Partly allowed

P.Dasappan Nair v. a.K.Sivan Nair

Kerala HC7 Apr 2022RFA/692/2009

Case brief

AI extract

What is this about?

The court allowed the appeal in part, holding that a pre-estimate of damages in a contract for sale constitutes reasonable compensation for default in performance. The decree was modified to recover the advance amount plus the pre-estimated compensation.

What did the court decide?

Decree modified to return Rs.1,50,000/- (advance plus pre-estimated compensation) with interest at 6% per annum.

P.Dasappan Nair Vs a.K.Sivan Nair — Contract and Commercial Disputes | Kerala HC (2022)

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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.SOMARAJAN

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WEDNESDAY, THE 7^th DAY OF APRIL 2022 / 17TH CHAITHRA, 1944

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RFA NO. 692 OF 2009 (D)

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AGAINST THE JUDGMENT AND DECREE DATED 26.02.2005 IN OS 339/2000 OF

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PRINCIPAL SUB COURT, KOTTAYAM

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APPELLANT/DEFENDANT:

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P.DASAPPAN NAIR, AGED 66 YEARS, S/o PARAMESWARAN NAIR, RESIDING AT DEVIKRIPA, MARIAPPALLY, MUTTAMKARA, NATTAKOM VILLAGE, MARIAPPALLY P.O.

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BY ADV SRI.K.JAGADEESCHANDRAN NAIR

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RESPONDENT/PLAINTIFF:

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A.K.SIVAN NAIR, S/o KESAVAN NAIR, AGED 45 YEARS, RESIDING AT GIRIJA SADANAM, THIRUNAKKARA KARA, KOTTAYAM VILLAGE, KOTTAYAM P.O.

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BY ADV SRI.RAJEEV V.KURUP

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.692 of 2009

JUDGMENT

This appeal is pertaining to non-grant of reasonable

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compensation alleged to have been sustained by the defendant and also the compensation pre-estimated and

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included in the contract for sale, while granting recovery of advance amount.

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The advance amount originally comes to

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Rs.1,00,000/-. Later on, another amount of Rs.1,00,000/-

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was also received under a contract for sale. It is not

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under dispute. Hence, a decree was granted for return of the said amount from the defendant. The grievance of the defendant is that there is a pre-estimate of damages to the tune of Rs.50,000/-, in the event of non-performance of the part of contract by the plaintiff and the contract could not be performed due to the fault of the plaintiff. The

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time was made as the essence of the contract since the

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property was agreed to be sold for meeting the construction expenses of a residential house in the property of the defendant. Due to the default of the plaintiff, he was

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RFA No.692 of 2009 3

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forced to take bank loan and to sell the gold ornaments belonged to him. Now he is incurring huge interest over the bank loan.

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It is submitted by the learned counsel for the

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plaintiff that he refused to perform his part of contract

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because of the reason that he was under the impression at

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the time of alleged contract that there is sufficient open

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space at the front side of the building for parking two wheeler. Such an impression was created at the time of contract for sale as there was some open space in front of the house. But later on, it is learnt that the open space

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did not belong to the defendant. I am at a loss to

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understand even the case advanced by the plaintiff for not performing his part of contract. What is agreed to be sold is an extent of 2.55 Ares of property made mentioned in the

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contract. The property is so far not measured in order to ascertain whether there is reduction in extent and no

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attempt was made in that behalf by the plaintiff either in the suit or otherwise, but simply raised a ground that he

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was under an impression that there is more open space at the front side of the house situated in the property to be

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RFA No.692 of 2009 4

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sold. This would show that it is the plaintiff who had committed the default in performing his part of the contract. Necessarily, the pre-estimate done in the

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contract for sale should be granted by way of compensation. In fact, it reflects a reasonable compensation while taking into consideration the attending circumstances based on the legal position settled by the Apex Court in Fetch

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Chand v. Balkishan Dass [1963 KHC 631 = AIR 1963 SC 1405] and this court in Micheal v. Sebastian and others [2017 (4) KHC 52 (DB)]. Hence, the decree and judgment of the trial court is modified by granting a decree of return of Rs.1,50,000/- (Rupees one lakh fifty thousand only) with interest @ 6% per annum from the date of suit till the date of realization from the defendant and charged upon the property.

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The appeal is allowed in part accordingly. No cost.

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Sd/-

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P.SOMARAJAN JUDGE

DMR/-

RFA No.692 of 2009

APPENDIX

APPELLANT'S ANNEXURE:

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ANNEXURE 1 : TRUE COPY OF THE WRITTEN STATEMENT IN OS 339/2000.

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// TRUE COPY //

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P.A. TO JUDGE

P.Dasappan Nair v. a.K.Sivan Nair

Case brief

What is this about?

What did the court decide?

P.Dasappan Nair v. a.K.Sivan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

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