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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.PRATHEEP KUMAR
Sasikala, W/o. Late Vasantha Kumar – Appellant
Versus
Anzil, S/o. Ibrahimkutty – Respondent
| Table of Content |
|---|
| 1. liability to return advance linked with contract breaches. (Para 2 , 3 , 5 , 8) |
| 2. admission of discharge requires clear proof. (Para 9 , 10 , 12) |
| 3. burden of proof falls on discharging party unless proved otherwise. (Para 11 , 13 , 14 , 17) |
| 4. failure to prove repayment leads to affirmation of lower court's ruling. (Para 18 , 19) |
JUDGMENT :
(C. PRATHEEP KUMAR, J.)
The defendants 1 and 2 in O.S.21/2015 on the file of the Sub Judge, Alapuzha are the appellants. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.
2. The plaintiff filed the above Suit for return of advance amount. On 25.6.2012 a sale agreement was entered into between the plaintiff and defendants and thereby the defendants 1 and 2 agreed to sell the scheduled property to the plaintiff for a total sale consideration of Rs.66,00,000/-. On the date of agreement itself, the plaintiff advanced a sum of Rs.15,00,000/- to the defendant. According to the plaintiff, though he approached the defendants expressing his readiness and willingness to get the sale deed executed, the defendants were protracting the same. A Suit as O.S.No.569/2012 was also pending
Non-filing of replication does not signify admission of discharge in a suit for recovery of advance payments.
Failure to seek specific performance precludes forfeiture of advance sale amount as damages without proof of actual loss.
Agreement to Sell – Payment of any specific amount by way of advance sale consideration must find written endorsement in the agreement.
The court reaffirmed that in specific performance cases, the burden of proof lies on the defendant to substantiate claims regarding the advance amount and contract genuineness, ultimately determining....
Proof of sale agreement and advance insufficient for specific performance without continuous readiness and willingness under Section 16(c); denying contract precludes forfeiture; additional appellate....
The court can grant alternative relief of refund even if not explicitly claimed, ensuring fair justice is delivered in contract disputes.
A plaintiff seeking specific performance must demonstrate readiness and willingness to perform contractual obligations; failure to do so results in denial of relief.
The court ruled that the plaintiff was not ready and willing to perform the contract, justifying the denial of specific performance and allowance for a refund instead.
The plaintiff failed to prove the execution of the sale agreement, and the amendment to include a claim for the return of the advance amount was not permissible as it would change the nature of the s....
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