Kerala High Court
Nijith vs Dr.Dennispharmacology And Research ... on 10 January, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:1873
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 10TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946
RFA NO. 460 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 21.05.2019 IN OS NO.141
OF 2015 OF PRINCIPAL SUB COURT, IRINJALAKUDA
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APPELLANTS/DEFENDANTS:
1 NIJITH,
S/O.MANJUAMMAL, MURIYIL VELASSERY NIKLOVUS,
ELOOR VILLAGE, PARAVUR TALUK, P.O.UDYOGAMANDAL,
PIN - 683 501.
2 GLADIS,,
W/O.MANJUMMAL MURIYIL, VELASSERY LATE NIKLOVUS,
ELOOR VILLAGE, PARAVUR TALUK, P.O.UDYOGAMANDAL,
PIN - 683 501.
BY ADVS.
V.PREMCHAND
SURYA MOHAN P.(K/001967/2019)
FATHIMA SHALU S.(K/2636/2021)
RESPONDENTS/PLAINTIFFS:
1 DR.DENNIS PHARMACOLOGY & RESEARCH LABORATORIES (P)
LTD.,
REPRESENTED BY ITS DIRECTOR, DENNY DEVASSYKUTTY,
S/O.VELUTHAPILLY DEVASSYKUTTY, ROSE VILLA,
PARAPPURAMKARA, PARAPPURAM P.O.,
KIZHAKKUMBHAGAM VILLAGE,
ALUVA TALUK, PIN - 683 675.
2025:KER:1873
RFA NO. 460 OF 2019 -2-
2 DR.FRILLY DENNY,
W/O.DR.DENNY DEVASSYKUTTY, ROSE VILLA, PARAPPURAMKARA,
PARAPPURAM P.O., KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK,
PIN - 683 675.
BY ADVS.
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR
SRI.P.S.BASTIN
SRI.G.P.SHINOD
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
10.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
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R.F.A. No.460 of 2019
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Dated this the 10th day of January, 2025
J U D G M E N T
Sathish Ninan, J.
The decree for return of advance sale consideration
is under challenge by the defendants.
2. On 06.08.2012, the first defendant and his late
father executed Ext.A2 agreement for sale in favour of
the plaintiffs. The first defendant's father is no more
and his mother was impleaded as the second defendant.
Under Ext.A2 agreement, an extent of 4 acres and 91.600
cents was agreed to be sold to the plaintiff Company or
its nominee for a consideration of ₹27,000/- per cent.
On the date of the agreement an amount of ₹ 20 lakhs was
paid towards advance sale consideration. The period
fixed for performance was six months. On 08.01.2013 a
further amount of ₹ 15 lakhs was paid to the defendant.
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Under Exts.B1 to B3 Sale Deeds, a portion of the
property was sold by the defendant, at the instance of
the plaintiff, to third parties. On 18.03.2013 and
01.04.2013, the plaintiffs paid a further amount of ₹ 50
lakhs and ₹ 10 lakhs respectively, to the defendant.
Thereafter the period of the contract was extended till
30.05.2013. The total amount received by the defendant
was ₹ 95 lakhs. The price of the properties sold to
third party under Exts. B1 to B3 was ₹40,28,400/-. After
deducting the same, a further amount of ₹ 54,71,600/-
remained with the defendants as advance. Alleging that,
since the price of the properties have gone up the
defendant was protracting execution of the sale deed,
the suit was filed for return of the advance amount
remaining with the defendant, with interest.
3. The defendant admitted Ext.A2 agreement, the
execution of Exts.B1 to B3 Sale Deeds, and the receipts
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of amounts as alleged by the plaintiff except the
payment of ₹15 lakhs allegedly made on 08.01.2013. It
was contended that though the plaintiff had issued an
account payee cheque dated 08.01.2013 for ₹15 lakhs, the
defendant was asked not to present the cheque for lack
of sufficient funds to honour the same. It was contended
that the plaintiffs committed breach of contract and
that it has resulted in damages to the defendant.
