Dismissed

Karayil Muhammad Kunhi and 2 Others v. Kariyadiyil Antony

Kerala HC24 Feb 2016RSA/745/2009

Case brief

AI extract

What is this about?

Regular Second Appeal regarding return of advance sale consideration. Court dismissed the appeal, holding that since the defendants could not establish a particular case of loss or damages, they were liable to return the uncalled advance.

What did the court decide?

Second Appeal dismissed as second Appeal dismissed as cash amount paid as advance by plaintiff shall be returned as cash amount paid as advance by plaintiff shall be returned.

Karayil Muhammad Kunhi and 2 Others Vs Kariyadiyil Antony — Specific Performance | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937

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RSA.No. 745 of 2009 E

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JUDGMENT DATED 22-01-2009 IN AS 84/2006 OF DISTRICT COURT, KASARAGOD JUDGMENT DATED 31-07-2006 IN OS 24/2005 OF SUB COURT, HOSDURG

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APPELLANT/APPELLANTS/DEFENDANTS:

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1. KARAYIL MUHAMMAD KUNHI,

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S/O.CHERAMMAL AHAMMED, R/AT KODIMARAM,

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MARAKKAPPU KADAPPURAM, P.O.OZHINHA VALAPPU,

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KANHANGAD VILLAGE, HOSDURG TALUK.

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2. PALLIPUZHA NABEESA,

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W/O.KARAYIL MUHAMMAD KUNHI, RESIDING AT DO. DO.

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3. KARAYIL SUBAIDA, D/O.BEEFATHIMA HAJJUMMA,

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RESIDING AT DO. DO.

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BY ADVS.SRI.T.SETHUMADHAVAN

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SRI.PUSHPARAJAN KODOTH

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SRI.K.JAYESH MOHANKUMAR

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SMT.VANDANA MENON

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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KARIYADIYIL ANTONY, S/O.THOMAS, RESIDING AT MELADUKKAM, P.O.KATTIPOYIL, VIA. NILESWAR, MADIKAI VILLAGE OF HOSDURG TALUK.

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BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.SHIRAZ ABDULLA

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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P.B.SURESH KUMAR, J.

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

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R.S.A.No.745 of 2009.

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

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Dated this the 24^th day of February, 2016.

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J U D G M E N T

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The defendants in a suit for realisation of money are the appellants in this second appeal.

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On 22.1.2005, the defendants agreed to sell

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three items of properties measuring 7.10 acres to the plaintiff for a sum of Rs.9,25,000/-, after receiving a sum of Rs.1,50,000/- by way of advance sale consideration. As per the terms of the agreement, the plaintiff should have paid the balance sale consideration and obtained the conveyance deed in respect of the properties from the defendants on or before 31.3.2005. The case of the plaintiff is that the agreement entered into with the defendants is vitiated by misrepresentation as to the identity of the properties agreed to be sold and consequently he demanded the defendants to

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RSA.No.745/2009.

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return the advance sale consideration. According to the plaintiff, the defendants have not complied with the demand of the plaintiff and hence the suit for realisation of the advance sale consideration. The defendants resisted the suit contending mainly that the plaintiff has committed breach of the terms of the agreement entered into between the parties and as such, the plaintiff is not entitled to claim back the advance sale consideration. The trial court decreed the suit. Though the defendants took up the matter in appeal, the appellate court confirmed the decision of the trial court. The defendants, who are aggrieved by the concurrent decisions against them, have thus come up in this second appeal.

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Ext.A1 is the agreement for sale entered into between the plaintiff and defendants. The execution of Ext.A1 agreement for sale is not in dispute. Ext.A2 is the notice issued by the plaintiff to the defendants rescinding Ext.A1 agreement and demanding to return of the advance

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RSA.No.745/2009.

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sale consideration. It is settled that in a case of this nature, the question as to whether the plaintiff has committed breach of the terms of Ext.A1 agreement is irrelevant and extraneous as the defendants are liable to return the advance sale consideration to the plaintiff even in case of breach on the part of the plaintiff, unless the defendants are able to show that they have sustained damages on account the breach of the terms of the agreement committed by the plaintiff. The fact that the transaction did not take place is not in dispute. As such, the first and foremost issue to be resolved is as to whether the defendants have established the damages, if any, sustained by them on account of the alleged breach of the terms of the agreement committed by the plaintiff. As far as the present case is concerned, the defendants have specifically pleaded in the written statement filed by them that after Ext.A1 agreement, they have entered into Ext.B2 agreement with one Abdul Rahiman for purchase of another property

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RSA.No.745/2009.

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for a sum of Rs.8,80,000/- and paid a sum of Rs.2,00,000/towards advance. According to them, since the plaintiff committed breach of the terms of the agreement, they could not purchase the property agreed to be purchased from Abdul Rahiman and consequently they sustained damages to the tune of Rs.2,00,000/-. The courts below found that the defendants have not established the said case pleaded by them. In the matter of arriving at the said conclusion, the courts below noticed that before the expiry of the term fixed for performance in Ext.A1 agreement, the plaintiff had rescinded Ext.A1 agreement by issuing Ext.A2 notice on 29.3.2005 and in Ext.B1 send in reply to Ext.A2 notice, the defendants have not mentioned anything about the alleged agreement entered into with Abdul Rahiman. The agreement entered into by the defendants with Abdul Rahiman was produced in the proceedings as Ext.B2. Ext.B2 agreement is dated 2.3.2005. Ext.B1 was the reply notice sent by the defendants to the plaintiff long thereafter

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RSA.No.745/2009.

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on 4.4.2005. The view taken by the courts below is that had there been any agreement with Abdul Rahiman as claimed by the defendants, they would have certainly mentioned about that agreement in Ext.B1 reply notice sent to Ext.A2 notice. The said view cannot be said to be unreasonable or irrational. Ext.B3 is the notice sent by the defendants to Abdul Rahiman claiming refund of the advance allegedly paid by them to Abdul Rahiman and Ext.B6 is the notice sent by Abdul Rahiman in reply to Ext.B3 notice. The courts below noticed that both Exts.B3 and B6 are communications issued after the institution of the suit. According to the courts below, since the said communications are issued during the pendency the suit, much sanctity cannot be attributed to the said documents. In other words, the finding of the courts below is that the defendants have not sustained any loss or damages on account of the failure on the part of the plaintiff in paying the balance sale consideration agreed to be paid and getting

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RSA.No.745/2009.

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the conveyance deed in respect of the properties. In the said circumstances, I do not find any reason to interfere with the decisions of the courts below. The second appeal is, accordingly, dismissed. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR,

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JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Karayil Muhammad Kunhi and 2 Others v. Kariyadiyil Antony

Case brief

What is this about?

What did the court decide?

Karayil Muhammad Kunhi and 2 Others v. Kariyadiyil Antony

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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