PIRAMU CHELLAMMA OF KUZHIVILAKATHU VEEDU Vs. RAMACHANDRAN PILLAI

JUDGEMENT

(1.) The 3rd defendant who is one of the legal representatives of the 1st defendant has preferred this appeal against the decree allowing return of the advance paid by the plaintiff to the 1st defendant under a contract for sale which was not carried out. Ext. P1 is the contract for sale dated 29-30-1123 in which the 1st defendant undertook to discharge a mortgage then subsisting on the property and to convey the property free of encumbrance within a month of the date. Ext. D2 is a notice dated 22-4-1123 issued by the 1st defendant after redeeming the aforesaid mortgage on 13-4-1123. The endorsement of service by the postman shows that it was refused by the plaintiff. However, on 10-5-1123 the plaintiff in his turn issued a notice to the 1st defendant demanding specific performance of the contract. But no reply thereto was given by the 1st defendant. Parties seem to have remained quiet till 11-9-1124 when the 1st defendant executed a mortgage (Ext. P3) of the property for Rs. 5000 in favour of her son inlaw. Thereafter on 1-12-1124 the plaintiff demanded specific performance of the contract again by a notice, Ext. D4, to which the 1st defendant replied by Ext. P4 on 23-12-1124 expressing her readiness to execute the conveyance. Nothing was mentioned in Ext. P4 of her having executed the mortgage in favour of her son inlaw. The matter was again allowed to He over till 27-6-1951 when the 1st defendant gifted the property to the 3rd defendant. This suit was instituted on 14-11-1953 corresponding to 29th Thulam 1129, for refund of the amount of Rs. 3000 advanced under Est. P1, with interest from date of the contract till date of payment. The 1st defendant contended that the plaintiff was entitled only to insist on specific performance of the contract and not to claim refund of the advance paid by Mm, and that the amount advanced under Ext. P1 was of the nature of an earnest not liable to be refunded. The Court below has decreed the suit.

(2.) As the contract has fallen through, and the consideration for which the payment was made at the time of the contract for sale has failed totally, the 1st defendant had no right to retain the amount any further with her. Admittedly the 1st defendant had gifted the property to the 3rd defendant and made it impossible on her part to convey it to the plaintiff as per the contract, even though in the written statement, perhaps seeing that the suit was not for specific performance of the contract, she had stated that a claim for specific performance was the sole remedy of the plaintiff. To test the bona fides of her plea I suggested to counsel for the plaintiff to accept the conveyance of the property as per the contract and asked the appellant if she can convey the property to plaintiff. Counsel for the appellant defendant expressed inability to do so.

(3.) The contention that the amount advanced under Ext. P1 was earnest money is not borne out by the terms and recitals of Ext. P1. There is no clause in Ext. P1 for forfeiture of the advance paid in case the contract fell through by the fault or default of the plaintiff. In the absence of an express provision to that effect, the amount can only be part of the sale consideration and when the sale became impossible by the act of the defendant she ought to refund the same forthwith.