HERMAN DSOUZA Vs. PRADEEP

JUDGEMENT

(1.) The genesis for this litigation is an agreement entered into between two Indians at New York in the United States of America in respect of a property situated at Arangath Road in Ernakulam of Kerala State.

(2.) The plaintiff offered to buy about 10 cents of land with buildings thereon situated at Ernakulam which belonged to the first defendant at a rate of Rs. 1,00,000/- per cent while both of them were in New York. The terms are embodied in Ext.A2 agreement followed by Ext.A3 letter and a sum of $3100 (100+1000+2000) was concededly received by the first defendant as advance. The first defendant was hesitant to honour the agreement obviously due to the inadequacy of price which prompted the plaintiff to make a higher offer towards purchase price. The plaintiff floated a fresh offer to the first defendant at the rate of Rs. 1,75,000/- per cent for the property which was not acceded to by the first defendant. The first defendant thereafter rescinded the contract and returned the sum of $3100 received as advance by a cheque which was not encashed by the plaintiff. The court below declined specific performance and granted a decree for return of the amount paid as advance also creating a charge on the property covered by Ext.A2 agreement. The first defendant died pending suit and defendants 2 and 3 being his legal heirs have been made liable to the extent of the property inherited by them. The plaintiff has impugned the decree of the court below contending inter alia that a fresh offer more beneficial to the other contracting party does not efface the original terms of the agreement.

(3.) We heard Mrs. K.A.Sanjeetha, Advocate on behalf of the appellant/plaintiff and Mr. Renju John, Advocate on behalf of the respondents/defendants 2 and 3.