BETTS WARUNNY Vs. FRANKLIN D. NORNHA AND ORS.

JUDGEMENT

(1.) HEARD the learned counsel for the appellant and the respondent.

(2.) THESE appeals are heard and disposed of by this common judgment. The appellant in R.F.A. No. 49/2009 was the plaintiff and appellant in R.F.A. No. 42/2009 was the defendant. The case of the plaintiff was that he had entered into an agreement with the defendant on 10.5.1996 for purchase of certain standing timber grown in 22.92 acres of land in Sy. No. 313/2p2 belonging to the defendant, situated at Garvale village of Somwarpet Taluk, for a price of Rs. 30,00,000/ - shown by the defendant to the plaintiff. The plaintiff is said to have paid an advance of Rs. 15,00,000/ - under the said agreement. Clause -12 of the agreement stipulated that the defendant was to provide clear title in respect of trees and that if the assurance given was found to be erroneous, the defendant was liable to pay damages. Clause -13 provided for refund of the advance amount and like sums as liquidated damages if the terms of the agreement are not adhered to. Clause -14 provided that if for any reason, the felling order was not issued by the Competent Authority, due to change in policy and on that account if the plaintiff was unable to fell and remove the standing timber, the defendant was liable to refund the advance amount without interest.

(3.) THE defendant had entered appearance and had filed his written statement denying the plaint averments and alleging that the suit was barred by time and that it was not maintainable in law. He had also averred that the plaintiff had perused the records, title deeds, surveyed the lands and it is only on inspection of the trees, had entered into the agreement and had paid the balance amount of Rs. 15,00,000/ - on different dates and that the defendant had executed a power of attorney and also signed other documents required, enabling the plaintiff to secure felling the permission from the department, apart from furnishing other records which the plaintiff had requested for, to enable him to obtain the felling permission. Though the plaintiff had claimed that he had to fell and remove the trees, had failed to obtain the felling permission from the Department on account of negligence and an indifferent attitude which caused irreparable loss to the defendant. The defendant who was awaiting clearance of the trees in order to improve his coffee estate has suffered damages on account of failure on the part of the plaintiff to perform his part of the contract and the loss was estimated at Rs. 25,00,000/ -, which the defendant sought to reserve his right to claim. It was further stated that the plaintiff had admitted his failure to perform his part of the contract and requested for refund of the advance amount. Accordingly, it was on such a request that the agreement stood cancelled and on the further promise of the plaintiff that he would arrange alternative buyers for the standing timber. It is on the belief that the plaintiff would secure other customers, and as a mark of gesture and goodwill, the defendant had stated that he would refund the amount. Therefore, the question of refund of the amount does not arise as there was a clear breach on the part of the plaintiff.