Karnataka High Court
P Ragini vs M M Ananthamurthy on 1 December, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 871 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 871 OF 2008 (SP)
BETWEEN:
P.RAGINI,
W/O P. PADMANABHAN,
AGED ABOUT 49 YEARS,
R/O IST CROSS, 35/10, MODEL COLONY,
YESWANTHAPUR,
BANGALORE - 560 032.
...APPELLANT
(BY SRIVISHNU HEGDE, ADVOCATE)
AND:
M.M.ANANTHAMURTHY,
S/O MAHANEERASA,
MAJOR,
Digitally NO 73/1, 1ST 'N' BLOCK,
signed by R
MANJUNATHA RAJAJINAGAR, BANGALORE - 560 010.
Location: ...RESPONDENT
HIGH COURT
OF (BY SRI.N.S.NARASIMHA SWAMY, ADVOCATE)
KARNATAKA
***
THIS RFA IS FILED U/S 96 OF THE CPC AGAINST THE
JUDGEMENT AND DECREE DATED.07.03.2008 PASSED IN
O.S.NO.6151/1994 ON THE FILE OF THE VTH ADDL. JUDGE,
CITY CIVIL COURT, BANGALORE, DISMISSING THE SUIT FOR
SPECIFIC PEROFRRMANCE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 871 of 2008
JUDGMENT
Present appeal is filed by the plaintiff being not satisfied
with the judgment and decree dated 07.03.2008 passed in
O.S.No.6151/1994 on the file of the V Additional City Civil
Judge, Bangalore City (CCH-13).
2. Parties are referred to as plaintiff and defendant for
the sake of convenience as per their original ranking before the
Trial Court.
3. Brief facts of the case which are utmost necessary
for disposal of the appeal are as under:
Plaintiff filed a suit for specific performance with the
following prayer:
"1. Wherefore, the appellant respectfully prays
that this Hon'ble Court be pleased to set-aside the
judgment and decree dated 07.03.2008 passed in
O.S.No.6151/1994 on the file of V Additional City
Civil Judge (CCH-13) Bangalore. So far as it relates
to grant of specific performance of the agreement
dated 05.05.1992 between the appellant and
respondent by decreeing the suit as prayed for
granting Specific performance as the agreement re-
conveyance regarding the suit property.
2. The appellant also prays for passing costs
and other relief deemed to fit to grant under the
circumstances, in the interest of justice."
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4. It is the case of the plaintiff that property bearing
No.35/10 measuring East to West 40ft. and North to South 85
ft. situated at 1st cross, Model Colony, Yeshwanthapur,
Bangalore City (hereinafter referred to as suit schedule
property), which was agreed to be sold by the defendant to
plaintiff by entering into an agreement on 05.05.1992. It is
further case of the plaintiff that despite plaintiff was ready and
willing to perform her portion of contract and also having paid
sum of Rs.4,50,000/- as advance sale consideration, defendant
failed to execute the sale deed. Left with no other alternative,
plaintiff was constrained to file the suit for specific performance
of enforcement of the contract of agreement to sell dated
05.05.1992 with the aforesaid prayer.
5. Further, plaintiff contended that Smt.Karthiayani
Amma, who was the absolute owner of the property having
purchased the same under registered sale deed dated
18.11.1964 from Sri.C.Mark. Said Smt.Karthiayani Amma, was
the mother of plaintiff who is no more. In the year 1965 -
1966, said Smt.Karthiayani Amma had constructed two A.C.C.
sheet roofed tenements in the plinth area of about 51 ft. x 10
ft. for the residence of the family including plaintiff's uncle -
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Sri.P.Kumaran Nair with his wife and children. In the year
1973, mother of the plaintiff constructed ground floor and main
house in plinth area of East to West 40 ft. and North to South
12 ft. and shifted the residence from the sheets tenements.
But Sri.P.Kumaran Nair continued to occupy one tenement and
other tenement was occupied for the tenants.
6. In the year 1974, plaintiff's mother further
constructed first floor on the main building with R.C.C. roofing
and occupied the same. In the year 1978, plaintiff's mother
constructed R.C.C. roofed shop abutting the sheets roofed
tenements measuring 14 ft. x 10 ft., with a view to augment
her income. So also, in the year 1985, she constructed a store
room measuring 14 ft. x 12 ft. with A.C.C. sheet roofing in the
vacant area on the Western side abutting to the main building
where hotel materials were stored.
