VARKEY THOMAS Vs. VIJAYENDRA KURUP

JUDGEMENT

(1.) The suit is one for return of the amount paid as advance pursuant to Ext.A1 agreement dated 14.9.1992 executed between the plaintiff on the one part and defendant Nos.1 to 3 on the other part. The defendants agreed thereunder to sell 5.43 acres of land with a building thereon to the plaintiff at the rate of Rs. 1950/- per cent and the period for performance was fixed as four months. It is not in dispute that the defendants received a sum of Rs. 1,10,000/- as advance at the time of execution of Ext.A1 agreement itself. The balance sale consideration was to be paid at the time of execution of the sale deed after satisfying the conditions in Ext.A1 agreement.

(2.) The plaintiff contended that the documents of title were not handed over by the defendants and that the details of some of them were left blank in Ext.A1 agreement. The property on measurement was found to be having a lesser extent of 4.61 acres as against 5.43 acres agreed upon even though centage value was fixed. It later came to light that few others (one of them being a minor) had also right over the property which was not disclosed in Ext.A1 agreement.

(3.) The plaintiff thereupon repudiated the contract by Ext.A9 notice dated 212.1992 and has filed the suit for return of the sum of Rs. 1,10,000/- paid as advance. The defendants contended that they were prepared to execute the sale deed at all times and that it was the plaintiff who committed the breach. The defendants added that the sum of Rs. 1,10,000/- paid as advance is earnest money liable to be forfeited as per the terms of Ext.A1 agreement. The defendants pointed out that they have suffered damages on account of the breach of the contract and that the amount received has been appropriated.