P.N. Ravindran,J.
The first defendant in O.S. No.253 of 2012 on the file of the Court of the Subordinate Judge of Kannur is the appellant in this appeal. The first respondent is the plaintiff and the second respondent is the second defendant therein. The suit instituted by the first respondent/plaintiff for realisation of the sum of Rs.10,00,000/-paid by him by way of advance pursuant to and in terms of Ext.A2 agreement for sale dated 5.5.2008 was decreed after trial and the first defendant was directed to pay to the plaintiff the said sum of Rs.10,00,000/-with interest @ 12% per annum from the date of suit till realisation and costs of the suit. The brief facts of the case are as follows:-
2. The first respondent/plaintiff instituted the suit contending that though he had entered into Ext.A2 agreement dated 5.5.2008 with the first defendant in respect of 36 cents of land and the sum of Rs.10,00,000/-was paid as advance, the first defendant failed to perform his part of the agreement and that the first defendant, instead of honouring the terms of agreement, with an intention to defraud the plaintiff, executed Ext.A4 sale deed dated 12.06.2009 conveying the very same property to the second defendant.
3. The defendants entered appearance and filed separate written statements. The appellant admitted the execution of Ext.A2 sale agreement and the receipt of the sum of Rs.10,00,000/-by way of advance. The appellant however, contended that though he had come over from Dubai where he is employed to Kannur on more than one occasion, the plaintiff failed to perform his part of agreement and therefore he was constrained to sell the property to the second defendant for a sale consideration of Rs.13,86,000/- thereby incurring a loss of Rs.25,38,000/-. He also contended that in connection with his travel to India from Dubai on more than one occasion, he had spent a further sum of Rs.64,000/-, thereby suffering an aggregate loss of Rs.26,02,000/-. He further pleaded that the plaintiff had agreed on 12.06.2009 that the first defendant can forfeit the advance paid by him for the reason that he was at fault and on account of his failure to perform the obligations under the contract, the first defendant had suffered loss.
4. In the trial court, the plaintiff was examined as PW1 and Exts.A1 to A4 were produced and marked on his side. The first defendant did not enter the box. The trial court on an analysis of the pleadings and the evidence oral and documentary available in the case held that the second defendant is not a bonafide purchaser for value without notice, that the first defendant had not sent a notice to the plaintiff informing him that the property will be sold to the second defendant if he is not prepared to abide by the terms of the agreement for sale and therefore, the plaintiff is entitled to realise the advance paid by him with interest as aforesaid. Hence this appeal.
5. We heard Sri. V.Premnath, learned counsel appearing for the appellant. Learned counsel appearing for the appellant contended that in the transaction which resulted in Ext.A4, the first defendant had suffered a loss of Rs.25,38,000/-, that he had also incurred expenditure in connection with his travel to India from Dubai for the purpose of effecting the sale contemplated in Ext.A2 agreement, that the plaintiff had agreed on 12.06.2009 that the first defendant can forfeit the advance paid by him and therefore, the impugned judgment is liable to be set aside.
6. In our opinion, there is little or no merit in the aforesaid contention. Though the first defendant has alleged that he had incurred a loss of Rs.25,38,000/-, when he entered into the transaction evidenced by Ext.A4, there is no material to substantiate the said contention. As stated earlier, the first defendant did not enter the box. That apart Ext.A4 sale deed is dated 12.06.2009. The date fixed for performance in Ext.A2 agreement was 5.09.2008. The instant suit was presented on 11.5.2011, nearly 2 years after Ext.A4 sale deed was executed by the first defendant in favour of the second defendant. The first defendant has not explained the reason why if as alleged he had suffered a loss of Rs.25,38,000/- on account of the failure of the plaintiff to abide by the terms of Ext.A2 agreement, he did not sue to realise the said loss from the plaintiff. Even assuming that the plaintiff had, as contended by the first defendant agreed that the sum of Rs.10,00,000/- paid by him as advance can be adjusted towards the said loss, if the plea of the defendant were to be accepted, he had suffered a further loss of Rs.15,38,000/-. From the conduct of the first defendant and the attendant circumstances, we are persuaded to take the view that the plea put forward by him in paragraph 8 of the written statement that he had suffered a loss of Rs.25,38,000/-on account of the failure of the plaintiff to abide by the terms of the agreement for sale is nothing but a figment of imagination and does not reflect the true state of affairs. That apart, the first defendant has also not raised a counter claim. On a totality of the facts and circumstances and from the conduct of the appellant, we are satisfied that the appellant has not made out any ground warranting interference with the findings entered by the trial court. As noticed by the trial court, in these circumstances, the failure of the first defendant to issue a notice calling upon the plaintiff to make good the loss suffered by him assumes importance. We therefore find no grounds to entertain the appeal. The appeal fails and it is accordingly dismissed in limine.
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P.N. RAVINDRAN, JUDGE Sd/-
P.B.SURESH KUMAR, JUDGE //true copy// P.A to Judge smv