G. Viswambharan Nair v. Suseela Mendez

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** **AS.No. 173 of 2002** **AGAINST THE JUDGMENT AND DECREE IN OS 19/1996 of PINCIPAL SUB COURT,TRIVANDRUM DATED 30-06-2001** ## **APPELLANT/DEFENDANT:** **G.VISWAMBHARAN NAIR S/O.R.GANGADHARAN PILLAI, SOWPARNIKA, VENCODE, VATTAPPARA, THIRUVANANTHAPURAM.** **BY ADV. SRI.M.R.SARIN** ## **RESPONDENT/PLAINTIFFS:** **SMT. SUSEELA MENDEZ MENDEZ COTTAGE, NANTHANCODE, NOW RESIDING AT T.C.NO.5/1230, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010.** **BY ADV. SRI.M.L.SAJEEVAN** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21.03.2019, ALONG WITH CO.100/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A.S.173/2002 & C.O.100/2008.** -2- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** **CO.No. 100 of 2008 IN AS. 173/2002** **AGAINST THE JUDGMENT IN OS 19/1996 of PINCIPAL SUB COURT,TRIVANDRUM DATED 30-06-2001** **CROSS OBECTOR/RESPONDENT:** **SUSEELA MENDEZ MENDEZ COTTAGE, NANTHANCODE, NOW RESIDING AT T.C.NO.5/1230, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010.** ## **RESPONDENT/APPELLANT:** **G.VISWAMBHARAN NAIR S/O.R.GANGADHARAN PILLAI, RESIDING AT SOWPARNIKA, VANCODE, VATTAPPARA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.B.RAGUNATHAN SRI.G.S.MOHANDAS** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2019, ALONG WITH AS.173/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A.S.173/2002 & C.O.100/2008.** -3- ## **JUDGMENT** The sole defendant in O. S No. 19 of 1996 on the file of the Principal Subordinate Court, Thiruvananthapuram, has come up with this appeal challenging the judgment and decree directing him to pay a sum of Rs.1,50,000/- to the plaintiff with interest at the rate of 12% per annum. 2. The short facts for the disposal of this appeal are as follows: The plaintiff/respondent is engaged in real-estate business. The plaintiff and the defendant have entered into an agreement for sale of a property having an extent of 2 acres in Sy. Nos. 1752/1-4, 1752/1-6 and 1752/1-4-2 of Vattapara Village. The sale consideration was fixed at the rate of Rs.14,000/- per cent. An advance amount of Rs.2,00,000/(Rupees two lakh) was also received by the defendant on the date of execution of the sale agreement on 08.02.1995. The period fixed would expire on 07.07.1995. The plaintiff was also ## **A.S.173/2002 & C.O.100/2008.** -4- permitted to cut and remove the rubber trees standing in the property for construction of a pathway. Though the plaintiff was ready and willing to perform his part of contract and he had made arrangements to improve the property by spending an amount of Rs.35,000/-,due to the latches on the part of the defendant, the sale deed was not materialized and hence, she has approached the defendant to get back the amount. But it was not returned and hence, the suit for recovery of the advance amount with compensation as well the amount of Rs.35,000/- spent for improving the property. 3. The defendant admitted the execution of the agreement dated 08.02.1995. But contended that he had entered into an agreement with one Swaminathan for purchase of 31 cents of land in Sy. No.1724/1 in Nedumangad Village for a sum of Rs.40,000/- per cent and he had paid an advance of Rs.1,00,000 on 15.02.1995/-. The period fixed for execution of the sale deed with Swaminathan would expire on 15.02.1995. An amount of Rs.60,000/- was paid on 24.02.1995, Rs.40,000/- on 06.03.1995 and Rs.1,00,000/- on **A.S.173/2002 & C.O.100/2008.** 23.03.1995 and thus in total an amount of Rs.3,00,000/- was paid by the defendant to Swaminathan and all those payments were endorsed in the agreement itself. Since the plaintiff committed breach of contract, he could not purchase the property from Swaminathan and thus he sustained a huge loss of Rs.3,00,000/-. Therefore, he is not bound to return the amount claimed by the plaintiff. It was also contended that as the rubber trees were cut and removed, he sustained loss to the tune of Rs.80,000/- on that count, for construction of the road an amount of Rs.98,000/- was spent, Rs.20,000/- had been paid as brokerage and as damages were caused to the trees, fence etc. Rs.10,000/- was lost. Thus the total loss sustained by him due to non performance of the contract by the plaintiff was Rs.5,08,000/-. 