7. Further, plaintiff submits that for the hotel business,
her mother raised sum of Rs.30,000/- loan by mortgaging the
property to Sri M.Subbanna also called as Magaji Subbanna. It
was a deed of sale and a re-conveyance agreement dated
10.11.1971. As per the re-conveyance agreement,
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Smt.Karthiayani Amma, was required to repay the principal
loan amount along with interest to Sri Magaji Subbanna at the
time of final settlement and he had to execute re-conveyance
deed. It is further case of the plaintiff that her mother
discharged the loan raised by her, in the year 1981 and at the
time of final settlement, Sri Magaji Subbanna had executed a
'muchalike' (endorsement) stating that entire debts were
discharged and schedule property is free from mortgage deed
dated 10.11.1971.
8. Further, plaintiff contended that mortgage deed
dated 10.11.1971 though styled as a sale deed, was infact a
mortgage deed. Certified Copy of the said deed was produced
before the Court.
9. Further, plaintiff contended that said Sri Magaji
Subbanna with an intention to knock of the suit schedule
property managed to get khatha transferred in his name.
Before the death of plaintiff's mother, she had demanded
number of times to execute re-conveyance deed in her favour
but the same was postponed by Sri Magaji Subbanna. In the
meanwhile, said Sri P.Kumaran Nair, who was one of the
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tenants in the A.C.C. sheet roofed portion, died. After the
death of plaintiff's mother, there was some delay in
approaching Sri Magaji Subbanna by plaintiff for re-
conveyance.
10. When plaintiff tried to approach the defendant
through mediators and plaintiff was informed that defendant is
having a Will in his favour executed by Sri Magaji Subbanna
bequeathing his rights in respect of suit property. Therefore,
defendant claimed that he has become the owner of the suit
property.
11. Later on defendant agreed to sell the suit property
in favour of the plaintiff provided the dues of Sri Magaji
Subbanna are repaid and therefore, agreement came into
existence. In that background, on 04.05.1992, plaintiff gave a
Demand Draft bearing No.432073 for a sum of Rs.2,00,000/-
drawn on Karnataka Bank to the defendant. After receiving the
demand draft, defendant informed plaintiff to meet him on
05.05.1992. On 05.0.51992, plaintiff met defendant and
defendant gave a receipt already prepared mentioning a sum of
Rs.2,00,000/- towards the advance sale price of the suit
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schedule property. However, plaintiff questioned the propriety
of issuing such receipt and defendant contended that for
execution of re-conveyance deed in favour of plaintiff, a regular
agreement needs to be entered into and therefore, plaintiff was
constrained to enter into an agreement with the defendant for
purchase of suit property.
12. On 05.05.1992, defendant however, told the
plaintiff that another sum of Rs.2,50,000/- has to be paid for
execution of the suit agreement and therefore, she was
compelled to pay the same. On 05.06.1992, sum of
Rs.50,000/- was again paid by plaintiff to defendant and
plaintiff called upon the defendant to execute the sale deed.
However, with ulterior motive, again defendant playing trick did
not execute the sale deed and avoided the execution of the sale
deed. Finally, on 03.10.1994, defendant informed the plaintiff
that he will not execute any sale deed and demanded the
plaintiff to settle the matter amicably. Therefore, plaintiff was
constrained to file the suit.
13. Upon receipt of suit summons, defendant entered
appearance and filed written statement. In the written
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statement it is contended that suit is not maintainable and suit
relief cannot be granted as there is no cause of action. The
sale agreement is also denied by the defendant. It is further
contended that Smt.P.Karthiayani Amma wife of Sri P.Kumaran
Nair, who was the owner of the property and she has sold the
same to Sri Magaji Subbanna son of Sri Magaji Dondusa.
14. The consideration amount of Rs.30,000/- was paid
by paying the same of Rs.6,000/- to a person from Punjab at
the instructions of Smt.P.Karthiayani Amma and Sri P.Kumaran
Nair and thereby, defendant became the owner of the suit
property.
15. However, when the plaintiff wanted to get the
property back, the sale price was fixed at Rs.20,00,000/- and
plaintiff paid sum of Rs.2,00,000/- as advance. However, there
was no agreement to sell the property in favour of the
plaintiffs. Defendant denied the suit averments made in the
plaint and sought for dismissal of the suit.
16. Based on rival contentions the Trial Court raised
necessary issues and additional issues.
