V.T Saju v. Ramakrishnan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 2ND DAY OF FEBRUARY 2018 / 13TH MAGHA, 1939 CRP.No. 636 of 2014 ## REVISION PETITIONER/PLAINTIFF: V.T SAJU, AGED 45 YEARS, S/O. THANKAPPAN, VANDAMPRAYIL HOUSE, KOZHIPPILLY KARA, PALAKKUZHA VILLAGE. BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## RESPONDENTS/DEFENDANTS: 1. RAMAKRISHNAN, AGED 54 YEARS, S/O. BHASKARAN, OLEDATHU HOUSE, KOOTHATTUKULAM KARA, KUTHATTUKULAM VILLAGE. 2. OMANA, AGED 52 YEARS, W/O. RAMAKRISHNAN, OLEDATHU HOUSE, KOOTHATTUKULAM KARA, KUTHATTUKULAM VILLAGE. 3. MOHANAN, AGED 50 YEARS, S/O. BHASKARAN, OLEDATHU HOUSE, KOOTHATTUKULAM KARA, KUTHATTUKULAM VILLAGE. 4. USHA, AGED 45 YEARS, D/O. BHASKARAN, OLEDATHU HOUSE, KOOTHATTUKULAM KARA, KUTHATTUKULAM VILLAGE. R1 -R 4 BY ADV. SRI.MATHAI EAPPEN VETTATH R1 -R 4 BY ADV. SMT.A.R.USHA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **ANNIE JOHN, J. --------------------------------** ## **C.R.P No. 636 of 2014** ## **---------------------------------Dated this the 2[nd] day of February, 2018.** ## **ORDER** The revision petitioner is the plaintiff in O.S.No. 417 of 2014 on the file of the Munsiff's Court, Muvattupuzha and the respondents are the defendants in the Original Suit. The suit was filed seeking a decree for return of advance amount. He has also filed I.A. No. 1843 of 2014 to attach the immovable properties specified in the attachment schedule. 2. The case of the revision petitioner is that he entered into an agreement with the respondents for sale on 24.09.2013 in respect of 19 cents of property in Sy. No. 24/2A of Kothattukulam Village with a right of way to it for a total sale consideration of Rs.34,50,000/-. On the date of agreement, he has paid an amount of Rs.5,00,000/- as advance sale consideration and thereafter Rs.50,000/- on 03.11.2013. At the first instance, the court below has attached the property as sought for in I.A No. 1843 of 2014. But later, on hearing the respondents, the court below vacated the same finding that the revision petitioner committed breach of contract. 3. According to the petitioner, respondents 3 and 4, who are having right over the pathway leading to the plaint schedule property, started to demand more amount than they agreed in the contract and that they informed the revision petitioner that they will not execute the C.R.P. No. 636/2014 -2- sale deed unless he pays an additional amount to the way and therefore, he has demanded to get back the advance sale consideration paid by him. But the court below has found that there was breach of agreement on the part of the revision petitioner and accordingly, lifted the order of attachment effected upon the plaint schedule property. The respondents have produced Ext.B1 agreement and another agreement with another person for purchasing the property. According to the revision petitioner, the order passed by the court below is wrong, perverse and illegal and the legality of Ext.B1 document could only be ascertained after taking evidence. Hence this revision. 4. In fact, the original suit was filed by the revision petitioner for getting back the advance amount paid to the respondents on the strength of an agreement for sale executed on 24.09.2013 in respect of 19 cents of property in Sy. No. 24/2A of Koothattukulam Village with a right of way to it for a total sale consideration of Rs.34,50,000/-. The revision petitioner paid an amount of Rs.5,00,000/- as advance sale consideration on the date of agreement and thereafter Rs.50,000/- on 03.11.2013. It is further alleged that defendants 3 and 4, who are the persons to assign the right of way to the plaint schedule property, started demanding huge amounts for the right of way in collusion with respondents 1 and 2 for executing the sale deed. According to the revision petitioner, he has demanded several times to execute the sale C.R.P. No. 636/2014 -3- deed; but it was not materialised due to breach of agreement committed by the respondents. Finally, he has withdrawn from the agreement for sale and filed a suit for return of advance sale consideration. The grievance of the revision petitioner is that the court below has allowed I.A. No. 1843 of 2014 for attachment of property and a conditional order of attachment was passed by the court below. Thereafter, the respondents herein appeared and filed a written objection. The respondents admitted receipt of Rs.5,00,000/- as advance sale consideration; but disputed the acceptance of Rs.50,000/-. It is also contended that the breach of contract was committed by the revision petitioner and therefore, he is not entitled to get back the advance sale consideration. After hearing both sides, the court below dismissed I.A No. 1843 of 2014 and lifted the attachment effected on the petition schedule property. Now the question to be considered is whether the order passed by the court below is sustainable or not. 5. The definite case of the revision petitioner is that he entered into an agreement with the respondents for sale of the petition schedule property for a total sale consideration of Rs.34,50,000/-. The revision petitioner has paid Rs.5,00,000/- as part of the sale consideration on the date of sale agreement itself. Later on 03.11.2014, he paid Rs.50,000/and the same was endorsed on the reverse side of the sale agreement. According to the revision petitioner, he was always ready and willing to C.R.P. No. 636/2014 -4- perform his part of the agreement and he tendered the balance sale consideration as well. In spite of repeated requests by the revision petitioner, the respondents have not acceded to the same. In fact, there is a dispute that respondents 3 and 4 had undisputed right over the way to the plaint schedule property and they demanded some amount for the pathway. Hence he has filed the suit on getting information that the respondents colluded together and were trying to sell the plaint schedule property to third parties for a higher price. Accordingly, the revision petitioner has withdrawn from the agreement, informed the respondents and filed a suit for return of advance money. 