A.S. No. 428 of 2000 (A). Case: Varkey Thomas Vs G. Vijayendra Kurup and Ors.. High Court of Kerala (India)

Case NumberA.S. No. 428 of 2000 (A)
CounselFor Appellant: T.V. George, Adv. and For Respondents: T.P. Varghese, Adv.
JudgesV. Chitambaresh and Sathish Ninan, JJ.
IssueIndian Contract Act, 1872 - Sections 73, 74, 75; Transfer Of Property Act, 1882 - Sections 55(1)(a), 55(1)(b), 55(6)(b)
Citation2017 (1) KLT 483
Judgement DateJanuary 23, 2017
CourtHigh Court of Kerala (India)


V. Chitambaresh, J., (At Ernakulam)

1. The suit is one for return of the amount paid as advance pursuant to Ext. A1 agreement dated 14.9.1992 executed between the plaintiff on the one part and defendant Nos. 1 to 3 on the other part. The defendants agreed thereunder to sell 5.43 acres of land with a building thereon to the plaintiff at the rate of ` 1950/- per cent and the period for performance was fixed as four months. It is not in dispute that the defendants received a sum of ` 1,10,000/- as advance at the time of execution of Ext. A1 agreement itself. The balance sale consideration was to be paid at the time of execution of the sale deed after satisfying the conditions in Ext. A1 agreement.

2. The plaintiff contended that the documents of title were not handed over by the defendants and that the details of some of them were left blank in Ext. A1 agreement. The property on measurement was found to be having a lesser extent of 4.61 acres as against 5.43 acres agreed upon even though centage value was fixed. It later came to light that few others (one of them being a minor) had also right over the property which was not disclosed in Ext. A1 agreement.

3. The plaintiff thereupon repudiated the contract by Ext. A9 notice dated 23.12.1992 and has filed the suit for return of the sum of ` 1,10,000/- paid as advance. The defendants contended that they were prepared to execute the sale deed at all times and that it was the plaintiff who committed the breach. The defendants added that the sum of ` 1,10,000/- paid as advance is earnest money liable to be forfeited as per the terms of Ext. A1 agreement. The defendants pointed out that they have suffered damages on account of the breach of the contract and that the amount received has been appropriated.

4. The court below has found that it was the plaintiff who committed breach of the contract in the failure to get the sale deed executed in time after paying the balance sale consideration. The court below also found that that the defendants are not obliged to return the amount received as advance in the circumstances on the explicit terms of Ext. A1 agreement. The plaintiff has come up in appeal contending inter alia that the court below has not adverted to the provisions of Sections 73 and 74 of the Contract Act, 1872.

5. We heard Mr. T.V. George, Advocate on behalf of the appellant/plaintiff and Mr. Philip. T. Varghese, Advocate on behalf of the respondents/defendants.

6. It is in evidence that one Sarojini Amma and the progeny in her thavazhi who had right over the property had not joined in the execution of Ext. A1 agreement for sale. The fact that the aforementioned persons had right in the property and had not joined in the execution of Ext. A1 agreement is well conceded. But the plea of the defendants is that Sarojini Amma has executed Ext. B2 power of...

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