Non-filing of replication does not signify admission of discharge in a suit for recovery of advance payments.

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 in respect of the above property. Though the defendants agreed to measure out the property and to evict the tenants in the shop rooms before the execution of the sale deed, they failed to do so. The Suit was originally filed for specific performance and for injunction against alienation of the schedule property. Subsequently, the prayer was limited to return of the advance amount of Rs.15,00,000/- along with interest at the rate of 18% per annum.

3. The defendants filed written statement admitting the execution of the sale agreement and also receipt of Rs.15,00,000/- as advance amount. They further contended that, on the date of sale agreement itself the plaintiff received Rs.2,00,000/- from them on the ground that it is required for rectification of mistakes and defects in the property. Thereafter on 28.6.2012 the plaintiff approached the defendants and informed that he is not interested in continuing with the contract and demanded return of the advance money. Accordingly, the defendants agreed to return the balance advance amount and Rs.1,00,000/- was paid on 28.6.2012. A further sum of Rs.2,00,000/- was paid on 5.7.2012, Rs.2,00,000/- on 8.10.2012, Rs.6,00,000/- on 25.10.2012 and Rs.2,00,000/- on 31.12.2012. It is further contended that though the defendants requested the plaintiff to give receipt for the amount paid, the plaintiff did not do so. Therefore, they prayed for dismissing the Suit.

4. The trial court framed seven issues.

5. The evidence in the case consists of the oral testimonies of PW1 and DW1 and Exts.A1 to A4 series and B1 to B3. After appreciating the evidence on record, the trial court decreed the Suit and directed the defendants to pay a sum of Rs.15,00,000/- along with interest at the rate of 6% per annum. Being aggrieved by the above judgment and decree, the defendants preferred this appeal.

6. Now the points that arise for consideration are the following :

(i) Whether failure to file replication against the plea of discharge amounts to admission of the plea of discharge ?

(ii) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal ?

7. Heard Sri.P.G.Jayashankar, the learned counsel for the appellants/defendants and Sri.R.Azad Babu, the learned counsel for the respondent/plaintiff.

8. The points :- The fact that on 25.6.2012, the plaintiff and defendants 1 and 2 entered into Ext.A1 agreement is not in dispute. It is also admitted that on the date of Ext.A1 itself, the defendants received a sum of Rs.15,00,000/- from the plaintiff towards part of the sale consideration. Due to one reason or another, Ext.A1 agreement for sale could not be performed. Though the Suit was originally filed for specific performance and permanent prohibitory injunction against