MAKKARUPILLAI Vs. BABU

JUDGEMENT

(1.) This appeal is by the defendants. The suit by the plaintiff respondent was one for recovery of the advance paid by him when the parties entered into an agreement for sale of the plaint schedule properties to the plaintiff. The plaintiff contended that the defendants have received Rs. 5 lakhs as advance, the defendants have failed to execute the sale deed after receiving the balance consideration, that the defendants had not get ready to execute the sale deed and hence had breached the contract and hence the plaintiff was entitled to recover the advance paid pursuant to the contract. The defendants resisted the suit by contending that the defendants were ready and willing to perform their part of the contract and the plaintiff it was who had breached the contract. They also alternatively contended that they had themselves incurred damages because of the plaintiff withdrawing from the contract and they are entitled to claim that sum from the plaintiff. They had also suffered a loss of Rs. 50,000/- as the defendants had been prevented from tapping rubber from the property.

(2.) On behalf of the plaintiffs Exts. A1 to A5 were marked. The plaintiff was examined as PW. 1 and another witness was examined as PW. 2. On behalf of the defendants Exts. B1 to B4 were marked and the first defendant was examined as DW. 1. The Trial Court on an appreciation of the pleadings and the evidence in the case came to the conclusion that it was the defendants who had not performed their part of the contract and had committed breach of the contract. There was no serious dispute about the fact that the sum of Rs. 5 lakhs had been advanced at the time of the agreement for sale. The Trial Court found that the defendant had failed to prove that they had sustained any damage in view of the breach of the contract. The Trial Court therefore granted a decree to the plaintiff for recovery of the sum of Rs. 5 lakhs with interest at 6% per annum from the date of suit till realisation. It is this decree that is sought to be challenged in this appeal filed under S.96 of the Code.

(3.) This appeal was posted for admission in terms of R.11 and 11A of O.41 of the Code. When the matter came up, this court put to counsel for the defendants appellants as to what was the error of fact or law committed by the court below which justified an admission of this appeal which was against a decree merely for return of the advance paid pursuant to an agreement for sale of immovable property on a breach of agreement. Counsel sought time and the matter was adjourned to another day. When it came up again, counsel contended that the amount that was paid at the time of the agreement was earnest money and hence it was liable to be fortified. But it is seen to that no such contention was raised, no such plea was raised in the written statement by the defendants and there was no such issue raised or tried before the Trial Court. Counsel then submitted that the defendants had incurred damages because of the breach of the contract and hence they were entitled to compensation in terms of S.74 of the Contract Act. The finding of the Trial Court is that the defendants were guilty of breach of the contract and not the plaintiff. Nothing is shown to induce us to consider that the said finding may require reconsideration. The further finding is that there was no evidence on the side of the defendants that the defendants had incurred any damages due to the breach of the contract. Even assuming that the plaintiff was responsible for the breach, even then, the defendants had to show, if they wanted to retain the entire advance or any portion thereof as compensation, that they had infact suffered such damage. When questions were put in that behalf, counsel for the defendants could not bring to our notice any evidence which could be considered as showing that atleast an arguable point arise on this question for the purpose of deciding whether the appeal ought to be admitted or not. On the other hand, counsel for the defendants took the stand that this court has no right to dismiss a first appeal under O.41 R.11 of the Code of Civil Procedure. We find it not possible to accept this submission. This Court has certainly the power to scrutinise preliminarily whether an appeal filed before it requires to be admitted for a final hearing or not. In that context, this Court is certainly entitled to have a preliminary hearing of the appeal and it was for that purpose that the appeal was sent up for admission. The Trial Court has considered the relevant aspects and come to the conclusion that the defendants have not established that they had suffered any damages by the breach of the contract. Nothing was shown to us even to prima facie say that an arguable point atleast arises on this aspect on the pleadings and the evidence in the case. We are therefore not in position to find that there is any substance in this appeal.