Allowed

Kizhakke Edavalathukandy Assankutty v. Charakkoth Hamsa and Others

Kerala HC13 Oct 2017RFA/145/2007

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a regular first appeal challenging a decree for specific performance after parties entered into a settlement agreement withdrawing the specific performance claim upon receipt of Rs. 3 lakhs. The impugned decree was set aside as settled out of court.

What did the court decide?

Appeal allowed; impugned decree and judgment set aside; matter dismissed as settled out of court; refund of court fee to appellants.

Kizhakke Edavalathukandy Assankutty Vs… — Contract and Commercial Disputes | Kerala HC (2017)

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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.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939

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RFA.No. 145 of 2007 ( C)

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AGAINST THE ORDER/JUDGMENT IN OS 58/2005 of SUB COURT, KOYILANDY

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APPELLANT(S)/5TH & 6TH DEFENDANT:

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KIZHAKKE EDAVLATHUKANDY ASSANKUTY,

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S/O AMMTH, AGED 56 YEARS, BUSINESS RESIDING AT, PUTTANGAL MEETHAL, NOCHAD AMSOM, VELLIYOOR DESAM,, KOYILANDY TALUK.

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VADAKKETATHUKADY MARIYAM, W/O ASSANKUTTY

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AGED 45 YEARS, SWASTHAM, PUTTANGAL MEETHAL,, NOCHAD AMSOM, VELLIYOOR DESOM, KOYILANDY TALUK.

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BY ADVS.SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR)

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SRI.SADER E.REAZ

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RESPONDENT(S)/PLAINTIFFS AND DEFENDANTS 1-4:

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CHERAKKOTH HAMSA, S/O MAMMY,

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AGED 46 YEARS, BUSINESS, KIZHUR AMSOM,, MELADY DESAM, KOYILANDY TALUK.

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MATATTHIKANDY NABEESA, W/O KUNHIMOIDEEN, AGED 45 YEARS, SWATHAM, RESIDING AT PUTTANGAL, MEETHAL, NOCHAD AMSOM, VELLIYOR DESAM,, KOYILANDY TALUK.

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MATATHIKANDY MUHAMMAD, S/O KUNHIMOIDEEN,

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AGED 26 YEARS, BUSINESS, RESIDING AT PUTTANGAL, MEETHAL, NOCHAD AMSOM, VELLIYOOR DESAM,, KOYILANDY TALUK.

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MATATHIKANDY RASINA, D/O KUNHIMOIDEEN, AGED 24 YEARS, SWASTHAM, RESIDING AT, PUTTANGAL MEETHAL,

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NOCHAD AMSOM, VELLIYOOR, DESOM, KOYILANDY TALUK.

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MATATHIKANDY RASHEED, S/O KUNHIMOIDEEN, AGED 22 YEARS, BUSINESS, RESIDING AT PUTTANGAL, MEETHAL,

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NOCHAD AMSOM, VELLIYOOR DESOM,, KOYILANDY TALUK.

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R1 BY ADV. SRI.C.P.MOHAMMED NIAS

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N. Ravindran & Devan Ramachandran, JJ.

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- - - - - - - - - - - - - - - - - - - - - -- - -

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R.F.A.No.145 of 2007

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- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13^th October, 2017

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JUDGMENT

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P.N.Ravindran, J.

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This appeal arises from the judgment delivered by the Court of the Subordinate Judge of Koyilandy on 30.9.2006 in O.S.No.58 of 2005. By the said judgment, the suit instituted by the first respondent for specific performance of Ext.A1 agreement was decreed and the defendants were directed to receive the balance sale consideration of Rs.25,000/- and execute a sale deed within two months from the date of receipt of the balance sale consideration. Defendants 5 and 6 have filed this appeal challenging the said judgment.

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When this appeal came up for consideration before us on 10.10.2017, it was brought to our notice that appellant No.1 who is the power of attorney holder of the second appellant and defendants 1 to 4 who are on the party array as respondents 2 to 5 and the plaintiff/first respondent are present in person. We thereupon interacted with them. The plaintiff stated that he has agreed to give up his claim for specific performance, that he is satisfied with the payment of the sum of Rs.3,00,000/-, that the defendants have already paid him the sum of Rs.2,75,000/- and that he has also been permitted to withdraw the sum of Rs.25,000/- deposited by the defendants in the court below. The first appellant stated that he and

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RFA 145/2007

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the other defendants have no objection in the plaintiff withdrawing the sum of Rs.25,000/- lying in court deposit. In the light of the said submission, we referred the parties to mediation.

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The parties have now entered into a settlement agreement dated 13.10.2017. It is stated therein that the first appellant has already paid to the plaintiff the sum of Rs.3,00,000/- towards full and final settlement of his claim in the suit. The settlement agreement also recites that it will be open to the plaintiff to withdraw the sum of Rs.25,000/- deposited by him pursuant to the impugned judgment towards balance sale consideration.

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In the light of the settlement agreement, this appeal is allowed, the impugned decree and judgment are set aside and the same is dismissed as settled out of court. Needless to say, the plaintiff will be entitled to withdraw the sum of Rs.25,000/- deposited by him towards the balance sale consideration in terms of the impugned judgment.

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The court fee paid on the memorandum of appeal shall be refunded to the appellants. A copy of the memorandum of settlement agreement shall be appended to this judgment.

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(P.N. Ravindran, Judge)

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(Devan Ramachandran, Judge)

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kav/

Kizhakke Edavalathukandy Assankutty v. Charakkoth Hamsa and Others

Case brief

What is this about?

What did the court decide?

Kizhakke Edavalathukandy Assankutty v. Charakkoth Hamsa and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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