17. In order to prove the case of the plaintiff, plaintiff
got examined herself as PW1 and one witness by name Lalita
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as PW2. Plaintiff placed reliance on 32 documentary evidence
on record as which are exhibited and marked as Ex.P1 to
Ex.P32, comprising of following documents:
"Certified copy of the sale deed dated 18.11.1964;
Certified copy of the sale deed dated 18.11.1971;
Certified copy of the sale deed dated 10.11.1964;
Tax paid receipts; notice of the defendant; reply
notice by the plaintiff; Certified copy of the sale
dated 30.04.1966; Acknowledgement of the City
Corporation; Circular; Postal cover; Endorsement of
the City Corporation; Receipt dated 05.05.1992;
Undelivered postal cover; legal notice; Office copy
of the endorsement; Postal receipt; Receipt of
certificate of posting; Certified copy of the order in
MF No.787/2002; Office copy of the notice;
Intimation of Bangalore City Corporation; Intimation
of Bangalore City Corporation; Intimation of
Bangalore Mahanagara Palike; Copy of the letter
written by the plaintiff to Bangalore Mahanagara
Palike; Certified copy of the letter written by the
plaintiff to Bangalore Mahanagara Palike; Certified
copy of the statement of the defendant given to
Income Tax Officers; Certified copy of the balance
sheet submitted by the defendant to the Income Tax
Officers; Certified copy of the balance sheet
submitted by the defendant to the Income Tax
Officers; Certified copy of the Income Tax Returns
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submitted by the defendant; and Certified copy of
the Income Tax Returns submitted by the
defendant."
18. As against the evidence placed on record by the
plaintiff, defendant got examined himself as DW.1 and he has
relied upon 34 documents which are exhibited and marked as
Ex.D.1 to Ex.D.31, comprising of following documents:
" Xerox copy of the conditional sale deed; Xerox copy of
the sale deed' Xerox copy of the conditional sale deed;
lease agreement dt. 15.11.1971; Mortgage deed dated
26.05.1976; Receipt dated 26.05.1976; Copy of the
Income Tax Returns; Intimation letter of the Income Tax
Department; Acceptance to Income and assets tax;
Assessment of Property tax for the year 1976-77; Receipt
regarding Property tax; Acknowledgement of Income Tax
Department; Property Tax Assessment; Clearance
certificate of income tax department; Receipt regarding
assessment of income tax; Income tax assessment for
the year 1979-1980; Income tax assessment for the year
1980-1981; Intimation given by Bangalore Mahanagara
Palike; Khatha certificate; and Tax paid receipts."
19. On conclusion of recording of evidence, learned trial
Judge heard the parties in detail and on cumulative
consideration of the oral and documentary evidence placed on
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record by the parties, decreed the suit of the plaintiff in part by
ordering refund of sum of Rs.4,50,000/- with 6% interest and
dismiss the suit for specific performance.
20. Being aggrieved by the said judgment and decree,
plaintiff has preferred with present appeal on the following
grounds.
21. Reiterating in the grounds at in the appeal memo,
the Sri.Vishnu Hegde, learned counsel for appellant vehemently
contended that the suit schedule property earlier belonged to
the mother of the plaintiff is not in dispute. According to the
plaintiff, for a hotel business, mother of the plaintiff obtained a
sum of Rs.30,000/- as loan by mortgaging the suit property. It
is also argued that the loan transaction was styled as sale deed
with a condition to re-convey the property infavour of the
mother of the plaintiff, if the mother of the plaintiff pays the
entire loan amount along with accrued interest. But mother of
the plaintiff though repaid the entire amount, did not get the
re-conveyance deed from the Magaji Subbanna. Thereafter,
mother of the plaintiff died and therefore, plaintiff was
constrained to approach the defendant with the mediators
whereunder it was agreed that the property was agreed to be
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sold in a sum of Rs.2,00,000/- and later on, the defendant
agreed to execute the re-conveyance deed provided another
Rs.2,50,000/- is paid and ultimately plaintiff paid entire
Rs.4,50,000/- as demanded by the defendant. Despite the
same, re-conveyance deed is not executed on flimsy reasons
and sought for specific performance of the agreement to sale
executed on 05.05.1992 and sought for allowing the appeal.
22. He further contended, the oral evidence placed on
record by the plaintiff in this regard along with the
documentary evidence marked as Ex.P.1 to Ex.P.32, is not
properly appreciated by learned trial Judge in the impugned
judgment and sought for allowing the appeal.
