GEORGE,MANAGING PARTNER Vs. MONCY DANIEL

JUDGEMENT

(1.) The non-suited plaintiff in a suit for return of advance money has filed this appeal against the judgment dtd. 31/5/2004 of the III Additional Sub Court, Ernakulam.

(2.) The appellant entered into an agreement with the respondent on 13/4/2000 for the purchase of 2 Acres and 61 cents of land for a sale consideration of Rs.1,48,00,000.00. The agreement was reduced into writing on the same day and an advance sale consideration of Rs.5,00,000.00 was paid to the respondent. As per the terms of agreement, the sale deed ought to have been executed within six months, with the appellant paying the balance sale consideration, and the respondent convincing the appellant about the extent and non-liability of the property, and conveying the prior title deeds. The appellant would allege that the respondent failed to get the property cleared off encumbrance and to convince him about the extent of the property, and to hand over the prior title deeds. The respondent, on the other hand, contended that the appellant was not ready and willing to perform his part of the agreement and hence he issued a notice on 23/10/2000 granting a further period of one week from that date for the due performance of the agreement. To the above notice, the appellant sent a reply notice on 7/11/2000 demanding back the advance of sale consideration paid, stating the reason that the respondent did not fulfil his part of the agreement by getting the property cleared off encumbrance and handing over the prior title deeds. As the respondent did not return the advance money as demanded by the appellant, the suit was instituted by the appellant.

(3.) Before the Trial Court, the respondent raised the same contention that the sale did not materialise due to the failure of the appellant to make payment of the balance sale consideration and to perform his part of the agreement. He also contended that the advance sale consideration received from the appellant was utilised by him for the payment of advance for purchase of property from a person by name Shibulal by virtue of an agreement executed on 16/5/2000, and that the above amount was forfeited by that person since the respondent was not able to mobilise the balance sale consideration which he expected from the appellant in connection with the sale of the property to him. Accordingly, the respondent contended that the appellant is not entitled for the return of advance money since it has to be treated as the loss suffered by the respondent inconnection with the failure of the transaction with the appellant. It was the further contention of the respondent before the Trial Court that the appellant was disentitled to claim the aforesaid amount since there was no rescission of contract.