaintiffs have no case that pursuant to the agreement, possession of the plaint schedule property was handed over to them. Their case is that they have levelled the property with the permission of the defendants. 13. Though in the written statement the defendants have denied the above claim of the plaintiffs, during the cross examination of DW1, it is revealed that the plaintiffs levelled the plaint schedule property by filling it with earth. According to DW1, the plaintiffs have done the levelling work without their permission. Therefore, from the above admission made by DW1, it is to be presumed that the plaintiffs filled the plaint schedule property by using earth, at least with the passive consent of the defendants. 14. Though the plaintiffs claimed that they have spent a sum of Rs.2,00,000/- for levelling the plaint schedule property, there is no reliable evidence in that respect. The documents relied upon by them in that respect namely Exhibit A2 series receipts were issued by Sri Vel Earth Movers. However, nobody was examined to prove Exhibit A2 series bills. When the 1 st plaintiff was examined as PW1, during the cross examination, he deposed that he did not know the person, who had filled earth in the plaint schedule property. He also deposed that he had not maintained any accounts with respect to the amount spent in that respect. According to him, the bills were issued by the owner of the JCB and he does not even know the name of that person. In Exhibit A2 series also, the name of the person who issued the bills is not mentioned. He also deposed that he does not know the value of earth or rent of the JCB. He could not say the quantity of soil used for filling the plaint schedule property. 15. From the above admission made by PW1, it is revealed that he had no idea about the quantity of the earth used, its price or amount spent towards the rent of JCB etc. He does not even know the name of the person who issued Exhibit A2 series bills. 15. From the above admission made by PW1, it is revealed that he had no idea about the quantity of the earth used, its price or amount spent towards the rent of JCB etc. He does not even know the name of the person who issued Exhibit A2 series bills. In the above circumstances, non-examination of the person, who issued Exhibit A2 series bills is fatal to plaintiffs' case. Though plaintiffs examined PW2, an attestor to Exhibit A1, he also has not spoken about the actual amount spent by the plaintiff for levelling the plaint schedule property. The plaintiffs also have no case that they have obtained any permission from the authorities for levelling the scheduled property. 16. It was argued by learned counsel for the plaintiffs that Exhibit A2 series were marked without objection and hence it is to be presumed that those documents were proved. The law is well settled that mere marking of a document does not amount to proof of its contents. As I have already noted above, during the cross examination of PW1, he admitted that he does not even know the name of the person who issued Exhibit A2 series, the amount paid for earth and rent paid for JCB. In the above circumstances, I am constrained to hold that in this case, there is no reliable evidence to prove the actual amount spent by the plaintiffs for levelling the plaint schedule property. 17. In this context, it is also to be noted that the plaintiffs have no case that they have levelled the plaint schedule property at the request of the defendants. As I have already noted above, in the agreement there is no provision for handing over possession or developing the property. The intention of the plaintiffs was to sell the property to third persons. Moreover, instead of claiming the relief of specific performance, the plaintiffs have only prayed for return of advance amount and compensation. Since the plaintiffs filled the plaint schedule property using soil at their own instance and without a demand from the side of the defendants, on that ground also, the defendants are not liable to pay any compensation to the plaintiffs. Moreover, as I have already noted above, in this case there is no reliable evidence to prove the actual amount spent by the plaintiffs in the plaint schedule property. Moreover, as I have already noted above, in this case there is no reliable evidence to prove the actual amount spent by the plaintiffs in the plaint schedule property. There is no evidence to prove that the levelling was done after obtaining permission from the authorities concerned. There is also no evidence to prove that on account of the above levelling of the plaint schedule property, the defendants were actually benefited. In the above circumstances, it is to be held that the plaintiffs are not entitled to get any compensation in addition to the advance amount of Rs.5,00,000/-. Therefore, this appeal is liable to be allowed in part and the decree to the extent it awarded a sum of Rs.1,97,092/-towards compensation, is liable to be set aside. Points answered accordingly. 18. In the result, this appeal is allowed in part as follows: The impugned judgment and decree of the trial court, to the extent it awarded a sum of Rs.1,97,092/- towards compensation to the plaintiffs, is set aside. Considering the facts, the parties are directed to suffer their respective costs in this appeal. All pending interlocutory applications in the appeal shall stand dismissed.