4. The trial court upheld the plaintiff's claim
that the total amount paid to the defendant is ₹95
lakhs. The claim of the defendant regarding damages was
declined as it was unsubstantiated. Accordingly, the
suit was decreed for return of the balance advance
amount retained by the defendant, charged on the
property excluding the extent covered by Exts.B1 to B3
Sale Deeds.
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5. We have heard Sri.V.Premchand, the learned
counsel for the appellant-defendants and Sri.Shinod
G.P., the learned counsel for the respondents-
plaintiffs.
6. The learned counsel for the appellants contend
that the claim of the plaintiff that an amount of ₹15
lakhs was paid on 08.01.2013, cannot be accepted for the
reason that, though a cheque for the said amount was
issued by the plaintiff, the same was never encashed by
the defendant.
7. The trial court noticed that the alleged cheque,
though was produced by the defendant in the Court, was
not tendered and marked in evidence. On the other-hand,
on the reverse side of Ext.A2 agreement, the payment of
₹15 lakhs on 08.01.2013 in cash, has been specifically
endorsed. The said endorsement is marked as Ext.A2(a);
the same reads thus :-
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"Received cash Rs.1500000/- on 8/Jan/13 towards part
payment of the sale consideration as per this deed."
That the endorsement is in his handwriting is admitted
by the first defendant as DW1. The signature beneath
Ext.A2(a) is also not denied by him. There are further
endorsements on the reverse of Ext.A2; Ext.A2(b)
relating to sale of a portion of the property under
Exts.B1 to B3 Sale Deeds, Ext.A2(c) and Ext.A2(d)
extending the period of agreement twice. On no such
occasion did the defendant have any grievance with
regard to the correctness of Ext.A2(b) endorsement
regarding the payment of ₹15 lakhs in cash on
08.01.2013. Under such circumstances, the trial court
was justified in having held that the said amount was
paid by the plaintiff to the defendant.
8. The receipt of the remaining amounts as claimed
by the plaintiff is not disputed by the defendant.
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Therefore, the claim of the plaintiff that a total
amount of ₹95 lakhs was paid as advance to the
defendant, was rightly upheld by the trial court.
9. It is not in dispute that a portion of the
property was conveyed by the defendant to third parties,
under Exts.B1 to B3, on the intervention of the
plaintiff. The consideration for the sale was
₹40,28,400/-. After deducting the same, the balance
advance amount remaining with the defendant is
₹54,71,600/-. Even assuming that the plaintiff was
responsible for not further taking forward the
agreement, still, unless the defendant proves that any
damages resulted consequent on the non-performance, they
are bound to return the balance advance amount. But for
the bald claim that the non-performance resulted in
damages, no evidence with regard to the same was adduced
by the defendants. In the absence of any evidence in the
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said regard, the trial court was right in having
negatived the claim and having granted a decree for
return of the balance amount remaining with the
defendants.
10. The total amount paid to the defendant is ₹ 95
lakhs. The consideration for Ext.B1 to B3 sale deeds is
₹ 40,28,400/-. The balance advance amount remaining with
the defendant is Rs. 54,71,600/- as was noticed supra.
However, the trial court has granted a decree for
₹ 55,71,600/-. The decree could only be for
₹ 54,71,600/-.
11. The trial court has awarded interest at the
rate of 9% per annum from the date of suit till date of
decree and thereafter at the rate of 6% till
realisation. Considering the entire facts, we are of the
opinion that grant of interest at the rate of 6% per
annum from the date of institution of the suit till
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realisation would be just and proper. The decree and
judgment of the trial court is liable to be modified to
the above extent.
Resultantly, the appeal is allowed in part. The
suit will stand decreed for an amount of ₹ 54,71,600/-
with interest at the rate of 6% per annum from the date
of suit till realisation, charged on the plaint schedule
property excluding the portion covered by Ext.B1 to B3
sale deeds. Parties to bear their respective costs in
the appeal.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
