Karnataka High Court
Sri. H. M. Paramesh @ Pratap vs Sri. B. V. Murthy on 28 June, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:24159
RSA No. 704 of 2018
C/W RSA.CROB No. 6 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.704 OF 2018 (SP)
C/W
RSA CROSS OBJECTION NO.6 OF 2018 (SP)
In R.S.A.No.704/2018
BETWEEN:
SRI B V MURTHY
S/O VENKATEGOWDA,
AGED ABOUT 57 YEARS,
R/O MANJUNATHA NILAYA,
3RD MAIN ROAD,
9TH CROSS ROAD,
HEMAVATHI NAGARA,
HASSAN-573201
Digitally signed
by DEVIKA M ...APPELLANT
Location: HIGH (BY SRI MAHESH A S, ADVOCATE [ABSENT])
COURT OF
KARNATAKA AND:
SRI H M PARAMESH @ PRATAP
S/O MUTHAPPA,
AGED ABOUT 46 YEARS,
R/AT AREHALLI VILLAGE,
K. HOSAKOTE HOBLI,
ALUR TALUK-573213
HASSAN DISTRICT.
...RESPONDENT
(BY SRI M SHIVAPRAKASH, ADVOCATE)
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NC: 2024:KHC:24159
RSA No. 704 of 2018
C/W RSA.CROB No. 6 of 2018
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.02.2018
PASSED IN R.A.NO.149/2016 ON THE FILE OF THE 5th
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
AND ETC.
IN RSA CROB. No.6/2018
BETWEEN
SRI H M PARAMESH @ PRATAP
S/O MUTHAPPA,
AGED ABOUT 46 YEARS,
R/AT AREHALLI VILLAGE,
K. HOSAKOTE HOBLI,
ALUR TALUK-573213
HASSAN DISTRICT. ...CROSS OBJECTOR
(BY SRI PRABHAKAR SHETTY S K, ADVOCATE)
AND
SRI B V MURTHY
S/O VENKATAGOWDA,
AGED ABOUT 57 YEARS,
R/O MANJUNATHA NILAYA,
3RD MAIN ROAD, 9TH CROSS ROAD,
HEMAVATHI NAGARA,
HASSAN-573201
...RESPONDENT
(BY SRI MAHESH A S, ADVOCATE)
THIS RSA CROB. IS FILED UNDER ORDER XLI RULE
22 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
02.02.2018 PASSED IN R.A.NO.149/2016 ON THE FILE OF
THE 5th ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN AND ETC.
THIS RSA AND RSA CROB COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 704 of 2018
C/W RSA.CROB No. 6 of 2018
JUDGMENT
The counsel for the appellant has not paid the cost of
Rs.2,000/- imposed by this Court vide order dated
31.05.2024 and further cost Rs.1,000/- on 14.06.2024
and paper book is also not filed. The counsel for the cross
objector also served the copy of the cross objection on the
counsel appearing for the appellant in this appeal as
directed by this Court on 14.06.2024. But, the counsel for
the appellant is not pursuing the matter diligently.
Accordingly, R.S.A.No.704/2018 is dismissed for non-
prosecution.
2. This cross objection is filed before this Court
praying the Court to set aside the judgment and decree
dated 02.02.2018 passed in R.A.No.149/2016 to the
extent of passing an order that the plaintiff is entitled for
refund of earnest amount of Rs.3,00,000/- from the
NC: 2024:KHC:24159
defendant at the rate of 9% p.a., interest from the date of
agreement to the date of realization.
3. In this cross objection only raised the
substantial question of law that whether a Court has
discretion to mould prayers to grant relief's which is not
sought for by a party and for which there is no foundation
laid in pleadings. The question in this cross objection is
with regard to refunding of the amount as ordered by the
First Appellate Court.
4. Having considered the judgment of the Trial
Court in paragraph 24, a clear finding is given that the
plaintiff has proved the factum of payment of
Rs.3,00,000/- and after the decree at the first instance,
the plaintiff has deposited Rs.5,00,000/- before the Court
and apart from that to prove that the plaintiff had means
before filing of the suit, he has produced his passbook
which reveals that he has sufficient sum in the year 2007
i.e., at the time of filing of the suit to make payment of
Rs.5,00,000/-, the balance sale consideration. Hence, the
Trial Court comes to the conclusion that the plaintiff has
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proved that he is always ready and willing to perform his
part of the contract. Having taken note of said fact into
consideration, the First Appellate Court while reversing the
finding given the reason for not entitled for relief of
specific performance however, directed to pay the amount
of Rs.3,00,000/- which has been received with interest at
the rate of 9% p.a. The counsel appearing in cross
objection submits that the amount of Rs.3,00,000/- also
deposited before the Trial Court hence, not entitled to pay
the interest from the date of deposit. Even, if any such
deposit is made before the Trial Court, from the date of
agreement, the respondent is liable to pay the interest at
the rate of 9% p.a. till the date of deposit. Accordingly,
the cross objection is disposed of.
Sd/-
JUDGE
SN
