The Supreme Court set aside a Kerala High Court judgment that had remanded a land sale dispute for fresh consideration and restored the trial court’s decree directing refund of the advance amount to the buyer, holding that the seller had suppressed the existence of a subsisting mortgage over the property.
A Bench of Justices Vikram Nath and Sandeep Mehta held that the High Court erred in relying on a stray admission in the buyer’s cross-examination while ignoring material admissions made by the seller, including the fact that the agreement for sale categorically stated that the property was free from encumbrances. The Court noted that the seller neither pleaded nor proved that disclosure of the mortgage was made prior to execution of the agreement.
The Court further observed that the seller’s conduct agreeing to reduce the sale consideration after the issue of mortgage suppression was raised, failing to reply to a legal notice seeking refund of the advance, and admitting that the advance amount was not utilised to clear the bank loan clearly established concealment of material facts.
Holding that the trial court had rightly decreed the suit for refund with interest and rejected the seller’s claim of set-off, the Supreme Court restored the original decree and allowed the appeal, bringing the long-pending dispute to a close.
Appearances:
For Plaintiff/Appellant: Sr Advocate Raghenth Basant
For Defendant/Respondent: Sr. Advocate V. Chitambaresh
