PAMPARA PHILIP Vs. KOORITHOTTIYIL KINHI MOHAMMED

JUDGEMENT

(1.) This is an appeal preferred against the decree in O.S. No. 126 of 1990 of the Sub Court, Kozhikode and also as against the counter claim filed by the defendant in the said case. The suit was one for return of advance amount of Rs. 14,000/- and some other amount due to the plaintiff. It is the case of the plaintiff that defendant agreed to sell a Jeep bearing Regn. No. KED 3290, a 1987 model and therefore he agreed to purchase it for Rs. 1,00,500/-. As per the agreement, an amount of Rs. 14.000/- was paid as advance on the date of agreement. An amount of Rs. 61,000/- was to be paid on 31-1-1990 and the balance amount of Rs. 25.500/- was to be paid on 28-2-1990. As the plaintiff wanted to raise some loan he got the document particulars from the defendant and forwarded to the financer and thereafter the financer informed him that the vehicle was a 1986 model. The plaintiff had entered into an agreement with the defendant bona fidely believing that the jeep is of 1987 model as represented by the defendant and that was the reason for the purchase of the jeep. It is the case of the plaintiff that the defendant has misrepresented and therefore he is entitled to the return of the advance amount paid by him.

(2.) On the other hand, the defendant would contend that it is not so and the plaintiff has perused the document even before executing the document and there has been no misrepresentation, whereas on the other hand, he had used the vehicle in such a way that it was damaged, the defendant has to pay money and further he had produced the bills for the repairs and there was no misrepresentation or breach of contract. The plaintiff had used the jeep and derived income. He has filed a counter-claim for the damages caused to the jeep and also for the deprivation of profit for a long time.

(3.) In the trial Court, P.Ws. 1 and 2 and D.Ws. 1 and 2 were examined and Exts. Al to A3 and Exts. Bl to B9 were marked. On an analysis of the materials, the trial Court granted a decree for return of advance amount and negatived the prayer for counter-claim. It is against that decision the present appeal is filed.