The court confirmed that variations in contractual agreements do not automatically imply novation, allowing claims for interest on advance amounts retained by the party at fault.

JUDGMENT

Ramachandran Nair, J.

This appeal is filed by the defendants in O.S. No.465/2003 on the file of the Ist Addl. Sub Court, Ernakulam which was decreed allowing the pleas of the plaintiff. The parties are referred to as arrayed in this appeal.

2. The respondent filed the suit seeking for a decree for specific performance and alternatively for return of advance money with interest and to realise the amounts towards damages suffered by him. It was partly decreed, viz. for return of advance money with interest at the rate of 18% from 17.7.1996 till the date of suit and at the rate of 6% thereafter till realisation. Both sides had filed appeals before this Court as R.F.A. No.452/2005 (appeal filed by the appellants herein) and R.F.A. NO.378/2006 (appeal filed by the respondent/plaintiff). The appeal filed by the plaintiff was confined to challenge against the refusal to award interest for certain periods. These appeals were disposed of by this Court by judgment dated 20.9.2007 which is reported as Peter Cherian v.

M.K. Abraham (2007 (4) KLT 679). The judgment is rendered by one of us (Ramachandran Nair, J.).

3. By the above judgment this Court inter alia rejected the contentions of the appellants that the claim for interest is barred by limitation. At the appellate stage the respondent had filed I.A. No.446/2007 for permitting him to remit the deficit court fee. The said issue was considered and decided in favour of the respondent and finally this Court remanded the matter to the trial court for adjudicating the issue regarding liability to pay interest on various claims including granting of interest at 18%. This was directed after allowing the respondent to remit the required amount of court fee in the light of Section 12 (4) of the Kerala Court Fees and Suits Valuation Act . This Court allowed the respondent to amend the valuation of the plaint also with liberty to the appellants herein to take up all available contentions on merits. Thereafter, the matter was reheard and the court below has passed a decree allowing the respondent to realise an amount of Rs.28,07,837/-. It was directed that out of the said amount, Rs.11,51,000/- received on 7.4.2006 will be deducted and aggrieved by the said judgment and decree, this appeal is filed by the appellants/defendants 1 and 4.

4. Shorn of unnecessary details, the necessary facts for the disposal of the appeal are the following: The plaint schedule property was allotted to the third defendant by the Greater Cochin Development Authority (“GCDA” for short). Defendants 1 and 2 are Managing Partners of the 4th defendant which is a partnership firm and the third defendant is another partner of the firm. The respondent/plaintiff is a non resident Indian. The allotment by the GCDA was made for the purpose of developing the plot by constructing a multi storied building. The partnership was formed by defendants 1 to 3 to implement the project.

5. An agreement was entered into by the respondent with the second appellant/4th defendant on 20.7.1995 (Ext.A1) whereby the second appellant agreed to sell 1/65th share in the undivided 51.152 cents of land in Sy. Nos.391 and 392 of Elamkulam Village together with the right to construct an apartment on the first floor of the multi storied building named A.B.M. Towers and the right to construct a covered car parking for a total consideration of Rs.1,90,000/-. By this agreement the construction of the building was entrusted with the second appellant. The respondent was entitled to get the flat constructed with the right to use the proportionate share in the common areas and with common facilities and the covered car parking. Ext.A2 dated 20.7.1995 is the second agreement executed between the parties on the same date whereby the second appellant agreed to construct an apartment having an extent of 1404 sq. ft. on the first floor of the building for a total cost of Rs.14,04,000/- which includes the price of the 1/65th share in the undivided property and Rs