Karnataka High Court
Smt Prabhavati W/O Bharama Ambewadi vs Bahubali S/O Yallappa Hanamannawar on 28 January, 2025
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RFA No. 100082 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
R
DATED THIS THE 28TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100082 OF 2017
Between:
1. Smt. Prabhavati
W/o Bharama Ambewadi
Age: 70 years, Occ: Household Work,
R/o: Hanamannawar Galli,
Angol, Belagavi,
Taluk and District Belagavi-590001
2. Sri Satish Bharama Ambewadi
Age: 41 years, Occ: Business,
R/o: Hanamannawar Galli,
Digitally signed by Angol, Belagavi,
VEERENDRA
KUMAR K M Taluk and District Belagavi-590001
Location: HIGH
COURT OF 3. Seema Bharama Ambewadi
KARNATAKA Age: 38 years, Occ: Household Work,
R/o: Hanamannawar Galli,
Angol, Belagavi,
Taluk and District Belagavi-590001
4. Sri Jinnappa, S/o Appayya Ambewadi
Age: 64 years, Occ: Agriculture,
R/o: Bhendigerigalli,
Angol, Belagavi,
Taluk and District Belagavi-590001
...Appellants
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RFA No. 100082 of 2017
(By Sri Arun Shyam, Senior Counsel for
Sri Girish V. Bhat, Advocate and
Sri Suyog Herele, Advocate)
And:
1. Bahubali,
S/o Yallappa Hanamannawar
since deceased by his LRS
1(A) Abhay, S/o Bahubali Hanamannawar
Age:40 years, Occ: Agriculture,
R/o: Hanamannawar Galli,
Angol, Belagavi,
Taluk and District Belagavi-590001
1(B) Prashant, S/o Bahubali Hanamannawar
Age:38 years, Occ: Agriculture,
R/o: Hanamannawar Galli,
Angol, Belagavi,
Taluk and District Belagavi-590001
(R1(A & B) amended vide order dated
31.07.2023)
2. Sri Ravi, S/o Tavanappa Patil
Age: 50 years, Occ: Agriculture,
R/o: H.No.380, Tanaji Galli,
Angol, Belagavi,
Taluk and District Belagavi-590001
...Respondents
(By Sri Srivatsa S., Senior Counsel for
Sri Shivraj S. Balloli, Advocate for R2;
R1(A) notice held sufficient; R1(B) served)
This RFA is filed under Section 96 of CPC against the
judgment and decree dated 03.01.2017 passed by the II
Additional Senior Civil Judge and Chief Judicial Magistrate,
Belagavi, in O.S.No.72/2011 and decreeing the suit filed for
specific performance of contract, damages and permanent
injunction.
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RFA No. 100082 of 2017
Date on which the appeal was
18.12.2024
reserved for judgment
Date on which the judgment was
28.01.2025
pronounced
This appeal, pertaining to Dharwad Bench, having been
heard and reserved, coming on for pronouncement this day
through video conference at Bengaluru Bench, judgment was
delivered therein as under:
CORAM: HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER:HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR)
The legal representatives of the first defendant, and
the second defendant are in appeal against the judgment
of II Additional Senior Civil Judge and CJM, Belagavi, in
O.S.No.72/2011.
2. The plaintiffs sought specific performance of
agreement dated 17.2.2010, and alternatively claimed
refund of earnest money of Rs.35,00,000/- from the
defendants. The agreement was in respect of two items of
property, 1.22 acres of land in R.S.No.180 of Angol Village
and 7 guntas out of 29 guntas 7 annas in S.No.179/1 of
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Angol Village, both situate in Belagavi taluk and district
(suit properties). The plaintiffs pleaded that the
defendants had earlier entered into an agreement of sale
with one Rajendra Gaikwad in respect of the same
property, and after the defendants made it clear that their
agreement with Rajendra Gaikwad had been cancelled, the
plaintiffs contracted with the defendants to purchase the
suit properties for a consideration of Rs.75,90,000/- and
thus an agreement came into existence on 17.02.2010.
