The burden of proof lies with the defendant to demonstrate damages and the unavailability of a right to set-off without evidence of plaintiffs' unwillingness to perform.

JUDGMENT

This appeal is at the instance of the defendant in a suit for return of advance money who has been non-suited by the Courts below. 2. The plaintiffs sued the appellant/defendant under an agreement of sale dated 10.12.2015 wherein it was agreed that the 1st plaintiff would purchase 3.24 Ares of land comprised in Re. Sy. No. 283/5-5 of Vilappil Village for a sum of Rs. 30,00,000/-. It is an admitted case that an amount of Rs. 10,00,000/- was received by the defendant as advance sale consideration and later on 18.05.2012, the 1^st plaintiff paid further Rs. 2,00,000/-. The period stipulated in the agreement was 10.03.2016. The plaintiffs state that they were ready with the money and willing to perform the contract, but the defendant refused to turn up.

2.1. On 12.03.2016, the plaintiffs demanded the defendant for return of money which was refused and hence the suit. The defendant filed a written statement contending that the suit is not maintainable, however, admitted the agreement entered on 10.12.2015. The defendant contended that based on the promise made by the 1^st plaintiff to purchase the property, the defendant had entered into another agreement on 13.12.2015 and paid a further sum of Rs. 6,00,000/- towards the said agreement. Since the plaintiff failed to perform his part, the defendant had sustained loss and, therefore, the defendant was entitled to set off the advance amount towards the loss which was caused to the defendant.

2.2. The Trial Court, on appreciation of the oral and documentary evidence concluded that the defendant had failed to prove the claim for set off and hence decreed the suit. Aggrieved, the defendant preferred A.S. No. 10 of 2024 before the District Court, Thiruvananthapuram, which was dismissed by judgment dated

27.08.2025 and hence the appeal.

3. Heard Sri. Santhosh Mahadevan, the learned Counsel for the appellant.

4. On considering the submissions raised across the Bar by the learned Counsel for the appellant, this Court is not inclined to admit the appeal inasmuch as no substantial question of law arises for consideration. It is true that the parties had entered into an agreement dated 10.12.2015 and it is also admitted that the appellant/defendant had received a total advance sale consideration of Rs. 12,00,000/-. In order to sustain the plea of the appellant, it must point out that the plaintiffs were not ready and willing to perform the contract. However, the evidence adduced by the parties does not reveal that on expiry of the period fixed for performance of the contract, the appellant had issued any notice calling for the plaintiffs to perform the contract or in alternative cancel the agreement and set off the claim. It is only when the suit for recovery of advance money was instituted, the claim of set off was raised.

5. The learned Counsel for the appellant has made available a copy of the agreement for sale for the perusal of the Court. On a perusal of the said agreement, it is evident that there is no enabling clause by which the appellant could seek for forfeiture of the advance amount. Even assuming that such a right is imbedded in the contract of the sale, the burden is on the appellant to prove that she sustained damages on account of the non-performance of the contract by the plaintiffs.

6. The quality of the evidence adduced by the appellant is unfortunately insufficient to sustain the plea of set off. Resultantly, this Court finds that there is no merit in the appeal and the same fails.

Accordingly, the present appeal is hereby dismissed.

Sd/-