MADHAVANKUTTY Vs. SREEKUMAR T.

JUDGEMENT

(1.) THE second appeal arises from the judgment and decree of the learned Additional District Judge, North Paravur in A.S. No. 148 of 2007 allowing the respondent to recover Rs. 1,05,000.00 with interest at the rate of 6% per annum from 25.12.1999 till realization from the appellant and his assets, in reversal of dismissal of O.S. No.423 of 2004 of the Sub Court, North Paravur.

(2.) THE appellant owned 40 cents of paddy land in Survey Nos. 131/3 and 131/4. That paddy land is situated on the side of the road to the Air Port at Nedumbassery. The respondent, obviously to further his business wanted to put-up two name boards on the side of the said road taking into account the heavy traffic through the said road. Accordingly, he approached the appellant and that resulted in Ext.A1.agreement dated 25.12.1999 granting permission to put up two name boards in the property of the appellant for a period of five years. It was stipulated in Ext.A1, agreement that for installation of the name boards and its repair, maintenance etc., it will be open to the respondent and his men to enter the 40 cents. In consideration of the above, the respondent was to pay Rs.1,30,000.00 to the appellant which was readily complied. On account of raising of the level of the road and the hand-railing on either side, the respondent found it not viable to put up the name boards since that would not get vision of the passengers going along the road. He also did not get permission from the appropriate authorities to put up the name bards. The respondent was moving earth and heaven, even during 2004 to get permission to put-up the name boards but he did not get it. Thereon, he turned to the appellant and demanded repayment of Rs. 1,30,000.00 claiming that for not fault of his, he was not able to put up the name boards. That demand was naturally rejected by the appellant. Thereon the respondent filed O.S. No.423 of 2004 for refund of Rs.1,30,000.00 with interest.

(3.) BEFORE the trial court it was contended that Ext.A1, agreement had become void and the parties are discharged from liability due to frustration under Sec.56 of the Indian Contract Act (for short 'the Act'). It was contended that the appellant had made unlawful enrichment for himself by making use of the sum of Rs.1,30,000.00 which the respondent had given to him. The trial court however, found against those contentions and dismissed the suit.