They stated that they first paid Rs.15,00,000/- to the
defendants and agreed to pay the balance consideration
money in three installments on or before 15.04.2010,
15.06.2010 and 15.08.2010. They stated to have paid
Rs.20,00,000/- on 15.04.2010 to the defendants, who,
having received the said sum executed an irrevocable
general power of attorney in their favour in respect of suit
properties. The defendants agreed to execute a
supplementary agreement for having received
Rs.20,00,000/- on 15.04.2010, but they didn't. Later on
the plaintiffs came to know that the agreement between
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the defendants and Rajendra Gaikwad had not been
cancelled, and then they met the defendants to express
their readiness and willingness to complete the sale
transaction as per the terms and conditions of the
agreement. The defendants did not settle the dispute with
Rajendra Gaikwad even though the plaintiffs were always
ready to perform their part of the contract including to
make payment of balance sale consideration. The
plaintiffs also stated that they entered into contract with
defendants with a view to developing the land, and in fact
they spent huge amount for leveling the land. To their
surprise, the defendants issued a notice to them on
02.11.2010 making false allegations and denying the
agreement dated 17.02.2010. Thereafter the plaintiffs
replied to the said notice and expressed their readiness
and willingness. They also came to know that Rajendra
Gaikwad had filed a suit for specific performance,
O.S.No.38/2011 against the defendants. And ultimately
they instituted the suit learning that the defendants were
avoiding to execute the sale deed.
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3. The defendants admitted their transaction with
Rajendra Gaikwad and the cancellation of the agreement
with him. They also admitted the agreement with
plaintiffs, but contended that payment of consideration as
stipulated in the agreement was the condition precedent to
complete the sale transaction. The plaintiffs failed to
make payment as agreed by them and they were not
ready and willing to perform their part of the contract.
Noticing the plaintiffs' failure to make payment, they
issued a notice to them and cancelled the agreement.
They suspected collusion between the plaintiffs and
Rajendra Gaikwad. And as regards the plaintiffs' claim for
refund of Rs.35,00,000/-, they stated that the plaintiffs
paid them only Rs.15,00,000/- and no further payment of
Rs.20,00,000/- was made to them. Stating that they were
under no obligation to execute the sale deed and make
repayment of Rs.35,00,000/-, they prayed for dismissal of
suit.
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4. The trial court framed seven issues. The first
issue relating to proof of agreement dated 17.02.2010 by
the plaintiffs was unnecessary to be raised as defendants
have not disputed the execution of agreement and
cancellation of their first agreement with Rajendra
Gaikwad. Issue No.2 pertains to plaintiffs' proving
payment of Rs.20,00,000/- to the defendants on
15.04.2010. Issue No.3 is in regard to establishing
readiness and willingness by the plaintiffs to perform their
part of the contract; and issues 4, 5 and 6 relate to the
reliefs that the plaintiffs have claimed. Answering issues
Nos.2, 3 and 4 in affirmative, the trial court decreed the
suit directing the defendants to execute the sale deed in
favour of the plaintiffs by receiving balance sale
consideration of Rs.40,90,000/-. Hence this appeal by the
defendants.
5. The defendants/appellants have filed I.A.1/2023
under Order 41 Rule 27 of CPC to produce three
documents by way of additional evidence. The
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respondents/plaintiffs have also filed three applications
I.A.1 to I.A.3/2024. I.A.1/2024 under Order 6 Rule 17 of
CPC to amend the plaint in order to plead about
agreement dated 04.05.2010 executed by defendants in
favour of one Pradeep Siddoji Murkute, compromise
between Rajendra Gaikwad and the defendants in
O.S.No.38/2012, another supplementary agreement
executed by the defendants in favour of Rajendra Gaikwad
on 15.08.2012, certain answers given by DW1 in the cross
examination and collusion between defendants and
Rajendra Gaikwad.
6. I.A.2/2024 is made under Order 41 Rule 27 of
CPC to produce agreement of sale dated 04.05.2010
executed by the defendants in favour of Pradeep Siddoji
Murkute and I.A.3/2024 is filed under Order 1 Rule 10 CPC
to implead totally seven persons including Rajendra
Gaikwad and Pradeep Siddoji Murkute as additional
defendants. In addition to these three applications, the
second respondent in the appeal, Ravi Tavanappa Patil
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filed his affidavit in order to place on record certain
subsequent transactions. The appellants/defendants have
filed statement of objections to these applications.
