AS/5/1953 of NARAYANAN NAMBOODRI NEELAKANTAN NAMBOODRI Vs BALAKRISHNA PISHARADI on 21 March 1955

Judgment.

The defendant is the appellant.The suitis based on theagreement Ext. A executed by the defendant in favour of the plain--tiff on 22.2.1123.Ext.II of thesame gar date isthe counterpart executed by the plaintiff to the defendant.The contract wasfor the sale of a buildihg which the defendant had purchased fromthe guardian of a minor.The price agreed was Rs.4000 of whichRs.1200 was paid as advance under Ext.A.'he period fixed forcompleting the sale and removal of the building was up to 10.3.123.£'-he contact fell through and hence the plaintiff instituted thesuit for the return of the advance amount of Rs,1200 and also for a-further sum of Rs.1000 by way of damages.The lower court negatived the claim for damages and decreed the suit in respect of theadvance amount. Plaintiff hassubmitted to the decree while thedefendant has come up in appeal.

I2.'he only question for consideration is whether thecontract I,II

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-fell through on account of the default of the defendant in fulfilling his part of the agreement within the stipulated period.Soon after the date of the agreement, the guardian of the minorto whom the building belonged, sent Ext.B notice on 39.2.1123""·-s "%A ±E.22.:.2%%.%±±price or tie {4a±e,and that unless that amount is paid, the~building will not be allowed to be removed.Plaintiff intimated-the fact of such a notice to the defendant promptly.'rile defendant promised that he will pacify the guardian and see that heagrees to the removal of the building.Beyond making such a pro-mise nothing was done in that direction.Hence on 9.3.1123 theplaintiff issued Ext.I not ice to the defendant stating tkr all thefacts mentioned above and also that the defendant will be ialtheld answerable inc ase he does not make the buildingavailable-to the plaintiff.No doubt this notice was received by the defendant only a few days after 10.3.1123 the last date for per-formance of the contract.But there is thesignificant fact thatthe defendant did not care to reply to Ext.I notice or even todeny from the witness box when he was examined as D.W.l the truthof the averments made in Ext. I.Hence it has to be tck en thatplaintiff had drawn timely attention to the obstruction causedby the minor's guardian and yet the defendant did not care to fa=cilitate the removal of the building by the plaintiff.The lowercourt has also definitely found that the defendant was not in aposition to carry out his parrt of the agreement when he enteredinto the same.It may also be mentioned that the guardian is thedefendant's sister's husband and that when the plaintiff wasdiscussing with the defendant about the objection raised by theguardian, the defendant did not ask anything aboutit to theguardian who was also present.Still another significant factis that the guardian later on sold the building to a third partywho was able to remove the building without any objection fromthe defendant.The defendant who had executed Ext.A as if he had 'j t •

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become the owner of the building, has not yet filed any suit tovindicate hissupposed rights.All these facts have c0ome o-ut fromhis own evidence as D.W.l.Thus therecan be nothat the defaulting party was the defendant himself and that the decreefo the return of the advance amount paid under Ext.A calls for

Conclusion

no interference.·

3. In the result this appeal is dismissed with costs.

(Sd) K.Sankaran,Judge.

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(Sd) M.S. Menon,Judge.

••%.se

(True copy)

Z.tu

Deputy Registrar,

for Registrar.

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