KOYAKUTTY Vs. NORTECH INFONET PVT. LTD

JUDGEMENT

(1.) Petitioner is the plaintiff in OS.No.39 of 2015 on the files of the Additional Sub Court, North Paravur. the petitioner had entered into an agreement for sale with the 1st defendant on 30/12/2013. As per the agreement, the petitioner was to purchase plaint A scheduled property from the first defendant, by exchanging plaint B schedule property owned by the petitioner and additionally paying an amount of Rs.1,25,00,000.00 towards sale consideration. The petitioner paid the amount of Rs.1,25,00,000.00 within time and called upon the defendant to execute the sale deed. The defendants failed to accede to the request. Hence, the suit was filed seeking the following reliefs;

(2.) The defendant entered appearance and filed Exhibit P2 written statement, admitting the agreement and admitting to have received Rs.1,25,00,000.00 from the plaintiff towards the agreed balance sale consideration for A schedule property and stated that they had availed a loan by mortgaging A schedule property. In the light of the categorical admission in the written statement regarding receipt of Rs.1,25,00,000.00 and the averment that the defendants had mortgaged A schedule property as security for the loan availed by them. Thereupon, the petitioner filed Exhibit P3 interlocutory application under Order 23 Rule 1 of CPC, for permission of the trial court to abandon the relief of specific performance. The court below granted the permission sought for. While so, the suit was listed for trial and decreed ex parte vide Exhibit P4 judgment. Thereafter, the ex parte decree was set aside at the instance of the defendants and the suit listed for trial to 3/1/2017. On that day, the petitioner filed Exhibits P5 and P6 interlocutory applications, the former under Order 12 Rule 6 for passing a decree permitting the plaintiff to recover the admitted amount of Rs.1,25,00,000.00, and the latter, to remove the case from the list. The respondents filed objections to the applications and by Exhibit P8 order, trial court dismissed the Exhibits P5 and P6 applications, holding that the question as to who had committed the breach is relevant for determining the issues involved in the suit and as the objections raised by the defendants go to the root of the case, it is not proper to exercise the discretion under Order 12 Rule 6. Hence this writ petition, challenging Ext. P8.

(3.) Advocate Roshen D Alexander, learned Counsel for the petitioner argued that in view of the categorical admission in the written statement of having received Rs.1,25,00,000.00 towards sale consideration, the court below ought to have passed a decree permitting the petitioner to recover the admitted amount. It is pointed out that, as the petitioner's application for withdrawing prayers A and B was allowed, all that was left for the trial court to consider, after granting a decree for the admitted amount, was the prayer for damages of Rs.15,00,000.00 for the loss sustained due to non-performance of the contract. It is contended that the question as to who among the parties had committed the breach assumes relevance only in relation to the claim for damages. According to the learned counsel, no contention, which goes to the root of the case, was raised by the defendants. The admission in the pleading made it an appropriate case for exercising the discretion under Order XII Rule 6. To buttress the argument, reliance is placed on the decisions in Uttam Singh Duggal and Co. Ltd v. United Bank of India and others [(2000) 7 SCC 120] and Karam Kapahi and others v. Lal Chand Public Charitable Trust and another [(2010) 4 SCC 753] .