6. _Per contra_ , the respondents contended that they have not received any amount on 03.11.2013 as alleged by the revision petitioner. In fact, the receipt of Rs.5,00,000/- as advance amount is admitted. According to them, the total sale consideration was fixed for an amount of Rs.34,50,000/-. The revision petitioner was not ready and willing to execute the sale deed and therefore, they have incurred huge damages as they entered into an agreement with the third parties. Accordingly, they sought a direction from the court below to lift the attachment effected on the plaint schedule property. After hearing both sides, the learned Munsiff lifted the conditional order of attachment. 7. According to the revision petitioner, he is entitled to get back the advance amount since there was no fault on his part in executing the C.R.P. No. 636/2014 -5- agreement. Ext.A1 is the agreement admittedly executed between the revision petitioner and the respondents. 8. The learned Munsiff has acted upon based on Section 55(6)(b) of the Transfer of Property Act, which provides that the buyer is entitled unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all the persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest, if any and for the costs, if any awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission. 9. Accordingly, the Munsiff has found that revision petitioner/plaintiff had committed breach and improperly declined to accept delivery and therefore, he is not entitled to get back the advance money, and that no notice was sent to the respondents seeking specific performance of the contract. It is also observed that instead of filing a suit for return of advance amount, the revision petitioner ought to have filed a suit for specific performance of the contract on the basis of the agreement. It is further observed that the respondents have entered into another agreement as is evident from Ext.B1 for the purchase of another piece of land expecting the amount from the sale of their C.R.P. No. 636/2014 -6- property in favour of the revision petitioner. 10. The learned counsel for the revision petitioner argued that the court below is erred in finding that there is breach of agreement on the part of the revision petitioner, and that the question of breach of contract committed by the revision petitioner and the genuineness of Ext.B1 document are matters to be considered after taking evidence. 11. In fact, the property was attached by taking recourse to Order XXXVIII Rule 5 of the Code of Civil Procedure. The provisions of Order XXXVIII Rule 5 CPC is discussed in detail in the decision in _Kuriakose v. Krishnankutty Nair_ reported in 2017(2) KLT 543. Order XXXVIII Rule 5 of CPC enables the court to call upon the defendant to furnish security or to show cause. Order 38 Rule 6(2) enables the court to adjudicate any objection raised by the defendants in answer to show cause notice either by lifting the attachment or by making such other order as it thinks fit and to adjudicate the question whether the property is sufficient or not. 12. Order 38 Rule 8 enables a stranger or a claim petitioner to raise any claim over the property attached before judgment. The remedy available under Order XXXVIII Rule 8 is so exhaustive. The claim petitioners/third persons are governed by Rule 8 of Order XXXVIII of CPC; but the defendants are governed by Rule 6(2) of Order XXXVIII. The scope of attachment under Order XXXVIII Rule 5 of CPC is to secure the decree that may be passed against the original defendant in which C.R.P. No. 636/2014 -7- only the property owned by the defendant alone can be attached. At the same time, it is well within the authority of the defendant to raise objection regarding the ownership of the property or any alienable interest over it; but such objection can only be adjudicated under Order XXXVIII, Rule 6(2) of CPC. In this case, the court below has passed an order finding that there was infringement on the part of the revision petitioner and accordingly disallowed the prayer for attachment of the petition schedule property. It is a general rule that when the plaintiff files a suit for return of advance amount and the property will be attached, the respondent raises a contention that he has no ownership over the property and he has no alienable interest over the property. In this case, it is an admitted fact that the plaintiff has paid Rs.5,00,000/as advance amount and he can at any time realise that amount by charging upon the plaint schedule property. The finding entered by the court below is equivalent to passing of a decree in this case. The payment of an amount of Rs.50,000/- alleged to have paid subsequent to the payment of advance amount is disputed. The Additional Munsiff ought to have gone through the provision and applied her mind before passing such an order. The proceedings under Order XXXVIII CPC is precautionary in nature and not to defeat the decree by an act of defendant by selling and alienating the property belonged to him. Though it is attached to a suit instituted, it has nothing to do with the C.R.P. No. 636/2014 -8- dispute involved in the suit or the decree that may be passed in the suit. 13. The respondents have raised a contention that they have entered into another agreement with a third party as is evident from Annexure B1 document and pleaded that they have sustained liquidated damages. Anyway, these are the matters to be considered after taking evidence. Unless and until the matter is finally decided by analysing the evidence adduced by both sides, the attachment effected on the property cannot be lifted. Therefore, the order passed by the court below is erroneous, unjust and interference is warranted. Accordingly, the order dated 27.09.2014 passed by the Munsiff's Court, Muvattupuzha in I.A. No. 1843 of 2014 in O.S. No. 417 of 2014 is set aside and the attachment is reinstated. Since the suit is of the year 2014, the learned Munsiff is directed to expedite the suit within three months from the date of receipt of a copy of this order. Accordingly, the revision is disposed of. **ANNIE JOHN, JUDGE.** _Rv_ C.R.P. No. 636/2014 -9-