Kerala High Court
Viji Soy vs P.C.Cheriyan on 13 February, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:11832
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
RFA NO. 170 OF 2018
AGAINST THE DECREE AND JUDGMENT DATED 29.11.2017 IN OS NO.30
OF 2014 OF SUB COURT, THODUPUZHA
-----
APPELLANT/DEFENDANT:
1 P.C.CHERIAN,
S/O.CHERIYAN, RESIDING AT PARAYIDATHIL HOUSE,
CHERUMUTTAPPUZHA KARA, VAZHAKALA VILLAGE,
KANAYANNOOR TALUK, ERNAKULAM DISTRICT.
2 MATHEW JOSEPH,
S/O.JOSEPH, RESIDING AT THOTTUMKAL HOUSE, KOLANY KARA
KOLANI P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK,
IDUKKI DISTRICT.
3 A.M.RAJAN,
S/O.MATHEW GEORGE, RESIDING AT ANAMKOTTU HOUSE,
KOLANY KARA KOLANI P.O., THODUPUZHA VILLAGE,
THODUPUZHA TALUK, IDUKKI DISTRICT.
BY ADVS.
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SMT.M.R.MINI
SRI.ASHWIN SATHYANATH
SRI.ROHIT NANDAKUMAR
2025:KER:11832
RFA NO. 170 OF 2018 -2-
RESPONDENT/PLAINTIFF:
VIJI SOY
W/O.SOY SEBASTIAN, RESIDING AT KAIPPANANICKAL HOUSE,
MUNDEKALU KARA, THODUPUZHA P.O., THODUPUZHA VILLAGE,
THODUPUZHA TALUK, IDUKKI DISTRICT-685584.
(THE SOLE RESPONDENT VIJI SOY IS REPRSENTED BY HER
POWER OF ATTORNEY HOLDER, SEBASTIAN SOY KAIPPAN, S/O
MANI SEVASTIAN, AGED 42 YEARS, KAIPPANANICKAL HOUSE,
THODUPUZHA P. O., MUNDEKALLU KARA,THODUPUZHA VILLAGE,
IDUKKI DISTRICT VIDE ORDER DATED 5/9/2018 ON MEMO DATED
10/8/2018)
BY ADVS.
A.T.ANILKUMAR
V.SHYLAJA
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
13.02.2025, ALONG WITH RFA.202/2018, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:11832
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
RFA NO. 202 OF 2018
AGAINST THE DECREE AND JUDGMENT DATED 29.11.2017 IN OS NO.30
OF 2014 OF SUB COURT, THODUPUZHA
-----
APPELLANT/PLAINTIFF:
VIJI SOY,
W/O. SOY SEBASTIAN, AGED 41 YEARS,
KAIPPANANICKAL HOUSE, MUNDEKALLU KARA, THODUPUZHA P.O.,
THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT,
REPRESENTED BY POWER OF ATTORNEY HOLDER,
SEBASTIAN SOY KAIPPAN, S/O. MANI SEBASTIAN, AGED 42
YEARS, KAIPPANANICKAL HOUSE, THODUPUZHA P.O.,
MUNDEKALLU KARA, THODUPUZHA VILLAGE, IDUKKI DISTRICT.
BY ADVS.
A.T.ANILKUMAR
V.SHYLAJA
RESPONDENTS/DEFENDANTS:
1 P.C.CHERIYAN
S/O. CHERIYAN, AGED 65 YEARS, PARAYIDATHIL HOUSE,
CHERUMUTTAPPUZHA KARA, VAZHAKALA VILLAGE, KANAYANNOOR
TALUK, ERNAKULAM DISTRICT, PIN - 682 312.
2 MATHEW JOSEPH, S/O JOSEPH,
AGED 50 YEARS, THOTTUMKAL HOUSE, KOLANI KARA, KOLANI
P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI
DISTRICT, PIN - 685 606.
2025:KER:11832
RFA NO. 202 OF 2018 -2-
3 A.M. RAJAN
S/O. MATHEW GEORGE, AGED 45 YEARS, ANAMKOTTU HOUSE,
KOLANI KARA, KOLANI P.O., THODUPUZHA VILLAGE,
THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685 606.
BY ADVS.
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SMT.M.R.MINI
SRI.ASHWIN SATHYANATH
SRI.ROHIT NANDAKUMAR
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
13.02.2025, ALONG WITH RFA.170/2018, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:11832
SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. Nos.170 & 202 of 2018
= = = = = = = = = = = = = = = = = =
Dated this the 13th day of February, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for return of advance sale consideration
paid under an agreement for sale was decreed by the
trial court. The defendants are in appeal in RFA No.170
of 2018. Challenging the declining of costs, the
plaintiff has filed RFA No.202 of 2018.
2. Ext.A17 agreement for sale dated 30.07.2012 was
entered into between the parties. The property involved
was 87.81 Ares. The total sale consideration fixed was
₹ 5,52,00,000/-. According to the plaintiff, towards
advance sale consideration he had paid a total amount of
₹ 2,76,00,000/-, payments having been made on various
dates. The period for performance, though initially for
eight months, was later extended till 30.09.2013.
