RAJAN Vs. PADMAVATHY GOPALAN NAIR

JUDGEMENT

(1.) Defendant in O.S. 528 of 2005 on the file of Additional Munsiff Court, Palakkad is the appellant, Plaintiffs are the respondents. The suit was filed by the respondents through their power of attorney holder for realisation of the advance of Rs. 40,000/- paid under Ext. A1 agreement for sale. The appellant resisted the suit contending that though first respondent authorised the power of attorney holder to institute the suit, as admitted in the plaint, second respondent has only orally authorised the person to institute the suit and without a written authority, the suit could not be instituted and therefore the suit is not maintained Appellant also contended that though he executed Ext. A1 agreement for sale and received Rs. 40,000/- as advance, he is not liable to repay the advance amount as he was always ready and willing to perform his part of the agreement and sale deed was not executed due to the failure of the respondents to perform their part of the contact. Learned Munsiff on the evidence found that first respondent has authorised the power of attorney holder to institute the suit by Ext. A3 power of attorney and though second respondent has only orally authorised the first respondent as there is no necessity to have a written authority as held by this court in Narayanan Nair v. John Kurien,1988 1 KerLT 673 and the suit is maintainable. Learned Munsiff on the evidence found that appellant has admitted execution of Ext. A1 agreement as well as receipt of Rs. 40,000/- as part of the sale consideration and the agreement was not performed Learned Munsiff also found that though appellant is entitled to forfeit the advance amount, it could only be subject to the provisions of Section 74 of the Indian Contract Act and appellant did not establish that he sustained any loss and therefore the respondents are entitled to realize Rs. 40,000/- paid as advance.

(2.) Appellant challenged the decree and judgment before District Court, Palakkad in A.S. 112 of 2008. Learned Additional District Judge on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

(3.) When the appeal came up for admission, notice before admission was ordered. After respondents appeared, on submission that there is a chance for settlement, the case was referred to High Court Permanent Lok Adalath. The appeal was subsequently returned as it was not settled at the Adalath.