FREDERICK PAUL MANOHAR, AGED 64 YEARS, S/O GABRIYAL, PANAKKAL HOUSE, PALLIPPURAM VILLAGE, PALLIPURAM P.O., ERNAKULAM DISTRICT Vs. MOHANAN S/O. NARAYANAN, AGED 56 YEARS, VARISHERY HOUSE, PALLIPPURAM VILLAGE, CHERAI MURI, KOCHI TALUK, ERNAKULAM DISTRICT

JUDGEMENT

(1.) This petition has been filed by the petitioner challenging Exts.P7 and P8 orders passed by the court below in I.A. 835/2014 and I.A. 1793/2016 in O.S.453/2011 on the file of the Principal Sub Court, North Paravur under Art. 227 of the Constitution of India.

(2.) It is alleged in the petition that the respondent filed Ext.P1 suit as O.S. 451/2011 on the file of the Sub Court, North Paravur, claiming return of advance amount, which was said to have been paid on the basis of an agreement entered into between the parties in respect of sale of a property belonging to the defendants, who is the petitioner herein. The matter was referred to adalat and in the adalat it was settled evidenced by Ext.P2, whereby the parties have agreed that an amount of Rs. 12,55,000.00 has already been paid and has been acknowledged and if further amount of Rs. 8,45,000.00 is paid by the plaintiff on or before 23.07.2012 and get the document executed by the defendant. It is also mentioned in the agreement that, if the defendant had violated the condition, then the plaintiff can move the court for appropriate reliefs to execute this document. Thereafter the plaintiff filed I.A.835/2014 before Sub Court, under Sec. 28(3) of Specific Relief Act for accepting the balance consideration of Rs. 7,15,000.00 on the allegation that an amount of Rs. 50,000.00 was paid on 19.07.2012 and another sum of Rs. 80,000.00 was paid during Aug., 2013 and thereafter he issued a notice dated 14.02.2014 allowing the defendant ten more days time to execute the sale deed. He had sent a reply with false contentions, that prompted him to file the application by depositing Rs. 7,15,000.00 and directing the defendant to execute the document. If he fails to execute the document requesting the court to execute the document. The respondent entered appearance and filed Ext.P4 counter denying the allegations and also contending that he had received an amount of Rs. 50,000.00, but denied the payment of Rs. 80,000.00 claimed by the plaintiff in that application. He had also contended that the since the time expired as provided in the award, the petitioner has no right to file the application, but he can only ask for the return of the amount as claimed in the suit, the right to file claim for execution of document is lost to the petitioner. Earlier the court below passed Ext.P5 order without considering the contentions and directed the plaintiff to produce draft copy of the sale deed and which was verified and approved and posted for registering the document and produce the original sale deed executed on 5.7.2016. That order was challenged by the petitioner by filing O.P.(C)1618/2016 before this court and this court by Ext.P6 judgment disposed of the same directing the court below to consider the objections and pass a reasoned speaking order and remitted the case to the court below.

(3.) It is thereafter, the petitioner filed I.A. 1793/2016 under Sec. 28(1) of the Specific Relief Act for rescission of contract and court below had considered both the applications together and disposed of the same by separate orders evidenced by Exts.P7 and P8, allowing the petition filed by the plaintiff to receive the balance amount and execute the document and dismissed the application filed by the petitioner for rescission of contract and both these orders have been challenged by the petitioner by filing this petition. Since the respondents have entered appearance through Sri. K.R. Vinod, this court felt that the petition can be admitted and disposed of on merit itself today.