4. Before the Court below, PW1 and PW2 were examined and Exts.A1 to A3 were marked for the plaintiff. On the side of the defendant, DW1 and DW2 were examined and Exts.B1 to B3 were marked. ## **A.S.173/2002 & C.O.100/2008.** -6- 5. Heard the learned counsel appearing for the appellant/defendant, and the learned counsel appearing for the respondent/plaintiff. 6. At the outset, it is to be noted that the suit is one for return of advance amount and not for specific performance. The execution of agreement dated 08.02.1995 for sale of 2 acres of land is not in dispute. So also, there is no dispute that the price fixed was Rs.14,000/- per cent and that the advance payment was an amount of Rs.2,00,000/-. Admittedly, the plaintiff is engaged in real-estate business. The period fixed for performance of the contract was five months. It is also evident from the records that, as per the understanding between the parties on the basis of this agreement, a road has to be constructed to provide access to the plots in the entire property. The definite case of the plaintiff is that she was always ready and willing to purchase the property by paying the balance sale consideration, but the sale deed was not executed due to the latches or breach committed by the defendant. She has also a case that she ## **A.S.173/2002 & C.O.100/2008.** -7- was always ready and willing to perform the contract and she was having the money or financial capacity to raise the funds to pay the balance sale consideration. As mentioned earlier, the time fixed for execution of the agreement was later extended upto 07.01.1996 and according to her, as the defendant had committed breach, the defendant is liable to return the amount of advance of Rs.2,00,000/-. As he could not substantiate his case that he had sustained any kind of legal injury, the entire amount of Rs.2,00,000/- plus the amount of Rs.35,000/- spent by her for formation of the road and compensation of Rs.50,000/- on the ground of breach committed by the defendant, have to be paid. On the other hand, the defendant had produced Ext.B1 and examined DW2 to prove he had an intention to purchase a property from him and on 15.02.1995 itself, he executed an agreement by paying an advance amount of Rs.1,00,000/- fixing the value of the property at the rate of Rs.40,000/- per cent, and substantial payment of Rs.1,00,000/-, was paid on 23.3.1995 apart from the payment of Rs.60,000/- on 24.2.1995 and Rs.40,000/- on ## **A.S.173/2002 & C.O.100/2008.** -8- ## 24.02.1995. 7. So in total he paid an amount of Rs.3,00,000/towards the sale consideration of the property pursuant to Ext.B1. But due to the breach committed by the plaintiff, he could not get the document executed in his favour and thus he lost the advance amount of Rs.3,00,000/- on that ground was his case. Apart from the said amount he had paid Rs.20,000/as broker fees. Moreover, hundred rubber trees standing in the property were cut and removed for formation of the pathway in terms of Ext.A1 agreement and on that count he sustained a loss to the tune of Rs.80,000/-. He had to spent an amount of Rs.6000/- towards the charges for cutting and removing the rubber trees in the property and as damages were caused to the fencing of the property due to the formation of the road, an amount of Rs.3500/- had been spent by him. He has also a case that the entire property was measured out and for that purpose he had paid Rs.500/-, then for the formation of the road through the property he had spent an amount of Rs.98,000/- and thus the loss sustained by him due to the ## **A.S.173/2002 & C.O.100/2008.** -9- breach of contract committed by the plaintiff was Rs.5,08,000/-. 