1/2551 Thailand Supreme
Court Opinion 34 (No. 385) 2008
Mrs. Soranun or Booppa Pasugree vs. Mrs. Warisa Nokkoonthong
Re: Fraud, Land, House, Property
The plaintiff filed criminal proceedings against the defendant on 25 December 2536 B.E. (1993 A.D.) concerning the Sales and Purchase Agreement for land and construction of land for land area of 21.75 square wah, price of 490,000 baht, which the plaintiff entered into with the defendant.
On the date of execution of the Agreement, the plaintiff made a deposit of 250,000 baht. However, in the middle of July 2541 B.E. (1998 A.D.) the defendant was unable to transfer ownership rights of the house and land to the plaintiff as stipulated in the Agreement because the defendant had sold the land to another person.
The defendant offered sale of a new home with land situated at Baanree subdistrict, Ang Thong district, Ang Thong province, to the plaintiff. The defendant also presented the plaintiff a brochure which advertised the home. When the plaintiff asked if the defendant held ownership rights to the land of the housing estate, the defendant affirmed that the said plot of land was owned by the defendant, in line with the evidence provided in the advertisement brochure for housing types. Consequently, the plaintiff agreed to purchase and made plans to enter into a Sales and Purchase Agreement with the defendant at the plaintiff’s home on 31 July 2541 B.E. (1998 A.D.). The plaintiff agreed to purchase the Thailand property at a price of 500,000 baht, and the previously deposited amount of 250,000 baht would be credited to the sales price.
The defendant affirmed that the construction and the transfer of ownership would be completed by 1 January 2542 B.E. (1999 A.D.). Yet, when the date prescribed for transfer of ownership according to the Agreement arrived, the defendant was unable to transfer the house or the land to the plaintiff.
Therefore the plaintiff went to examine the said house and land and the found the house had not yet been completed. On 8 February 2542 B.E. (1999 A.D.), the plaintiff examined the title deed to the plot of land the plaintiff had agreed to purchase at the Ang Thong Provincial Land Office. It appeared that the defendant had no ownership to the said plot of land because the defendant sold the plot of land with right of redemption to Mrs. Sinee Kongsiriwong on 19 June 2539 B.E. (1996 A.D.). The time period for redemption of land was 6 months. Prior to the expiry of the redemption period, the defendant had not redeemed the said land, therefore the ownership of land was transferred to Mrs. Sinee Kongsiriwong on 19 June 2539 B.E. (1996 A.D.).
The action of the defendant deceived the plaintiff so that she agreed to enter into the Agreement for the Thailand land purchase and made a deposit of 250,000 baht. Furthermore, the defendant later requested reimbursement from the plaintiff for tiles of 21,260 baht, partial labor costs of 2,000 baht, supplies and labor costs of 10,000 baht, total costs amounting to 283,260 baht.
This incident occurred at Utai subdistrict, Utai district, Pranakorn Sri Ayuthaya province. Request was made to punish the defendant according to section 341 of the Criminal Code.
The lower court made inquiry for grounds for the legal proceedings and determined grounds and accepted the charge.
The defendant pleaded not guilty.
The lower court dismissed the charge.
The plaintiff appealed.
District 1 Appellate Court reversed the decision and judged the defendant as being in fault according to section 341 of the Criminal Code and sentenced the defendant to imprisonment of 1 year. However, the evidence provided by the defendant was beneficial to the judgment, thereby reducing the punishment to one third of the sentencing according to section 78 of the Criminal Code, or imprisonment of 8 months.
The defendant appealed.
The Supreme Court judged that “The fact that the defendant sold the completed townhouse and property, in which a Sales and Purchase Agreement was made with the plaintiff, to another person was a breach of agreement entered into with the plaintiff. The plaintiff can file a lawsuit claiming compensation for damages from the defendant.
However, the defendant offered to sell a house with land of her new housing estate situated at Ang Thong province to the plaintiff. She provided advertisement brochures for this housing estate which presented the defendant as holder of ownership rights over the land and the coordinator of the project to the plaintiff, and offered sale of the house and land in Ang Thong by transferring the deposit according to the Sales and Purchase Agreement for a townhouse and land at Pranakorn Sri Ayuthaya as deposit under the Sales and Purchase Agreement for house and land in Ang Thong.
The plaintiff agreed to purchase the said house and land at a price of 500,000 baht, according to the record appended to the Sales and Purchase Agreement. Furthermore, the defendant requested reimbursement for tiles and labor costs from the plaintiff on many occasions. However, the defendant had not followed through on the construction of the house for the plaintiff according to the Agreement.
When the plaintiff checked at the Land Office, she became aware that the land to be apportioned to the plaintiff had been sold with right of redemption to Mrs. Sinee, and the defendant had not redeemed the land so that the legal owner of the land became Mrs. Sinee prior to the defendant’s offer of sale to the plaintiff.
The defendant had also presented to the plaintiff advertisement brochures with the defendant as holder of ownership rights over the land and the coordinator of the housing project, and therefore had concealed the facts. The plaintiff testified and affirmed that if she had known that the defendant had no ownership rights over the land of the housing estate, the plaintiff would not have entered into the Sales and Purchase Agreement with the defendant. This action on the defendant’s part caused damages to the plaintiff. The defendant’s conduct was an expression of intent to commit fraud by deceiving the plaintiff into entering into the Sales and Purchase Agreement of land and house according to the later agreement so that the defendant would not need to return the deposit of 250,000 baht to the plaintiff.
The defendant claimed that Mrs. Sinee, the owner of the land, had authorized the defendant as representative to apportion the land and had permitted the defendant to redeem the land little by little. However, Mrs Sinee had stated that she had never made those statements and affirmed that when the defendant had sold the land with right of redemption there was yet no construction on the land, and the defendant had never requested construction to be done on the land.
Therefore, the defendant deceived the plaintiff by presenting advertisement brochures with the defendant as owner of the project for selling homes and land to the plaintiff although the defendant had no ownership rights over the land and the defendant had never requested permission from Mrs. Sinee, the owner of the land, to construct homes on the land. The defendant deceived the plaintiff and induced her to enter into the Sales and Purchase Agreement with the defendant by depositing 250,000 baht with the defendant. The defendant committed Thailand law land fraud. The Supreme Court agrees with the judgment of District 1 Appellate Court in convicting the defendant. The defendant’s appeal has no basis.”