7. It is not necessary to decide all these
applications, as the appeal can be decided even without
receiving additional evidence sought to be produced by
either side and without granting amendment to plaint and
permitting the plaintiffs to implead some persons, in view
of the fact that Sri. Arun Shyam, learned senior counsel
appearing for appellants' counsel confined his argument to
one point relating to time being essence of contract.
7.1. He put forth his argument in this way; The
agreement of sale dated 17.02.2010 contains payment
schedule. If the purchasers would fail to make payment in
accordance with that schedule, they are not entitled to
claim specific performance. The plaintiffs paid
Rs.15,00,000/- on the date of agreement and did not
make payment thereafter. They claim to have paid
Rs.20,00,000/- on 15.04.2010, but it has no proof. The
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trial court has wrongly held that Rs.20,00,000/- was paid
by the plaintiffs to the defendants even though it has held
that there is no supporting evidence for payment. The
trial court has assumed that payment of Rs.20,00,000/-
was probable because of execution of general power of
attorney in favour of plaintiffs by defendants. This kind of
a finding cannot be sustained, inasmuch as execution of
GPA had nothing to do with payment of consideration
amount. If really Rs.20,00,000/- had been paid by the
plaintiffs on 15.04.2010, they could have insisted on a
receipt to be issued or obtained an endorsement regarding
payment on the agreement itself. So in the absence of
evidence, the inference ought to have been drawn that
there was no payment according to agreement stipulations
and thereby the plaintiffs cannot demand specific
performance.
7.2. The plaintiffs did not issue notice to the
defendants expressing their readiness and willingness.
But when the defendants got issued a notice to plaintiffs in
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order to convey them that the agreement had been
cancelled in view of failure to adhere to payment schedule
by the plaintiffs, they issued a reply stating that they were
ready and willing to perform their part of contract.
Therefore it can be inferred that the plaintiffs were not at
all ready and willing. Payment of consideration amount as
indicated in the agreement was a condition precedent, and
moreover the other conditions in the agreement would
further make it clear that the payment was not dependent
on completing other legal formalities. As a whole, the
terms of contract indicate that time was essence of the
contract and the plaintiffs, having failed to strictly adhere
to payment schedule, and the agreement having been
cancelled, the trial court should not have decreed the suit,
that too when the cancellation of agreement was not
challenged by the plaintiffs. The defendants have already
deposited the consideration money that they received from
the plaintiffs.
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8. Sri. Srivasta, learned senior counsel appearing on
behalf of Sri. Shivaraj S Balloli argued that the trial court's
decision to grant decree of specific performance cannot be
said to be erroneous because, it has very well appreciated
oral and documentary evidence. The defendants do not
dispute the agreement and payment of Rs.15,00,000/-.
Even though agreement would stipulate payment of
balance of sale consideration in three installments on
different dates, the said payment schedule cannot be
construed as time being essence of contract, and in fact
the plaintiffs made payment of Rs.20,00,000/- to the
defendants on 15.04.2010. The defendants do not dispute
execution of GPA by them in plaintiffs' favour; unless there
was payment of Rs.20,00,000/- on 15.04.2010 the
defendants would not have executed GPA in favour of
plaintiffs. Payment of Rs.20,00,000/- has been testified
by PW3. The plaintiffs have a reason for not issuing notice
to the defendants as by that time they had come to know
that Rajendra Gaikwad had filed a suit for specific
performance against defendants. Anyway when they
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received notice issued by the defendants, they replied to it
immediately and stated therein that they had made further
payment of Rs.20,00,000/- as per agreement stipulations.
The plaintiffs are interested to buy the suit property. They
have proved their readiness and willingness. The terms of
the agreement do not indicate that time is the essence of
contract. The defendants have been suppressing material
facts from the beginning. In fact after executing an
agreement in favour of plaintiffs, they entered into
contract with some others, which fact has been
suppressed by them. Even they cancelled the agreement
with Rajendra Gaikwad and without any reason they
issued a notice to the plaintiffs stating that they had
canceled the agreement with them, which they cannot.
