This appeal challenges a decree for the return of Rs. 8 lakhs paid as advance under a property sale agreement. The High Court dismissed the appeal, affirming the trial court's finding that the suit is not barred by limitation due to a statutory charge.
Appeal dismissed; parties to bear respective costs.
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 P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939
RFA.No. 190 of 2015 ()
AGAINST THE JUDGMENT IN OS 729/2011 of I ADDL.SUB COURT,ERNAKULAM DATED 19.8.2014
APPELLANT(S)/DEFENDANT:
SINDU V.,
WIFE OF K.G.AJAYA KUMAR, KUNNATHUVEETTIL HOUSE UZHUVA KARA, PATTANAKKADU VILLAGE, PATTANAKKADU P.O CHERTHALA.
BY ADV. SRI.V.L.SHENOY
RESPONDENT(S)/PLAINTIFF:
TREESA MATHEW
WIFE OF K.G.MATHEW, KEERAMPILLY HOUSE, KARSHAKA ROAD, VADUTHALA, CHERANELLOOR VILLAGE, VADUTHALA P.O, KOCHI-682 023.
R1 BY ADV. SRI.JIJI THOMAS R1 BY ADV. SMT.SMITHA MATHEW
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.N. Ravindran & R.Narayana Pisharadi, JJ.
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R.F.A.No.190 of 2015
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JUDGMENT
P.N.Ravindran, J.
This appeal arises from the judgment delivered by the Court of the Subordinate Judge of Ernakulam on 19.8.2014 in O.S.No.729 of 2011. By the said judgment the suit instituted by the respondent herein for realisation of the sum of Rs.8,00,000/- paid as advance pursuant to and in terms of Ext.A1 agreement dated 12.2.2008 entered into between the parties, together with interest and costs was decreed. The defendant has, aggrieved thereby, filed this appeal. The brief facts of the case are as follows:
RFA 190/2015
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Alleging that the defendant has alienated the property, the plaintiff caused Ext.A2 notice dated 3.8.2011 to be issued to the defendant wherein it was alleged that though she was ready and willing to perform her part of the contract, the defendant has alienated the plaint schedule property to a third party for a higher consideration without disclosing the subsistence of Ext.A1 agreement. By that notice, the defendant was called upon to refund the sum of Rs.8,00,000/together with interest at 12% per annum. The defendant caused Ext.B1 notice dated 19.8.2011 to be issued in reply to the plaintiff, wherein the main contention raised was that the claim is barred by limitation. The defendant also disputed the statement in Ext.A2 notice that the plaintiff was ready and willing to perform her part of the contract. The instant suit was thereupon filed on 12.8.2011 praying for a decree allowing the plaintiff to realise the sum of Rs.8,00,000/paid as advance together with interest and costs.
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in the plaint or in the lawyer's notice.
the following issues for trial:
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The defendant does not dispute having entered into Ext.A1 agreement. She does not also dispute having received the sum of Rs.8,00,000/- as advance. Though she contends that it was the plaintiff who had committed the breach of contract, she has no case that on account of such breach committed by the plaintiff, she has suffered any loss. In such circumstances, as the defendant admits having received the sum of Rs.8,00,000/- and she has not proved that it was the plaintiff who had committed the breach of contract and thereby she had suffered any loss, the defendant cannot evade repayment of the advance received by her. The only defence put forward by her in the written statement is that the suit is barred by limitation. The trial court repelled that contention holding that in view of the statutory charge available to the plaintiff, the period of limitation is 12 years and the instant suit which was filed on 12.8.2011 is well within the period of limitation.
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We accordingly hold that there is no merit in the instant appeal. The appeal fails and is accordingly dismissed. The parties shall bear their respective costs.
(P.N. Ravindran, Judge)
(Annie John, Judge)
kav/
2 issues framed by the court
Whether the suit for return of advance payment is barred by limitation?
Whether the plaintiff breached the contract entitling the defendant to retention of advance?
Colour shows how this judgement treated each authority
Joseph v. VrindadeviReferred¶43
Joseph v. Vrindadevi (2008 (2) KLT 569)
2 provisions across 2 enactments
Sindu V.
Treesa Mathew
P.N. Ravindran
R.Narayana Pisharadi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.N. Ravindran and R.Narayana Pisharadi
Parties & counsel
