KRISHNAMENON, S/O ILLATHUPARAMBIL PARAMESWARA MENON, KAITHARAM KARA, KOTTUVALLY VILLAGE, PARAVUR TALUK Vs. PRADEEP KUMAR, S/O MANGATTU VEETTIL PARAMESWARAN NAIR, KAITHARAM KARA, KOTTUVALLY VILLAGE, PARAVUR TALUK

JUDGEMENT

(1.) The appellant is the plaintiff in O.S.No.190/97 on the file of the Additional Subordinate Judge's Court, North Paravur, a suit for realisation of advance sale consideration of Rs. 2,00,000.00 paid to the 1st defendant together with interest at the rate of 18% per annum from the defendants, with charge on the plaint schedule property. The trial court by the judgment dated 15.1.2001 decreed the suit in part, allowing the plaintiff to realise a sum of Rs. 2,29,000.00 together with interest at the rate of 18% per annum from the date of suit till the date of decree and thereafter at the rate of 6% per annum till realisation with costs from the 1st defendant and his assets. Challenging the judgment and decree of the trial court to the extent of holding the 2nd defendant a bona fide purchaser and declining charge on the plaint schedule property in the hands of the 2nd defendant for the purchase money paid to the 1st defendant, the plaintiff is before this Court in this appeal.

(2.) We heard the arguments of the learned counsel for the appellant/plaintiff, the learned counsel for the 1st respondent/1st defendant and also the learned Senior Counsel for the 2nd respondent/2nd defendant.

(3.) Going by the plaint averments, on 3.9.1996 the plaintiff and the 1st defendant has entered into Ext.A1 agreement for the sale of the plaint schedule property having an extent of 15 cents in Sy.No.182/11F of Koyyuvally Village for a total consideration of Rs. 4,00,000.00, out of which Rs. 1,00,000.00 was paid as advance sale consideration on the date of execution of that agreement. The validity of the said agreement was for a period of 6 months, within which the 1st defendant had to measure out the property and convince the plaintiff as to its actual extent. The 1st defendant had also to clear encumbrances, if any, on that property and also the loan amount of Rs. 1,50,000.00 outstanding with the Agricultural Development Bank, Ernakulam. On 2.12.1996, the 1st defendant demanded a further advance of Rs. 1,00,000.00 in order to clear off the debts over the property. Accordingly, the plaintiff paid the 1st defendant a further sum of Rs. 1,00,000.00 and an endorsement to that effect was also made on the back side of Ext.A1 agreement. At the instance of the 1st defendant, the validity of Ext.A1 agreement was extended till 3.9.1997. Though the plaintiff had approached the 1st defendant for the sale of the plaint schedule property, he was not ready to pay heed to that demand. In the meanwhile, the 1st defendant executed Ext.A7 sale deed dated 13.5.1997 in respect of the plaint schedule property, in favour of the 2nd defendant, for a total consideration of Rs. 50,000.00. On 27.6.1997, the plaintiff came to know about Ext.A7 sale deed. Therefore, he filed the suit for realisation of the advance sale consideration of Rs. 2,00,000.00 together with interests and costs.