P.C JOY v. ALIYAMMA ALEXANDER and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945** **RFA NO. 416 OF 2014** **AGAINST THE JUDGMENT AND DECREE IN OS 90/2009 OF SUB COURT,** ## **THIRUVALLA** ## **APPELLANT/PLAINTIFF:** P.C JOY,AGED 53 YEARS,PALLATTU VEEDU,ANJILITHANAM MURI,KUNNAMTHANAM VILLAGE,MALLAPPALLY TALUK. BY ADV SMT.INDU SUSAN JACOB ## **RESPONDENTS/DEFENDANTS:** 1 ALIYAMMA ALEXANDER,AGED 65 YEARS W/O.ALEXANDER K JOHN,KIZHAKKEMURIYIL VEEDU,PUTHUSSERRY MURI,KALLOOPPARA VILLAGE,MALLAPPALLY TALUK 2 BIJI ALEXANDER,AGED 38 YEARS S/O.ALEYAMMA ALEXANDER,KIZHAKKEMURIYIL VEEDU,PUTHUSSERRY MURI,KALLOOPPARA VILLAGE,MALLAPPALLY TALUK,REPRESENTED BY HIS MOTHER ALEYAMMA ALEXANDER (EXPIRED) (DEATH OF 2ND RESPONDENT IS RECORDED. IT IS ALSO RECORDED THAT LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE ALREADY IN THE PARTY ARRAY VIDE ORDER DATED 10.03.2016 IN MEMO DATED 03.03.2016(VIDE NO,1437/16) 3 KOCHUMON ALEXANDER,AGED 37 YEARS S/O.ALEYAMMA ALEXADER,KIZHAKKEMURIYIL VEEDU,PUTHUSSERRY MURI,KALLOOPPARA VILLAGE,MALLAPPALLY TALUK,REPRESENTED BY HIS MOTHER ALEYAMMA ALEXANDER 4 BINOY ALEXANDER,AGED ABOUT 35 YEARS, S/O.ALEXANDER K JOHN,KIZHAKKEMURIYIL VEEDU,PUTHUSSERRY MURI,KALLOOPPARA VILLAGE,MALLAPPALLY TALUK 5 KUNJU ALEXANDER, AGED 40, B/O.BIJOJ ALEXANDER,KIZHAKKEMURIYIL VEEDU,PUTHUSSERRY MURI,KALLOOPPARA VILLAGE,MALLAPPALLY TALUK BY ADV DR.GEORGE ABRAHAM ## **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON** **26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Sathish Ninan, J.** **============================== R.F.A No.416 of 2014 ========================== Dated this the 26[th] day of June, 2023** ## **JUDGMENT** The suit for return of advance sale consideration was dismissed by the trial court. The plaintiff is in appeal. 2. Ext A1 agreement dated 14.07.2008 was executed between the plaintiff and defendants 1 to 4. As per Ext.A1, property having an extent of 81.16 Ares was agreed to be conveyed to the plaintiff. The property originally belonged to the husband of the 1[st] defendant and father of defendants 2 to 5. Since the 5[th] defendant was not in station, Ext A1 agreement was executed by defendants 1 to 4, stated to be on his behalf also. The sale consideration fixed was D 25,000/- per cent. An amount of D 5 Lakhs was paid towards advance sale consideration. Sale deed was to be executed within a period of five months. Subsequently, the plaintiff learnt that defendants 2 and 3 are incompetent to R.F.A No.416 of 2014 ## -: 2 :- execute a conveyance due to their mental incapacity. In the meantime, defendants 1 to 4 sent Ext A2 lawyer notice, calling upon the plaintiff to perform the agreement. The plaintiff sent Ext A3 reply expressing his readiness and willingness to perform the contract but subject to the condition that, in the light of the mental incapacity of defendants 2 and 3, another property must be offered as security to safeguard the interests of the plaintiff. Plaintiff alleges that, since the defendants were not prepared to offer security to indemnify claims by defendants 2 and 3, the agreement could not be proceeded with. Accordingly, the suit is filed for return of the advance sale consideration with interest. 3. Defendants 1 to 4 entered appearance through counsel. There was no appearance for the 5[th] defendant. Though in the written statement they did not deny the averments levelled against defendants 2 and 3, it was contended that the said fact was known to the plaintiff R.F.A No.416 of 2014 ## -: 3 :- even at the time when the agreement was entered into. It was also contended that, consequent on the nonperformance of the agreement, they have suffered damages and that the plaintiff is not entitled for return of the advance sale consideration. 4. The trial court held that it was the plaintiff who committed breach. The court further held that Ext A1 agreement contained a default clause whereunder the advance amount was liable to be forfeited. Relying upon the same, the trial court dismissed the suit. 5. Heard the learned counsel on both sides. 6. A perusal of Ext A1 agreement shows that it was executed by defendants 1 to 4 on behalf of the 5[th] defendant also. Ext.A2 is the lawyer notice issued on behalf of all the defendants including the 5[th] defendant. That indicates that the 5[th] defendant had also accepted the agreement. The 5[th] defendant has not appeared in the suit and contended otherwise. According to the plaintiff, subsequent to the execution of Ext A1 R.F.A No.416 of 2014 ## -: 4 :- agreement, he came to know that defendants 2 and 3 does not have the mental capacity to enter into sale transaction. Therefore, he required the other defendants to furnish a property as security to indemnify them against future claims. The defendants were not willing for the same. Thereupon the plaintiff was compelled to resile from the contract. 