23. He further emphasized that the contents of
mortgage deed (the defendant contends that the absolute sale
deed) itself establish that it was only a mortgage transaction
and not the sale transaction. Mere nomenclature of the
document would not result in settling the rights of the parties
as absolute sale and it is settled principle of law that the
intention of the parties must be inferred by the Court by
reading the contents of the documents in toto and if such an
exercise is carried out, the transaction entered into by the
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mother of the plaintiff with the Magaji Subbana is none other
than a loan and mortgage transaction. But said aspect of the
matter is not properly appreciated by the learned Trial Judge in
the Court below and wrongly dismissed the suit of the plaintiff
is and sought for allowing the appeal.
24. Per contra, Sri Narasimhaswamy, learned counsel
for respondent contended that during the lifetime of
Smt.Kantayinniamma, she did not seek of cancellation of
alleged mortgage deed. He further contended that it was a out
right sale transaction and Magaji Subbanna has paid sum of
Rs.30,000/- as the sale consideration and out of which, sum of
Rs.6,000/- was paid to a person from Punjab, as is found from
the very contents of document itself, to vacate and hand over
the premises and thereby Magaji Subbanna became absolute
owner of the property and defendant has became the owner of
the property by virtue of the will executed by Magaji Subbanna.
As such, the contentions urged on behalf of the appellant
cannot be countenanced in law and sought for dismissal of the
appeal.
25. He also emphasized that sale transaction is to be
considered as a mortgage transaction as is contended on behalf
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of the appellant, during the lifetime of Smt.Kantayyiniamma,
there should have been legal proceedings whereby the property
ought to have been re-conveyed to the mother of the appellant.
When no such attempt is made by the mother of the appellant,
the appellant cannot now seek any right with regard to the sale
deed executed by Smt.Kantayyiniamma infavour of Magaji
Subbanna.
26. He further contented that if it is not an absolute
sale infavour of Magaji Subbanna by mother of the plaintiff,
there was no necessity for the plaintiff to enter into an
agreement on 05.05.1992.
27. He further pointed out for taking advantage of
inadvertent spelling mistake in the agreement, the appellant
wanted to knock off the property worth more than
Rs.20,00,000/- for sum of Rs. 2,00,000/- and which has been
rightly refused by the defendant. Therefore, the plaintiff cannot
now contend that the property was agreed to be sold only for
sum of Rs.2,00,000/-.
28. He also emphasized that if it is only sale
consideration is sum of Rs.2,00,000/- as is contended by the
appellant, there was no necessity for the plaintiff to pay
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another sum of Rs.2,50,000/- and in all Rs.4,50,000/- in
respect of the suit property and as such, the plaintiff has not
approached the Court with clean hands which is a sine-qua-
non, whenever a person seeks a discretionary order of grant of
specific performance and said aspect of the matter has been
thoroughly appreciated by the learned trial Judge in the
impugned judgment by denying any decree for specific
performance and ordering return of money of with interest
@6% which the defendant is ready to comply and therefore
sought for dismissal of the appeal.
29. In view of the reveal contents to the party, this
Court perused the material on record meticulously. On such
meticulous perusal of the material on record, the following
points would arise for consideration:
"(1) Whether the plaintiff has successfully
established that she was always ready and willing to
the perform her part of the contract and thereby she
is entitled for specific enforcement of the agreement
to sale dated 05.05.1992?
(2) Whether the impugned judgment is suffering
from legal infirmity or perversity and thus call for
interference?
(3) What order?"
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REGARDING POINT NOS. 1 & 2 :
30. In the instant case, though defendant has taken a
stand in the written statement that the suit agreement is
disputed, the payment of Rs.2,00,000/- and further sum of
Rs.2,50,000/- is established by plaintiff by placing cogent and
convenience evidence on record. There is no proper explanation
offered by the defendant for receipt of a sum of Rs.4,50,000/-.
31. Further, the defendant has not preferred any appeal
against the judgment of the learned trial Court nor filed any
cross objections or cross appeal with regard to the return of
advance amount of Rs.4,50,000/- with interest at 6% in the
impugned judgment. Therefore, the finding with regard to the
execution of the agreement and payment of advance amount
need not be gone into by this Court in this appeal.
32. Resultantly, the sole question that needs to be
addressed by this Court by re-appreciating the material on
record is whether the material on record is sufficient enough to
hold that the plaintiff was always ready and willing to perform
her portion of the contract in the agreement sale dated
05.05.1992.
