V.S. RAMAKRISHNAN Vs. P.M. MUHAMMED ALI

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned common judgment and order dtd. 21/2/2022 passed by the High Court of Kerala at Ernakulam in Regular First Appeal Nos. 686/2010 and 766/2010, by which, the High Court has dismissed RFA No. 766/2010 preferred by the appellant herein - original plaintiff and has partly allowed RFA No. 686/2010 preferred by the original defendant with respect to the proportionate cost, the original plaintiff has preferred the present appeals.

(2.) That the respondent herein - original defendant entered into an agreement to sell with the appellant - original plaintiff on 13/7/2005 for a consideration of Rs.52,500.00 per cent with respect to the property admeasuring 9 acres 47.41 cents in Re-Survey No. 35/2/1 of Karukutty Village. Under the said agreement to sell a sum of Rs.1.00 crore was paid by the appellant to the defendant towards earnest money of which Rs.65.00 lakhs were paid in cash and Rs.35.00lakhs were in the form of postdated cheque dtd. 25/8/2005. As per the terms of the agreement to sell the last date fixed for payment of the balance sale consideration was 12/1/2006. The postdated cheque of Rs.35.00 lakhs deposited by the defendant came to be dishonoured/returned for the reasons "payment stopped by attachment order". At this stage, it is required to be noted that there was a raid conducted by the Income Tax Department and the bank account of which the postdated cheque of Rs.35.00 lakhs, was drawn came to be attached by the IT Department. The cheque was returned by the bank vide return memo dtd. 31/8/2005. The defendant through his advocate served a notice upon the plaintiff drawing the attention of the plaintiff with respect to the return/dishonour of the postdated cheque vide notice dtd. 2/9/2005. According to the plaintiff immediately the same was replied on 20/9/2005 and offered to pay the amount of Rs.35.00 lakhs in cash which according to the plaintiff the defendant refused to accept the same. The defendant was also called upon to accept Rs.35.00 lakhs in cash and the plaintiff was prepared to handover cash. That thereafter vide notice dtd. 23/9/2005 the defendant terminated the agreement to sell/contract and forfeited Rs.10.00 lakhs and called upon the plaintiff to take back an amount of Rs.55.00 lakhs. That thereafter vide notice dtd. 18/10/2005 the plaintiff replied to the termination notice dtd. 23/9/2005 and called upon the defendant to accept the balance sale consideration within the agreed period i.e., on or before 12/1/2006. That thereafter the plaintiff served a legal notice dtd. 3/1/2006 and called upon the defendant to execute the sale deed after accepting balance sale consideration. The defendant was called upon to inform the plaintiff the date on which he has to pay the balance sale consideration and to execute the sale deed. As the defendant failed to act as per the legal notice dtd. 3/1/2006. The appellant - original plaintiff instituted a suit before the learned Trial Court for specific performance of agreement to sell dte 13/7/2005. The defendant filed the written statement repudiating the contract. The learned Trial Court framed the following issues:-

(3.) We have heard Shri V. Chitambaresh learned Senior Advocate appearing on behalf of the appellant and Shri Joseph Kodianthara learned Senior Advocate appearing on behalf of the defendant. We have also gone through and considered the findings recorded by the learned Trial Court as well as the High Court.