C VASABAMBAK @ C VASAVAMBAL Vs. A K ASSANKUTTY

JUDGEMENT

(1.) This appeal arises from the decree and judgment passed by the Court of the Subordinate Judge of Kozhikode on 29.07.2016 in O.S.No.308 of 2008. The appellants are the defendants therein. By the impugned judgment, the suit instituted by the respondents was decreed in part and plaintiffs 1 to 4 and 7 were held entitled to realise the sum of Rs.40,30,000/- together with interest at the rate of 12% per annum from the date of suit till the date of decree and thereafter at the rate of 6% per annum till realisation along with costs from the defendants and their assets. The prayer for a decree charged on the plaint schedule property was refused. The brief facts of the case are as follows:

(2.) Plaintiffs 1 and 2 namely A.K. Assankutty and Chalil Devadasan had admittedly entered into Ext.A1 agreement dated 10.02.2005 with the defendants whereby they had agreed to purchase and the defendants had agreed to sell, the plaint schedule property having an area of 101 cents for a total sale consideration of Rs.83,32,500/- which works out to Rs.82,500/- per cent. The plaintiffs had also admittedly paid the sum of Rs.40,30,000/- as advance sale consideration. After Ext.A1 agreement was entered into between plaintiffs 1 and 2 and the defendants, the first plaintiff entered into Ext.A4 agreement dated 18.04.2005 with Abdurahiman, the third plaintiff whereby he agreed to convey his undivided half share in the plaint schedule property to the third plaintiff. Plaintiffs 1 to 3 thereafter jointly filed the instant suit alleging that the defendants have committed breach of Ext.A1 agreement. They prayed for a decree directing the defendants to specifically perform Ext.A1 agreement and in the alternative for return of the sum of Rs.40,30,000/- paid as advance. After the suit was instituted, the second plaintiff passed away and thereupon his legal heirs were impleaded as supplemental plaintiffs 4 to 7.

(3.) Upon receipt of summons, the defendants entered appearance and filed a written statement resisting the suit. They contended that in view of the pendency of O.S.No.326 of 1987 in the Court of the Subordinate Judge of Kozhikode, pursuant to the order of remand passed by this court in A.S.No.5 of 1996 (this fact is mentioned in Ext.A1 agreement) stands in the way of the agreement being specifically performed. They also raised various other contentions including the contention that it was the plaintiffs who were at fault. As regards the agreement stated to have been entered into between plaintiffs 1 and 3, they contended that they are not bound by the terms thereof. Before the court below, on the side of the plaintiffs the first plaintiff was examined as PW1 and Exts. A1 to A4 were produced and marked. On the side of the defendants, the third defendant was examined as DW1 and the judgment of this court in A.S.No.5 of 1996 was produced and marked as Ext.B1. After considering the rival contentions and the evidence oral and documentary on record, the trial court found that the suit is bad for misjoinder of cause of action for the reason that the suit was founded also on the agreement inter se between plaintiffs 1 and 3, a copy of which was marked as Ext.A4. The court below thereafter proceeded to hold that the case of the plaintiffs that the time is not the essence of the contract is more probable and that it was the defendants who have committed breach. However, having regard to the fact that there is a cloud on the plaintiffs' title, the prayer for specific performance was declined and a decree was passed allowing plaintiffs 1 and 4 to realise the sum of Rs.40,30,000/- with interest and costs as stated above. The defendants have aggrieved thereby, filed this appeal.