O.S. No. 242 of 2001, a suit for realization of an amount of Rs. 3,15,000/-with interest advanced by the plaintiff to the defendant pursuant to an agreement dated 20.8.1999, was dismissed by the Additional Subordinate Court, Thalassery by a judgment dated 20^th June, 2003. Challenging the said verdict, this appeal has been preferred by the plaintiff against the defendant/respondent.

2. For the sake of convenience, the parties to this appeal are referred to, as the plaintiff and the defendant, as arrayed in the suit before the trial court.

3. Brief facts necessary for the disposal of this appeal are as follows:

On 20.8.1999 the defendant agreed to sell her property for a total sale consideration of Rs.8,55,000/- to the plaintiff within a period of 4 ½ months from the date of agreement. On the date of the agreement plaintiff had advanced a sum of Rs.3,15,000/- to the defendant. Though, the plaintiff was ready with the balance sale consideration, on enquiry, it was learnt that the property was mortgaged with Kerala Financial Corporation ('KFC' for short) and some other Banks. So also, it was learnt that the the defendant had agreed to sell the very same property with a pathway leading to the said property to some others with the intention to cheat the plaintiff. So, the plaintiff was compelled to rescind the contract and he issued a lawyer notice on 6.1.2000 demanding back the advance amount paid by him. Instead of paying the amount, the defendant issued a reply raising false contentions. Hence, the suit for realization of the sum of Rs.3,75,424/-.

4. The defendant resisted the plaint claim inter alia contending that the property was not mortgaged to any Bank as alleged and in fact she had marketable title over the property. She was running an oil mill in another plot by availing a loan of Rs.2,87,000/- from KFC on deposit of the title deed of the property. As she suffered loss in the business , she was forced to sell the property and the agreement was executed with the plaintiff to raise fund to settle the dues and to purchase a small residential building for her accommodation. On receipt of the advance amount from the plaintiff, she paid an amount of Rs.2,00,000/- to one Moosankutty to purchase a property. After execution of the agreement dated 20.8.1999, the plaintiff in fact approached the defendant and requested to provide a pathway to the property. The pathway was lying through the property where the oil mill was situated. That property was mortgaged to KFC and the defendant informed the plaintiff that the title deed was deposited with KFC. Still the plaintiff agreed to purchase the pathway and for the same another agreement was executed on

28.8.1999 fixing the value of the property as Rs.20,000/- and received an advance amount of Rs.5,000/- . The plaintiff agreed to purchase the property on or before 31.12.2000 and so the defendant had to clear off the loan due to KFC only by 31.12.2000. In fact the defendant had approached the plaintiff for getting the balance sale consideration for the property as well for the pathway, but the plaintiff evaded the same and then a notice was issued on 6.1.2000 raising false allegations. By the letter it was also informed that the plaintiff was rescinding the agreement unilaterally. Hence, the defendant sent a notice intimating him that she will be present before the Sub Registrar's office on 20.1.2001 to register the sale deed. But the plaintiff remained absent. The defendant was ready to register the sale deed in favour of the plaintiff as the property was free from encumbrance and charge.

Therefore, there was no failure on the part of the defendant in performing the agreement.

5. A counter claim was also raised for permitting the defendant to adjust the advance amount