8. It is significant to note that as per Ext.B1, the time for performance of the contract by executing the sale deed was fixed as 08.07.1995. But he had no case that he approached DW2 by sending a notice stating that he is having sufficient funds with him to pay the balance sale consideration. DW2 also had no such case. 9. It is also to be noted that the writings in Ext.B1 appears to have been written on the very same day at a stretch. The handwriting with regard to the payments effected by him on different dates, the ink used to endorse the same etc appears to have been written at a stretch. So it is difficult to believe that Ext. B1 agreement was executed on 14.02.1995 fixing the period for performance as five months and because of the breach on the side of the plaintiff, the agreement was not executed on 08/07/1995, causing a loss to the tune of Rs.3,00,000/- to the defendant. So this document and evidence of DW2 appears to be quite unbelievable and it is ## **A.S.173/2002 & C.O.100/2008.** -10- not possible to infer that the defendant who is a financier has entered into a contract with DW2 Swaminathan and paid an amount of Rs.3,00,000/- and then remained silent and did not attempt to get the document in his favour. So it is difficult to accept the case put forth by the defendant or to rely on Ext.B1 document. 10. The next point to be looked into is whether he could adduce reliable evidence to substantiate his case that he had spent in total an amount of Rs.2,08,000/- (construction of road, damages caused to rubber trees, fencing etc). On a perusal of the records it could be seen that a road has been formed through the plaint schedule property in compliance with the terms of the agreement. It was also after cutting and removing of certain rubber trees. So the Court below had assessed the damages as Rs.50,000/- on the basis of the data available on records especially in the absence of reliable evidence on the side of the defendant. I find no legally justifiable reason to interfere with the said finding. ## **A.S.173/2002 & C.O.100/2008.** -11- 11. As mentioned earlier, the plaintiff had filed the suit only to get back the amount which she had advanced and it is not for specific performance. Since, it is evident that she could substantiate her case that the breach was committed by the defendant, she is entitled to get back the advance amount, after adjusting the amount due to the defendant, as found above. In fact the period for performance of the contract was extended till 7.1.1996. But before the said date he had issued Ext.A2 notice on 30.06.1995 itself calling upon to perform the contract though she had time upto 7.1.1996. That itself would show that his intention was to sell the property to others for higher rates. It is also to be noted that he failed to disclose the details of Ext.B1 agreement in the notice though it was executed on 14.2.1995. It is well settled that only if the defendant could prove that he sustained legal injury due to the non-performance of contract, he can retain the advance amount paid by the plaintiff. (See **Vinodan** v. **Sunil Kumar** (2015 (2)KHC 656)). Another aspect of the matter also needs consideration. There is no definite forfeiture clause in the **A.S.173/2002 & C.O.100/2008.** **==> picture [226 x 8] intentionally omitted <==** agreement but of-course if legal injury is caused compensation can be claimed. But evidence is lacking to retain the entire amount as claimed by the defendant. Such being the case, the finding of the Court below that the plaintiff is entitled to get back the advance amount of Rs.2,00,000/- only after deducting the amount of Rs.50,000/- for the minor preparations effected in the property of the defendant pursuant to the contract, warrant no interference. Taking into account of the said aspect the suit was decreed only for a sum of Rs.1,50,000/-.Therefore, I find no justification to interfere with the said finding. But regarding the interest awarded, I think that, it is much exorbitant and hence the interest awarded for the said amount has to be reduced. Therefore, the judgment and decree under challenge are modified and it is held that the plaintiff is entitled to get back the amount with interest only at the rate of 6% per- annum (balance amount of Rs.1,50,000/- after adjusting Rs.50,000/-). ## **A.S.173/2002 & C.O.100/2008.** -13- 12. In the result, the appeal is disposed of modifying the judgment and decree. The plaintiff is entitled to recover the amount of Rs.1,50,000/- with future interest only at the rate of 6% from the date of the suit till realization from the defendant and his assets. The parties shall bear their respective costs. Cross appeal stands dismissed. SJ **SD/SHIRCY V. JUDGE**