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33. In that regard, if the material on record is
appreciated, though plaintiff has contended that the property
was actually mortgaged to the Magaji Subanna, the fact of he
entering into agreement and making a claim on the basis of the
agreement itself establishes that the title with regard the suit
property in redundant. The fact remains that Magaji Subbanna
has executed a Will infavour of the defendant and thereby
defendant became the owner of the property.
34. After payment of Rs.2,00,000/- on 05.05.1992 and
a sum of Rs.2,50,000/-, there is no material on record which
would indicate that the plaintiff was willing to get the sale deed
executed in her favour by paying balance sale consideration.
On the contrary, plaintiff has gone on changing her stand
stating that she has been duped to sign the agreement and
defendant went on playing trick after trick in getting the
amount extracted from the plaintiff. Such a contention on
behalf of the plaintiff, could not have been taken when she has
laid the claim on the basis of the agreement dated 05.05.1992
which is the suit agreement. It is settled principles of law and
requires no emphasis that a plaintiff cannot be allowed to take
contrary pleas.
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35. As per the rules pleadings, defendant is entitled to
take not only alternate pleas, but also mutually destructive
pleas. In the case on hand, the defendant is consistent in
making his case before the Court stating that the transaction
entered into by the mother of the plaintiff in favour of Magaji
Subbanna was a absolute sale.
36. Having come to know that the plaintiff would not be
in a position to get the property re-conveyed by paying the
amount of Rs.30,000/- and interest as is contended by the
plaintiff, as a last resort, she wanted to purchase the property
by virtue of the sale agreement dated 05.05.1992. When such
is the unequivocal say of the plaintiff in the pleadings, it is for
the plaintiff to establish that she was always ready and willing
the perform the remaining porting of the contract as per the
agreement dated 05.05.1992 and get the sale deed registered.
37. Material evidence on record in this regard, would
clearly to show that plaintiff was never willing to pay the
balance sale consideration and get the sale deed executed in
her favour. Taking note of the these aspects, learned trial
Judge came to be conclusion that though suit agreement stands
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proved and ordered passed return of the advance money with
the 6% interest.
38. The impugned judgment is in Kannada language
and the relevant portion with regard to readiness and
willingness of the plaintiff is discussed in Para-37 of the
impugned judgment. There is a specific finding recorded by the
trial Court that the plaintiff has failed to prove what exactly is
the sale consideration by placing the oral and documentary
evidence on record. The trial Court has also recorded a
categorical finding that the plaintiff is not sure whether she
wants re-conveyance of the property by virtue of the contents
of the sale deed dated 18.11.1971 (Ex.P2) or she wants specific
performance of the agreement dated 05.05.1992 - marked at
Ex.P16.
39. In this regard, in order to re-appreciate the material
on record, this Court bestowed its attention to contents of
Ex.P16. Ex.P16 is a receipt having passed on by the defendant
to the plaintiff. The contents of Ex.P16 are as under:
"M. M. Anantha Murthy PHONE: 321214
73, 1st N. BLOCK,
RAJAJINAGAR,
BANGALORE-560010
Date : 5th May 1992.
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Received a Demand Draft bearing No. B.No.
432073 on Karnataka Bank, Yeshwanthpur Branch,
Bangalore dated 4/5/1992 for Rs. 2,00,000/- (Two
Lakhs only) from Smt. Ragini, as an advance
towards the sale of property situated at No. 35/10,
Model Colony, Yeshwanthpur, Bangalore - 22.
Sd/-
(M. M. ANANTHA MURTHY)"
40. According to the plaintiff, the receipt dated
05.05.1992 is the suit agreement. The contents of Ex.P16
would clearly go to show that payment of Rs.2,00,000/- is only
advance towards the sale of the property.
41. Thus, what remains on record is self serving
testimony of PW1 and the document in support of her
testimony in the form of Ex.P16, which did not specifically
establish what is the sale consideration and what was the
intention of the parties and what was the total amount that the
appellant was required to pay for sale of the property in her
favour nor Ex.P16 would go to show that a sum of
Rs.2,00,000/- was paid towards re-conveyance of the property
in furtherance of the deed that has been executed on
18.11.1971 by the mother of the plaintiff.
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42. Plaintiff sought corroboration of her case by
examining PW2-Lalitha, who is sister of the plaintiff. She
deposed that the plaintiff is first younger sister of PW2 and she
has also narrated about transaction that has been took place
between Magaji Subbanna and her mother Kathyayiniamma.