There is no need to challenge that notice. The evidence of
DW1 is so clear that he does not want to sell the suit
properties to the plaintiffs at the agreed rate. He wants
more money and the plaintiffs are ready to pay any sum
more than the agreed consideration and this court can
reasonably enhance the consideration amount to be paid
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to the defendants. With this he argued for dismissing the
appeal.
9. In the light of arguments put forward by learned
counsel for the parties, the points that arise for discussion
are:
i. Whether the trial court ought to have held
that time was essence of the contract and
thereby dismissed the suit?
ii. Whether judgment of trial court can be
sustained with or without modification?
POINT NO.(i):
10. The concept of time being essence of contract is
found in Section 55 of the Indian Contract Act which reads
as under:
"55. Effect of failure to perform at a
fixed time, in contract in which time is
essential. - When a party to a contract promises to
do a certain thing at or before a specified time, or
certain things at or before specified times, and fails
to do any such thing at or before the specified time,
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the contract, or so much of it as has not been
performed, becomes voidable at the option of the
promisee, if the intention of the parties was that
time should be of the essence of the contract.
Effect of such failure when time is not
essential.--If it was not the intention of the parties
that time should be of the essence of the contract,
the contract does not become voidable by the
failure to do such thing at or before the specified
time; but the promisee is entitled to compensation
from the promisor for any loss occasioned to him by
such failure.
Effect of acceptance of performance at time
other than that agreed upon.--If, in case of a
contract voidable on account of the promisor's
failure to perform his promise at the time agreed,
the promisee accepts performance of such promise
at any time other than that agreed, the promisee
cannot claim compensation for any loss occasioned
by the non-performance of the promise at the time
agreed, unless, at the time of such acceptance, he
gives notice to the promisor of his intention to do
so."
11. No doubt whenever a party to a contract on
whom performance of an obligation lies, fails to do it
within agreed time, the other party to the contract gets a
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right to avoid the contract, but, such a right is not always
absolute. Whether time is essence of contract or not
depends on intention of parties. In spite of an express
stipulation being there in the contract, still time factor
cannot be urged to avoid the contract; it depends on facts
and circumstances of each case. But in a contract for sale
of an immovable property, the general proposition is time
is not essence of contract. If the vendor treats time to be
essence of contract, the burden is upon him to prove it.
As it is a factual aspect, it must be expressly pleaded.
12. In this case, the defendants have not pleaded
that time was essence of contract, and probably for this
reason the trial court did not frame an issue in that regard
and therefore there did not arise any occasion for the trial
court to deal with it. Sri Arun Shyam referred to para 14
of the written statement and argued that from what is
stated there, an inference can be drawn that the
defendants meant time to be essence of contract. In the
said para it is stated that the plaintiffs had agreed to pay
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the entire agreed amount within the stipulated period as
stated in the agreement and payment of agreed amount
was the condition precedent for completion of legal
formalities. It is further averred that the plaintiffs were
not in a position to pay the agreed amount and did not
comply with terms of the agreement, and for which reason
they issued a notice canceling the agreement. These
averments do not indicate that a time frame was set for
completion of contract, at the most these sentences may
convey a meaning that balance of consideration was
required to be paid on or before certain dates. If time is
essence of contract according to the vendor, he must
plead about it specifically and provide proof for that.
Pleading is a statement containing assertion of material
facts, and in relation to issues that arise from the
pleadings, evidence must be provided by the party on
whom burden of proof lies. If any inference is to be
drawn, it is only from the evidence brought on record and
not from the pleadings. Therefore no inference as to time
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being essence of contract can be drawn from para 14 of
the written statement.
13. The argument of Sri Arun Shyam cannot be
accepted for yet another reason. On the aspect of time
being essence of contract, the trial court did not frame an
issue as there was no pleading to that effect in the written
statement. And obviously there is no finding on that
matter. Therefore in the appeal, the appellant cannot
raise that point. Appeal is not defined in Code of Civil
Procedure. But the meaning that can be assigned is that
appeal is nothing but complaint against judgment of trial
court. The party who makes complaint in the form of
appeal must point out errors in the judgment of the trial
court.