Alleging failure on the part of the defendants to honour
R.F.A. Nos.170 &
202 of 2018
the agreement the suit was filed.
3. The defendants admitted the agreement for sale.
However, the claim of the plaintiff that an amount of
₹ 2,76,00,000/- was paid towards advance sale
consideration was disputed. According to the defendants
the plaintiff had paid only an amount of
₹ 2,10,00,000/-. It was contended that the defendants
were always ready and willing to perform their part of
the contract and that it was the plaintiff who committed
breach. It was also pleaded that consequent on the
breach of the contract by the plaintiff, the defendants
has sustained damages for ₹ 10,00,000/-.
4. The trial court held that the evidence on record
indicates payment of only ₹ 2,10,00,000/- towards
advance sale consideration, and granted a decree for
return of the same with interest. There was no order as
to costs. Hence these appeals by both sides.
5. We have heard Sri.T.Krishnanunni, the learned
senior counsel for the defendants and Sri.A.T.Anilkumar,
R.F.A. Nos.170 &
202 of 2018
the learned counsel on behalf of the plaintiff.
6. The defendants would raise a contention that the
present suit is barred under Order II Rule 2 of the Code
of Civil Procedure(CPC) in the light of the earlier suit
filed by the plaintiff as OS 174/2013 for prohibitory
injunction against alienation and against inducting
strangers. The said suit was subsequently dismissed as
withdrawn.
7. It is pertinent to note that there is no
pleading in the written statement with regard to the bar
of the suit under Order II Rule 2 CPC. No issue was also
raised with regard to the same. A finding on bar of suit
under Order II Rule 2 necessarily involves appreciation
of the factual matrix and the cause of action involved.
The Apex Court and this Court has held that with regard
to Order II Rule 2 CPC, proper plea and evidence are
necessary.(See Sundaram @ Meenakshisundaram R.M. v. Sri.Kayarohanasamy
& Neelayadhakshi Amman Temple (Through its Executive Officer) [2022 SCC OnLine
SC 888], Aboobacker A.M. v. Sumathi [2023 KHC 873], Coffee Board v. Ramesh
R.F.A. Nos.170 &
202 of 2018
Exports Ltd. (M/s) [(2014) 6 SCC 424]). Their being no plea or
issue, such contention cannot be entertained at this
stage. Therefore, the said argument is only to be
negatived and we do so.
8. A perusal of the trial court judgment indicates
that before the trial court the real dispute between the
parties was with regard to the quantum of the advance
sale consideration paid; while according to the
plaintiff it is ₹ 2,76,00,000/- according to the
defendants it is only ₹ 2,10,00,000/-. On the evidence
the trial court has found that the advance sale
consideration paid is only ₹ 2,10,00,000/-. There is no
challenge against the said finding by the plaintiff.
9. The receipt of ₹ 2,10,00,000/- towards advance
sale consideration having been admitted by the
defendants, unless the defendants are able to prove that
they had suffered any damages consequent on the breach
of contract by the plaintiff, they are bound to repay
the said amount. Incidentally it is also to be noticed
R.F.A. Nos.170 &
202 of 2018
that, going by the case set up by both sides they were
ready and willing to perform their respective part of
the contract; but the contract did not go through
consequent on the dispute between them with regard to
the quantum of the advance sale consideration paid. The
availability of funds with the plaintiff, to go ahead
with the transaction, has been proved through Exts.A3 to
A16 documents. Hence it could not be held that there was
willful breach of contract by the plaintiff. At any
rate, the defendants being unable to prove that they
sustained any damages consequent on the breach, they are
bound to return the advance sale consideration received
by them with interest.
10. The trial court has awarded only 9% interest
and that too from the date of suit till date of decree,
and thereafter at 6% which is only reasonable. The said
decree warrants no interference.
11. The trial court after granting a decree for
return of the advance sale consideration directed thus,
R.F.A. Nos.170 &
202 of 2018
"The parties shall bear their respective costs" . Of course, grant of
cost is a matter of discretion. However, the exercise of
discretion cannot be arbitrary. The plaintiff had paid
an amount of ₹ 10,73,073/- before the trial court
towards court fees alone. Having granted a decree in
favour of the plaintiff there was no reason why the cost
of the plaintiff was negatived. A reading of the
judgment of the trial court reveals that there has been
no discussion by the court with regard to the grant of
costs. Cost was negatived in the decretal portion, as
was noticed above. Though generally appeal will not lie
against an order of costs, it is not an invariable rule.
(See P. Sundara Bhat v. Duggamma & ors. 2017 (3) KLJ 674) . The plaintiff
has preferred RFA 202/2018 challenging the declining of
costs. However, the plaintiff has limited the claim to
₹10 lakhs and the court fee has been paid accordingly.
There is no reason why the decree should not be granted
for the said amount. The plaintiff's appeal being one
against the declining of costs, we do not think that
R.F.A. Nos.170 &
202 of 2018
grant of costs in the said appeal is warranted.
In the result RFA 170/2018 will stand dismissed
with costs. RFA 202/2018 will stand allowed, but without
costs. The plaintiff shall be entitled to realise an
amount of Rs.10,00,000/-from the defendant towards
costs. The decree and judgment of the trial court will
stand modified to the said limited extent.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
