Kerala High Court
P.Dasappan Nair vs A.K.Sivan Nair on 7 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 7th DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
RFA NO. 692 OF 2009
AGAINST THE JUDGMENT AND DECREE DATED 26.02.2005 IN OS 339/2000 OF
PRINCIPAL SUB COURT, KOTTAYAM
APPELLANT/DEFENDANT:
P.DASAPPAN NAIR, AGED 66 YEARS,
S/o PARAMESWARAN NAIR, RESIDING AT DEVIKRIPA,
MARIAPPALLY, MATTAMKARA, NATTAKOM VILLAGE,
MARIAPPALLY P.O.
BY ADV SRI.K.JAGADEESCHANDRAN NAIR
RESPONDENT/PLAINTIFF:
A.K.SIVAN NAIR, S/o KESAVAN NAIR,
AGED 45 YEARS, RESIDING AT GIRIJA SADANAM,
THIRUNAKKARA KARA, KOTTAYAM VILLAGE, KOTTAYAM P.O.
BY ADV SRI.RAJEEV V.KURUP
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA No.692 of 2009 2
JUDGMENT
This appeal is pertaining to non-grant of reasonable
compensation alleged to have been sustained by the
defendant and also the compensation pre-estimated and
included in the contract for sale, while granting recovery
of advance amount.
2. The advance amount originally comes to
Rs.1,00,000/-. Later on, another amount of Rs.1,00,000/-
was also received under a contract for sale. It is not
under dispute. Hence, a decree was granted for return of
the said amount from the defendant. The grievance of the
defendant is that there is a pre-estimate of damages to the
tune of Rs.50,000/-, in the event of non-performance of the
part of contract by the plaintiff and the contract could
not be performed due to the fault of the plaintiff. The
time was made as the essence of the contract since the
property was agreed to be sold for meeting the construction
expenses of a residential house in the property of the
defendant. Due to the default of the plaintiff, he was
forced to take bank loan and to sell the gold ornaments
belonged to him. Now he is incurring huge interest over
the bank loan.
3. It is submitted by the learned counsel for the
plaintiff that he refused to perform his part of contract
because of the reason that he was under the impression at
the time of alleged contract that there is sufficient open
space at the front side of the building for parking two
wheeler. Such an impression was created at the time of
contract for sale as there was some open space in front of
the house. But later on, it is learnt that the open space
did not belong to the defendant. I am at a loss to
understand even the case advanced by the plaintiff for not
performing his part of contract. What is agreed to be sold
is an extent of 2.55 Ares of property made mentioned in the
contract. The property is so far not measured in order to
ascertain whether there is reduction in extent and no
attempt was made in that behalf by the plaintiff either in
the suit or otherwise, but simply raised a ground that he
was under an impression that there is more open space at
the front side of the house situated in the property to be
sold. This would show that it is the plaintiff who had
committed the default in performing his part of the
contract. Necessarily, the pre-estimate done in the
contract for sale should be granted by way of compensation.
In fact, it reflects a reasonable compensation while
taking into consideration the attending circumstances based
on the legal position settled by the Apex Court in Fetch
Chand v. Balkishan Dass [1963 KHC 631 = AIR 1963 SC 1405]
and this court in Micheal v. Sebastian and others [2017 (4)
KHC 52 (DB)]. Hence, the decree and judgment of the trial
court is modified by granting a decree of return of
Rs.1,50,000/- (Rupees one lakh fifty thousand only) with
interest @ 6% per annum from the date of suit till the date
of realization from the defendant and charged upon the
property.
The appeal is allowed in part accordingly. No cost.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
APPENDIX
APPELLANT'S ANNEXURE:
ANNEXURE 1 : TRUE COPY OF THE WRITTEN STATEMENT IN OS 339/2000.
// TRUE COPY //
P.A. TO JUDGE
