K. GEORGE BABU Vs. VARGHESE

JUDGEMENT

(1.) These two appeals arise from the judgment and the decree in O.S.No.158 of 2006 on the file of Sub Court, Ernakulam. The appellant in R.F.A.No.529 of 2008 who was the defendant in the suit is the respondent in R.F.A.No.300 of 2008. The respondents in R.F.A 529 of 2008 who were the plaintiffs in the suit are the appellants in R.F.A No.300 of 2008. In this judgment the parties are referred to as plaintiffs and defendant.

(2.) The plaint schedule property having an extent of 45 cents is in the ownership and possession of the defendant. The adjoining property having an extent of 15 cents which is 'puramboke' also is in his possession. On 24.2005 he entered into an agreement with the plaintiffs for sale of the plaint schedule property and the adjoining 15 cents within six months and received from them Rs.2 lakhs towards the sale consideration. The application filed by the defendant for assignment of the 'puramboke' was under consideration of the government. The agreed price for the 'patta' land is Rs.2 lakhs per cent. Anticipating assignment the plaintiffs agreed to pay sale consideration for the 'puramboke' also at the same rate. The agreement provided that if the 'puramboke' was not assigned, the plaintiffs were not liable to pay any consideration for it. The government did not assign the 'puramboke' to the defendant. On 11.2006 the defendant sent a notice to the plaintiffs alleging that the agreement was to pay 50% of the agreed price for the 'puramboke' in case the government did not assign the property to him. He informed the plaintiffs that he was ready to sell the property only with variation. This was not acceptable to the plaintiffs. They have been ready and willing to perform their part of the contract. On these allegations they prayed for a decree for specific performance and in the alternative for refund of the purchase price paid in advance with interest at 12% per annum. In his written statement the defendant raised the following contentions. The agreement between the parties was that in case the government did not assign the 'puramboke' to him, the defendant would pay consideration at the rate of Rs.1 lakh per cent for the 'puramboke'. But when they brought to him the written agreement it was noticed that the agreement provided that in case of nonassignment of the 'puramboke', the defendant would not pay any price for it. When he protested, the plaintiffs stated that notwithstanding the clause in the agreement, they would pay consideration for the 'puramboke' at Rs.1 lakh per cent in case of nonassignment. The defendant believed it. But when the government did not assign the property, they refused to pay any price for the 'puramboke'. He was not ready to sell the 'puramboke' without any consideration. The plaintiffs are not bona fide purchasers. They are business men in real estate. They were in search of potential buyers, but they could not find potential buyers. It is false that they have been ready and willing to perform their part of the contract. As undertaken by him, the defendant got the property measured, obtained encumbrance certificate and handed over their copies to the appellants. The defendant prayed for dismissal of the suit.

(3.) The trial court found that on the facts of the case the plaintiffs are not entitled to a decree for specific performance, but entitled to the refund of the purchase price paid in advance towards the sale consideration with interest at 12% per annum from the date of the agreement till realisation. The plaintiffs and the defendant challenge the decree to the extent it is adverse to them.