The High Court of Kerala dismissed this Regular Second Appeal regarding the refund of an advance amount in a suit for specific performance. Upholding lower court findings, the Court directed the appellant to pay back the advances within three months.
Granted three months' time to the appellant to pay back the advance amount of `2,45,000/- to the 1st respondents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938
RSA.NO. 1095 OF 2016 (E)
AGAINST THE JUDGMENT AND DECREE DATED 10-06-2016 IN AS NO.79/2014 OF THE ADDL. DISTRICT COURT-I, PALAKKAD
AGAINST THE JUDGMENT AND DECREE DATED 28-01-2014 IN OS NO.886/2010 OF THE PRINCIPAL SUB COURT, PALAKKAD
APPELLANT/APPELLANT/APPELLANT:
SOUDAMANI,
AGED 60 YEARS, W/O.LATE BHARATHAN, RESIDING AT EDAPPALLY , AMSOM DESOM, ERATTUKULAM P O, PALAKKAD TALUK.
BY ADVS.SRI.G.HARIHARAN
SRI.PRAVEEN.H. SMT.A.ANJANA SMT SMITHA PRAVEEN SMT.T.T.SHANIBA
RESPONDENTS/RESPONDENTS/APPELLANTS:
1. APPUKUTTAN, AGED 52 YEARS, S/O.KITTA, RESIDING AT KALLANKADU HOUSE, CHUTTIPPARA, VENGODI AMSOM DESOM, PALAKKAD TALUK-678001.
2. HARIDAS, AGED 55 YEARS, S/O.KRISHNAN, RESIDING AT POURNAMI, NEDURAKKAD, KANNADI PACHIDAYATH, KINASSERY P.O., PALAKKAD-678001.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DST
K. HARILAL, J.
= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 1095 of 2016
- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 26th day of October, 2016
J U D G M E N T
The appellant is the appellant in A.S.No.79 of
2014 on the files of the Additional District Court-I, Palakkad, and the said Appeal was filed challenging the decree and judgment passed in O.S. No.886 of 2010 of the Sub Court, Palakkad. O.S.
No.886 of 2010 was filed by the 1st respondent/plaintiff herein, seeking a decree for specific performance of an agreement.
31.01.2008, the appellant/1st defendant had entered into an agreement with the respondent/plaintiff for the sale of her property i.e., plaint schedule property, 1,800/- per cent and paid an advance amount of 85,000/- on that day. Time was fixed as six months. The 1st respondent/plaintiff had further
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paid an amount of `1,60,000/- on 06.10.2008 and the
period for performance of the agreement was extended up to 30.11.2008. But, the appellant did not turn up for registration. Even though, the 1st respondent had issued a lawyer's notice, calling upon the appellant to execute the sale deed, the appellant failed to perform her part of the contract.
defendant contented that she was ready and willing to perform her part of the contract. She has admitted that she had received `2,45,000/- as advance from the 1st respondent/plaintiff. According to her, the sale agreement could not be performed
due to the default on the part of the 1st respondent/plaintiff, despite her readiness and willingness to execute the sale deed, within the stipulated period to the 1st respondent and the 1st respondent himself defaulted performance of the
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contract and thereby, she is not entitled to get back the advance amount.
adduced oral evidence and 1st respondent produced Exts.A1 to A4. No documentary evidence was produced
by the appellant. After considering the aforesaid evidence on record, the trial court rejected the claim for specific performance; but directed the appellant to pay back the advance amount of `2,45,000/- to the 1st respondent on a finding that the appellant has failed to prove any kind of damages caused to her by the breach of contract.
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and propriety of the findings, whereby the courts
below directed the appellant to pay back the advance amount to the 1st respondent are assailed in this Regular Second Appeal.
appellant.
loss to the tune of the above said amount,
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`2,45,000/-, on account of the non-performance of
the contract. After analysing the pleadings as well as evidence, the courts below have arrived at a finding that apart from a contention that she is entitled to enforce forfeiture clause in Ext.A1 sale agreement, there are no supporting averments or proof that she has actually sustained any loss or damage. In the absence of the pleadings and evidence to prove that, by the breach of contract, the appellant has sustained damage, the courts below are justified in arriving at the aforesaid finding, whereby the appellant was directed to pay back the advance amount to the 1st respondent. A decree directing to refund the advance paid, even though specific performance of sale is declined, where there is an alternative prayer for this purpose, in the plaint, is well justified by plethora of decisions of the Apex Court. The courts below
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rendered the judgment in the correct perspective, both legally as well as factually. No question of law arises for consideration in this Regular Second Appeal.
for granting some more time to pay back the advance amount.
pay back the advance amount, to the 1st respondent and in the event of failure, the 1st respondent has right to proceed with the Execution Petition.
This Regular Second Appeal is dismissed accordingly.
Sd/-
K. HARILAL,
DST
//True copy//
P.A. To Judge
2 issues framed by the court
Whether the appellate courts were justified in directing the appellant to refund the advance amount paid by her to the plaintiffs despite the specific performance being declined.
Whether the appellant sustained any loss justifying the enforcement of the forfeiture clause to retain the advance money.
SOUDAMANI
APPUKUTTAN
HARIDAS
K. HARILAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
