Managing Director, Kerala Electrical and Allied Engineering Company Limited v Tirurangadi Muslim Orphanage Committee

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 21ST DAY OF MARCH 2017/30TH PHALGUNA, 1938** **AS.No. 371 of 2001 ( ) -----------------------** **AGAINST THE JUDGMENT AND DECREE IN OS.23/1995 of SUB COURT, TIRUR DATED 5.3.2001 APPELLANT/DEFENDANT IN THE SUIT: ------------------------------MANAGING DIRECTOR, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, P.B NO.2301, 7TH FLOOR, HOUSING BOARD OFFICE COMPLEX, PANAMPILLY NAGAR, KOCHI 682016.** **BY ADV. SRI.B.S.KRISHNAN (SR.)** **RESPONDENT(S): -------------TIRURANGADI MUSLIM ORPHANAGE COMMITTEE (REGISTERED) REPRESENTED BY ITS GENERAL SECRETARY, C.H.KUNHAHAMED HAJI, S/O MOHAMMED, TIRURANGADI VILLAGE, TIRUR TALUK. BY ADV. SRI.V.M.KURIAN ADV. SRI.MATHEW B. KURIAN ADV. SRI.K.T.THOMAS ADV. SRI.A.V.THOMAS** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.Chitambaresh & Sathish Ninan, JJ. ============================== A.S No.371 of 2001 ========================== Dated this the 21[st] day of March, 2017** ## **JUDGMENT** ## **Sathish Ninan, J** 1. The defeated defendant in a suit for recovery of money is the appellant. The claim in the suit is for interest on the delayed payment of sale consideration towards the sale of 7 Acres of property belonging to the plaintiff to the defendant, the advance possession of which was handed over to the defendant much prior to the execution of the sale deed. 2. As per Ext.A1 letter dated 03.11.1986 the defendant expressed its desire to purchase 10.5 Acres of property belonging to the defendant situated in Tennala Village, Tirur Taluk. As per Ext.A2 letter dated 03.11.1986, the defendant offered to sell the land at the rate of - `1450/- per cent, subject to the approval of its general body and the Kerala Wakf Board. As evidenced by Exts.A3 and A4 correspondence between the plaintiff and A.S No.371/2001 2 defendant dated 06.01.1987, advance possession of 7 Acres was handed over to the defendant. Subsequently, as per Ext.A5 proceedings of the Wakf Board dated 12.06.1987, permission was granted to the defendant to sell the property at the rate mentioned. Thereafter, there was inordinate delay on the part of the defendant to pay the sale consideration and get the sale deed executed. Finally, on 13.05.1992 the entire sale consideration was paid as evidenced by Ext.B4 and the sale deed Ext.B3 was executed on 16.06.1994. The suit is filed claiming interest on the sale consideration for the delay in payment of the same, from the date of taking possession of the property namely 06.01.1987 to the date of payment of the sale amount namely 13.05.1992. 3. It cannot be disputed that the defendant was put in possession of the property as early as on 06.01.1987. So also the sale consideration payable was paid only on 13.05.1992 as evidenced by Ext.B4. As claimed by the plaintiff, it would only appear reasonable that A.S No.371/2001 3 when the property is agreed to be sold and the defendant is put in possession of the property, the defendant ought to have paid the sale consideration and got the sale deed executed immediately. The learned counsel for the respondent/ plaintiff drew our attention to Ext.A8 communication from the Wakf Board to the defendant wherein it is stated that the purchase price shall be deposited by the defendant subject to the rights of the plaintiff to claim prevailing market value and interest from the date of advance possession of the land, and contended that the said condition has been accepted by the defendant since no reply was issued to the same denying the said offer/condition. 4. It is true that the said communication Ext.A8 was not replied by the defendant expressing their unwillingness to accept the condition. However, subsequent thereto, the defendant issued Ext.B4 letter which reads as under: A.S No.371/2001 4 - 5.“with reference to the above we are sending enclosed Cheque No.0525245 dt.13.05.92 for `10,14,000/- in full and final settlement of purchase price of the property measuring 7 acres lying in Survey No.114/1 and 113/2 in Thennala Village of Thirur Taluk, belonging to Thirurangadi Yatheemkhana. Steps are being taken to draft the sale deed which will be registered after getting your approval.” 6. In Ext.B4 though the claim made in Ext.A8 has not been denied in explicit terms, has stated that the payment shall be in full and final settlement of the purchase price. The payment was accepted by the plaintiff. Here it is to be noted that Ext.A8 communication was issued by the Wakf Board and that there was no similar claim by the owner/the vendor of the property, namely the plaintiff. The agreed sale consideration between the plaintiff and the defendant was `1,450/- per cent. The tender submitted by the defendant for the said amount was accepted. There is no material to show that the claim in Ext.A8 for payment of the prevailing market rate and for interest A.S No.371/2001 5 was accepted by the defendant. On the contrary, Ext.B5 letter shows that the payment was in full and final settlement without leaving any room for further claim. The payment as evidenced by Ext.B4 has been accepted and Ext.B3 sale deed was executed in favour of the defendant. May be the plaintiff had a right to claim interest on the delayed payment of sale consideration or even was entitled to make a claim for enhancement of the sale price. However, without raising any demur, the plaintiff proceeded to execute Ext.B3 sale deed accepting the sale consideration paid. The rights and liabilities of the parties have concluded and crystallized under Ext.B3 sale deed. Thereafter the plaintiff cannot fall back upon a claim for interest for the delayed payment of sale consideration. Once the agreement for sale of the property has culminated in Ext.B3 sale deed, the parties are bound by its terms. After having voluntarily accepted the payment made by the defendant specifically stating it to be payment made in full and final settlement of the sale A.S No.371/2001 6 consideration and after having executed the sale deed without raising any protest and leaving open any rights, it is not open to the plaintiff to raise the claim as now urged. The finding of the court below that non-reply to Ext.A8 letter amounts to acceptance of the terms of it cannot be sustained. The conduct of the defendant subsequent to Ext.A8 clearly spells out nonacceptance of the condition mentioned in Ext.A8. At any rate, the non-reply of Ext.A8 cannot amount to acceptance of the terms suggested therein. Apart from the above, Ext.A8 did not mention the alleged market value and also the rate of interest. Therefore when the terms itself is not certain, by no stretch of imagination it could be held that non reply of Ext.A8 amounted to a concluded contract. 7. The learned counsel for the respondent/plaintiff would submit that the defendants having taken possession under the agreement much prior to the payment of sale consideration, are bound to compensate the plaintiff under Section 70 of the Contract Act or A.S No.371/2001 7 else there would unjust enrichment for the defendants. It is well settled that Section 70 of the Contract Act does not apply when the parties are governed by a contract.(See **State of W.B. V B.K.Mondal and Sons (AIR 1962 SC 779), Kochu Devassy v State of Kerala (1982 KLT 100)** , **Ramakrishnan Nair v State of Kerala (1989(2) KLT 100)** and **Joney E.M v State of Kerala (1995 KHC 541):(ILR 1995(3)KER.482)** . In the result, the appeal is allowed. The judgment and decree of the court below is set aside. The suit will stand dismissed. No costs. Sd/- **V.Chitambaresh, Judge** Sd/- **Sathish Ninan, Judge** vdv