Partly allowed

Manden Ananda Alias Anandavally v. Shri.M.K.Balakrishnan

Kerala HC16 Feb 2022RFA/801/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, holding the plaintiff's repudiation notice unsustainable. It ordered reasonable compensation for demolished building and trees to be adjusted against the advance amount, granting the plaintiff the balance with interest.

What did the court decide?

Compensation of Rs. 2,00,000/- for the demolished building and Rs. 1,00,000/- for tree removal awarded and adjusted against the advance. Decree for balance of Rs. 2,00,000/- with interest at 6% per an

Manden Ananda Alias Anandavally Vs… — 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 16^th DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943

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RFA NO. 801 OF 2012 (H)

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AGAINST THE JUDGMENT AND DECREE DATED 31.03.2012 IN OS No.15/2010 OF

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PRINCIPAL SUB COURT, THALASSERY

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APPELLANT/DEFENDANT:

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MANDEN ANANDA ALIAS ANANDAVALLY, D/o SUMALINI, AGED 58 YEARS, VASANTHA BAKERY, CHURCH ROAD, UDUPPI.P.O-576 101, KARNATAKA STATE.

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BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI

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RESPONDENT/PLAINTIFF:

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SHRI.M.K.BALAKRISHNAN, S/o KOTTAN, AGED 55 YEARS, BUSINESS, RESIDING AT 'SHIVOHA', KANNUR AMSOM, CHOVVA DESOM, P.O.CHOVVA, KANNUR-670 006.

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BY ADVS. SRI.K.N.ABHILASH SMT.R.LEELA SRI.SUNIL NAIR PALAKKAT

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.801 of 2012

JUDGMENT

The defendant came up against the decree for return of

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advance amount with interest received under a contract for

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sale, Ext.A1, dated 02.09.2008. There are two items of properties which were agreed to be sold at the rate of Rs.85,000/- per cent by stipulating a period of four months. The plaintiff issued a demand notice, dated 20.03.2009, claiming return of the advance amount and by repudiating the contract for sale, to which the defendant issued a reply (Ext.A3) expressing her willingness to perform her part of contract and demanded the plaintiff to perform his part of contract.

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The trial court raised two issues as to who has

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committed default in the performance of the contract and whether the plaintiff is entitled to return of advance amount. The first issue was answered in favour of the

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plaintiff and as such a decree was granted for return of

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RFA No.801 of 2012

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the advance amount against which the defendant came up.

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The trial court has committed a mistake in arriving

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at a conclusion regarding the default in the part of

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defendant. There are two items of properties, out of which one item is involved in a civil dispute. But, before the

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expiry of the agreed period of contract, the litigation

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pertaining to the said property was concluded and admittedly the defendant had obtained possession of the property in furtherance of the decree in her favour, ie. item No.2. She had obtained delivery of the property prior to the agreed period of four months stipulated in Ext.A1

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agreement. The period of four months was expired on 03.03.2009. Till that time, no notice was issued by the plaintiff or the defendant. The first notice issued was on 20.03.2009 in which the plaintiff claimed return of the advance amount and repudiated the contract unilaterally for sale. The repudiation notice issued is really unwarranted

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and legally not sustainable, to which Ext.A3 reply was issued by the defendant expressing her willingness to perform her part of contract. This would prima facie show

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RFA No.801 of 2012 4

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and lend support to the case advanced by the defendant that

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she was all along ready and willing to perform her part of

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contract. There is no much relevance to the contention raised by the plaintiff that the document of title was not forwarded to him by the defendant. Even they have no case that the title held by the defendant over the property is

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defective or that the property was subjected to any encumbrance. No such case was brought out at the time of trial or in the respective pleadings raised by the parties.

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Hence, the finding rendered by the trial court that the contract could not be executed due to the default on the part of defendant cannot be sustained, especially when the plaintiff has issued a notice of repudiation immediately after the expiry of four months period. The willingness

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expressed by the defendant to perform her contract in answer to the said reply was not properly considered by the trial court. It is an admitted case of the plaintiff that the building situated in the property was demolished by the plaintiff as agreed into under Ext.A1 contract, for which

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the defendant claims that she had sustained a loss of

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RFA No.801 of 2012 5

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Rs.4,00,000/-. Since the building was completely demolished and removed, even prior to the institution of the suit and

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during the agreed period of four months, it may not be possible for the defendant to adduce evidence to show the actual damages sustained by the removal of the building. It

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is after the demolition of the building, the plaintiff unilaterally tried to repudiate the contract which would explain what actually happened between the parties. The mischievous intention on the part of the plaintiff is well explicit and writ large on its face. Hence, the finding rendered by the trial court on issue No.1 cannot be sustained. Since the building was demolished and taken away by the plaintiff, the burden to show the actual value

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of the building removed would equally lie on both the

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parties and in the absence of any cogent evidence, it is

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permissible to order reasonable compensation, ie. Rs.2,00,000/- on account of removal of the building and Rs.1,00,000/- on account of cut and removal of the trees

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and other damages sustained, which shall be adjusted

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towards the advance amount and the plaintiff is entitled to

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RFA No.801 of 2012 6

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a decree for the balance amount, ie. Rs.2,00,000/- with interest at the rate of 6% per annum from the date of suit till the date of recovery from the defendant and charged upon the subject matter of the contract with proportionate costs. The appeal will stand allowed in part accordingly.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Manden Ananda Alias Anandavally v. Shri.M.K.Balakrishnan

Case brief

What is this about?

What did the court decide?

Manden Ananda Alias Anandavally v. Shri.M.K.Balakrishnan

Case brief

What is this about?

What did the court decide?

What the court decided

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