7. Defendants 2 and 3 filed a written statement through the 4[th] defendant as their guardian. At paragraph 5 therein it is stated thus: “A\ym-bw 4þmw ]m-cm-bn-se {]-kv-Xm-h-\-IÄ apgp-h\pw i-cn-bñ. 2þw 3þw {]-XnI-fpsS A-h-Ø I-cmdn\v ap-¼pX-só hm-Zn-¡-dn-hp-Å-Xpw B-h-iyam-b ap³-I-cp-X-ep-IÄ F-Sp-¯p h-kv-Xp F-gp-Xp-s¡m-Sp-¡phm³ {]-Xn-IÄ A-t¸mgpw F-t¸mgpw X-¿m-dm-bn-cpóXp-am-Wv.” 8. Therefore, the averment of the plaintiff that defendants 2 and 3 are not competent enough to execute conveyance was not disputed. The learned counsel for the R.F.A No.416 of 2014 ## -: 5 :- respondent would contend that the Court had appointed guardian without following the procedure prescribed under the Code of Civil Procedure. However, the violation of any specific provision could not be demonstrated. The judgment records that, the Court had interacted with defendants 2 and 3 and found them incapable to give rationale answers to the questions put to them. The correctness or otherwise of the procedure adopted need not be gone into now. It only needs to be noticed that even the Court, on interaction, found some lack of competency with them. In the above circumstances, it cannot be said that the plaintiff was not justified in deciding not to go ahead with the transaction unless adequate security/indemnity is furnished. 9. Law is too well settled that, unless the defendants prove that they have suffered damages consequent on the breach of the agreement for sale, they are bound to return the advance sale consideration. They R.F.A No.416 of 2014 ## -: 6 :- are not entitled to appropriate the same. In _**Kailash Nath Associates vs. Delhi Development Authority, (2015 (4) SCC 136)**_ the Apex Court held that it is the most basic principle on the award of damages that, compensation can only be given for damage or loss suffered. If damage or loss is not suffered, the law does not provide for a windfall. Therefore, merely on the breach of Ext.A1, the defendant is not entitled to appropriate the advance amount. It is common knowledge that the value of immovable properties are on the rise day-by-day. Therefore, it could not be said that the defendants had suffered any damages, unless there is specific evidence regarding the same. The defendants claimed that the 5[th] defendant had to come down from abroad for the purpose of execution of the sale deed for which he spent D 50,000/- and thus he has suffered damages. 10. The 5[th] defendant, as noticed earlier, has not even appeared and filed written statement in the suit. R.F.A No.416 of 2014 ## -: 7 :- No claim for damages is raised by him. Though Ext.A2 notice stated that he is available at the native place, it did not state that he had come down for the purpose of execution of sale deed. No evidence is adduced to the said effect. So also, no evidence regarding the quantum of damages if any suffered by him consequent thereto is adduced. In the light thereof, the claim for damages by the defendants is not sustainable. 11. On the discussions as above, it can only be found that the advance sale consideration is liable to be returned with interest. On the contention of the plaintiff, defendants 2 and 3 cannot be made liable for the amount. The amount is to be recovered from defendants 1, 4 and 5. 12. Considering the prevailing rate of interest in banking transactions, the plaintiff could be awarded interest at the rate of 9% per annum from the date of agreement till date of decree and thereafter at 6% per annum till realisation. R.F.A No.416 of 2014 -: 8 :- In the result, this appeal is allowed. The decree and judgment of the trial court is set aside. The suit is decreed allowing the plaintiff to realise an amount of D 5 Lakhs with interest at the rate of 9% per annum from 14.07.2008 till the date of filing of the suit(12.06.2009), and thereafter also at the same rate till the date of decree(26.06.2023), and thereafter at the rate of 6% per annum till realisation, from defendants 1, 4 and 5 and their assets. The plaintiff shall be entitled for proportionate costs throughout. **Sd/-** **Sathish Ninan, Judge** **vdv**