In her cross-examination, she admits that in Ex.P16, it is not
written that the payment of Rs.2,00,000/- is towards over all
settlement. Further, for a specific question that defendant
obtained the loan from the bank by mortgaging the schedule
property as he was the owner of the property, she denied the
suggestion.
43. She admits that mutation of the revenue entries
were not challenged by the plaintiff or any family members of
Kathyayiniamma, after her death. She admits that she was not
present when Ex.P16 was executed in favour of the plaintiff by
the defendant. If she was not present when Ex.P16 came to
executed, she is incompetent to speak about terms of the sale.
Therefore, oral evidence of PW2 also would not improve the
case of the plaintiff any further extent. As against the evidence
placed on record by plaintiff, the defendant has come out with
a theory that actually the defendant was not interested in
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selling the property. But looking at the desire expressed by the
plaintiff to repossess the property that has been sold by her
mother and out of respect, he agreed to re-convey the property
if the plaintiff were to pay the sale consideration in a sum of
Rs.20 lakhs. In that regard, only a sum of Rs.2,00,000/- was
paid by the plaintiff as advance sale consideration on
05.05.1992 vide Ex.P16 and subsequent payments are also
received only towards the sale consideration and as such the
balance sale consideration was not paid by the plaintiff,
defendant was not obliged to execute the sale deed in favour of
the plaintiff, which has been rightly appreciated by the learned
trial Judge in the impugned judgment and hence sought for
dismissal of the appeal.
44. On cumulative consideration of the oral and
documentary evidence placed record and having regard to the
scope of the appeal as referred to supra, this Court is of the
considered opinion that in the first place, the receipt Ex.P16
could not be construed as an agreement of sale as there is no
terms and conditions which could par take the nature of the
concluded contract.
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45. Nevertheless, the oral evidence on record would go
to show that if the entire sale consideration as agreed between
the parties has been paid by the plaintiff, probably defendant
was interested in selling the property to the plaintiff. When
such evidence is not placed on record by the plaintiff to show
that she was always ready and willing to perform her portion of
the contract by paying entire sale consideration of Rs.20 lakhs
as is found from the record, the learned trial Judge was
justified in refusing decree for specific performance and
ordering refund of Rs.4,50,000/- along with interest at the rate
of 6% per annum, taking note of the fact that the defendant
had unjust enrichment as is found in Section 72 of the Contract
Act.
46. A Division Bench of this Court while considering
similar situation in RFA No.166/11 DD 08.11.2014, in the case
of M/s Wellesly Corporation Limited VS Kalavathi and others, in
paragraph No.10 has held as under:
"10. Furthermore, in the light of the deposit made
by the plaintiff of the amount of Rs. 22,00,000/- in
the State Bank of Mysore on 27-3-2000, the trial
court was justified in ordering refund of Rs.
22,00,000/- which is in deposit with the said bank,
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at the prevailing rate of interest at 10% per annum
from the date of termination till the date of deposit.
We are of the considered view that the award of
interest for the relevant period is just and
appropriate. Since the amounts have been
deposited, the plaintiff is entitled for refund of the
amount with interest at 24% only for the period
from the date of termination of the agreement till
date of such deposit.
Accordingly Issue No. 1 is answered by affirming
the Judgment of the trial court by holding that the
Trial Court was justified in decreeing the suit only
for refund of the a mount paid and not specific
performance of contract. The second issue is
answered by holding that non-demand of specific
performance of the contract and demand only for
refund of money, would in law amount to waiver of
the right to seek specific performance. The Issues
are accordingly answered."
47. Having regard to the nature of transaction and also
defendant having denied the receipt of another sum of
Rs.2,50,000/- and material on record establishes that
defendant has received Rs.4,50,000/-, this Court is of the
considered opinion that if the defendant is ordered to repay a
sum of Rs.4,50,000/- along with interest at the rate of 12% per
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annum as against 6% per annum, as ordered by the learned
trial Judge, the ends of justice would be met.
48. Accordingly, point No. 1 is answered in the negative
and point No.2 is answered partly in the affirmative.
REG. POINT NO.3:
49. In view of finding of this Court on Point Nos.1 & 2,
following order is passed:
ORDER
(i) Appeal is allowed in part.;
(ii) While maintaining the decree of refund of the
advance of Rs.4,50,000/-, instead of interest
at the rate of Rs.6% per annum, defendant is
directed to pay interest at the rate of 12% per
annum from the date of suit till realization.;
(iii) No order as to costs.
(V SRISHANANDA)
JUDGE
KAV
VK
