Dismissed

Mochamannil Aboobacker v. P.N.Kishor Kumar

Kerala HC17 Jan 2014RSA/1197/2013

Case brief

AI extract

What is this about?

This appeal challenged a decree granting the refund of Rs. 1,00,000/- advance consideration with interest. The High Court held that the decree stands, the charged property may be sold to recover it, and clarified that the deposited amount, if proved, does not attract interest.

What did the court decide?

Decree dismissed subject to release of deposited Rs. 1,00,000/- and interest direction on the balance amount.

Mochamannil Aboobacker Vs P.N.Kishor Kumar — Specific Performance | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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FRIDAY, THE 17TH DAY OF JANUARY 2014/27TH POUSHA, 1935

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RSA.No. 1197 of 2013 ()

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AGAINST THE JUDGMENT IN AS 180/2010 of ADDL. D.C. KOZHIKODE- II DATED 22-03-2013

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AGAINST THE JUDGMENT IN AS 101/2011 of ADDL. D.C. KOZHIKODE- II DATED 22-03-2013

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AGAINST THE JUDGMENT IN OS 599/2005 of PRL.M.C.,KOZHIKODE-II DATED 29-06-2010

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APPELLANT/APPELLANT IN A.S.NO. 180/2010 AND 2ND RESPONDENT

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IN A.S.NO. 101/2011/2ND DEFENDANT IN SUIT:

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-----------------------------------------------------------------NOCHAMANNIL ABOOBACKER, AGED 55 YEARS S/O. ALI, "NOCHAMANNIL" HOUSE, KUNNAMANGALAM AMSOM KONNOT DESOM, KOZHIKODE TALUK.

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BY ADVS.SRI.K.M.FIROZ

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SMT.M.SHAJNA SRI.S.KANNAN

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RESPONDENTS/RESPONDENTS IN A.S.NO. 180/2010 AND 1ST

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---------------------------------------------------------------------------------------RESPONDENT AND APPELLANT IN A.S.NO. 101/2011/PLAINTIFF AND 1ST

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DEFENDANT IN SUIT:

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1. P.N.KISHOR KUMAR, AGED 52 YEARS S/O. DR. P.MADHAVAN NAIR, "KISHORE NIVAS" KUNNAMANGALAM AMSOM, KARANTHOOR DESOM KOZHIKODE TALUK-673571.

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CONTD...2...

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RSA.No. 1197 of 2013 () 2

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42. ASHOKAN, AGED 50 YEARS S/O. RAMANKUTTY, VELUTHEDATH HOUSE, BLOCK ROAD P.O., BALUSSERRY, BALUSSERRY AMSOM AND DESOM KOILANDY TALUK-673612.

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R1 BY ADV. SRI.E.G.GORDEN R1 BY ADV. SRI.S.K.KRISHNAKUMAR

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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N.K. BALAKRISHNAN, J.

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===================

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R.S.A 1197 of 2013 ===================== Dated this the 17^th day of January, 2014.

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J U D G M E N T

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The 2^nd defendant in a suit for return of advance

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money is the appellant. 1^st defendant was the owner of the property. He agreed to sell the property to the plaintiff for a consideration of Rs. 4,90,000/- and entered into Ext. A1 agreement on 27.03.2000. On that date, Rs. 50,000/- was paid by the plaintiff to the 1^st defendant as advance consideration. Another sum of Rs. 50,000/- was paid to the 1^st defendant on 05.04.2000. The plaintiff contended that he was always ready and willing to perform his part of the contract. Later, the plaintiff came to know that the 1^st defendant transferred the plaint schedule property to the 2^nd defendant for a consideration of Rs. 6,00,000/-. The plaintiff approached the 1^st defendant for refund of the advance sum of Rs. 1,00,000/- received by the 1^st defendant. He failed to pay the amount. There is a statutory charge for part of the consideration paid by the vendee as provided

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R.S.A 1197 of 2013

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under Section 55(6)(b) of Transfer of Property Act. Hence, the suit was filed.

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After trial, the suit was decreed by the trial Court for realisation of the said amount with interest thereon at 9% per annum from the date of the suit till the date of decree and from that date at 6% per annum till realisation on the charge of the plaint schedule property. The appeal filed against the same by the 2^nd defendant was dismissed by the lower appellate Court.

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The learned counsel for the appellant has argued at length that the agreement set up by the plaintiff and the 1^st defendant is a collusive one and that the appellant is a bonafide purchaser who had spent money for purchase of the property. A transferee for consideration from the vendor is bound by the statutory charge created under section 55(6)(b) of the TP Act. The plea that the agreement is a collusive one was negatived by the Courts below. I have gone through the judgment of the Courts below. It is seen that both judgments are well reasoned and

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R.S.A 1197 of 2013 3

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well written, discussing all the points canvassed before Court. Therefore, the decree granted by the trial Court for return of advance amount of Rs. 1,00,000/- with interest as stated above, which was confirmed by the appellate Court, does not require any interference in this second appeal. No substantial question of law arises for consideration. Therefore, the decree amount can be realised by sale of the plaint schedule property, if the decree amount is not satisfied.

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The learned counsel for the appellant submits that a sum of Rs. 1,00,000/- was deposited by the appellant before the trial Court and so the decree holder can get release of that amount first and only for the balance, the suit property can be proceeded against. It is further submitted by the learned counsel for the appellant that since a sum of Rs. 1,00,000/- had already been deposited, the appellant cannot be made liable to pay interest as directed by the Courts below. There is nothing on record to show that the deposit was made with intent to discharge the

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R.S.A 1197 of 2013

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debt. It is also not clear whether any notice of deposit was given to the plaintiff.

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So far as, it relates to a sum of Rs. 1,00,000/- if

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it had actually been deposited as stated by the appellant, it will not carry interest at 6% per annum from the date of appeal judgment ie., 22.03.2013. But the other remaining amount will certainly carry interest as directed by the trial Court. If the sum of Rs. 1,00,000/- had already been deposited, the plaintiff is permitted to get release of that amount.

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In the result, this R.S.A is dismissed subject to what is stated above.

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Sd/-

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N.K. BALAKRISHNAN, JUDGE

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// TRUE COPY //

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H P.A. TO JUDGE

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Mochamannil Aboobacker v. P.N.Kishor Kumar

Case brief

What is this about?

What did the court decide?

Mochamannil Aboobacker v. P.N.Kishor Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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