14. If cross-examination of PW1 is seen, a
suggestion was given to him that in para 5 of Ex.P24 it is
stated that time was made essence of contract, and then
drawing his attention to para 7 of Ex.P24, an answer was
extracted from him that its contents are correct. Ex.P24 is
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the certified copy of application filed under Order 23 Rule
3 of CPC in the suit filed by Rajendra Gaikwad against the
defendants. The trial court has just referred to Ex.P24 as
one of the documents marked on behalf of the plaintiffs
and there is no discussion on it. Probably the plaintiffs
produced Ex.P24 to prove that the suit filed by Rajendra
Gaikwad ended in a compromise. Merely for the reason
that PW1 admitted that there is a stipulation in Ex.P24
that time was essence of contract, such a condition cannot
be extended to contract between the plaintiffs and the
defendants. And for this reason there is no scope for
using Ex.P24 against the plaintiffs. Thus seen the
defendants cannot contend that time was essence of
contract, and there was no need for the trial court to give
a finding that time was essence of contract. Point No. (i)
is accordingly answered.
Point No. (ii)
15. Before answering this point, it is necessary to
examine the findings recorded by the trial court in regard
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to payment of Rs.20,00,000/- to the defendants on
15.4.2010. It is held by the trial court that the plaintiffs'
version about payment can be believed, and to arrive at
this conclusion, the trial court has believed the oral
testimony of PW3 and the fact of execution of power of
attorney, Ex.P18, by the defendants in favour of the
plaintiffs on 15.4.2010. So far as payment of
Rs.20,00,000/- on 15.4.2010 is concerned, PW1 has
stated in his affidavit that Rs.3,50,000/- was paid to
defendant No.2 through a cheque and Rs.16,50,000/- by
way of cash in presence of PW3. When he was cross-
examined with regard to mode of payment, he disclosed
that he had availed loan of Rs.3,50,000/- from Adinath
Cooperative Society and the said amount was credited to
the account of defendant No.2. And the plaintiffs would
try to prove that they paid balance of Rs.16,50,000/- in
the presence of PW3. But PW1 has clearly admitted that
he has no document to show total payment of
Rs.20,00,000/- on 15.4.2010. PW1 has answered in the
cross-examination that nothing is stated in Ex.P17 about
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payment of Rs.3,50,000/- to defendant No.2 on
17.2.2010. The trial court has considered certain answers
elicited from PW1 as indicative of payment of
Rs.3,50,000/- to the defendants. But it is very difficult to
accept the plaintiffs stand about making payment of
Rs.20,00,000/- on 15.4.2010. The plaintiffs must be
definite in their stand about making any payment. Instead
of stating in the plaint that Rs.20,00,000/- was paid, they
could have as well pleaded that Rs.3,50,000/- was
remitted to the bank account of defendant No.2 and the
balance was paid by way of cash. When they issued reply
to defendants' notice, they could have stated about bank
remittance and payment by cash in presence of PW3.
Instead they expect the court to draw inference about
payment of Rs.20,00,000/- with reference to execution of
power of attorney. Power of attorney might have been
executed by the defendants, but it is not a proof for
payment of money. If it contains a reference to payment,
it would have been a good piece of evidence. The
plaintiffs could have obtained endorsement on the
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agreement itself about the payment of Rs.20,00,000/-.
Therefore there is no probability in the plaintiffs' version in
this regard.
16. For exercising discretion to grant decree of
specific performance in favour of the plaintiffs, the trial
court has mainly relied on the answer of DW1 in the cross-
examination that if the plaintiffs were ready to pay
consideration at the increased rate on par with present
market value, they were ready to execute the registered
sale deeds in favour of the plaintiffs. It is true that DW2
has given answers like this. This shows clear intention of
defendants that they want escalation in sale consideration.
The other circumstances are also very important here. It
is not in dispute that they first entered into an agreement
with Rajendra Gaikwad and that they cancelled the
agreement. Thereafter they entered into contract with the
plaintiffs. Their intention as to why they wanted to sell the
suit property manifests from the terms of contract found in
Ex.P1. It is clearly recited that the party of the first part
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to the agreement, i.e., the defendants were not interested
to hold the property and hence they offered it for sale or
for development. Ex.P6 is the copy of the agreement with
Rajendra Gaikwad and it is clearly mentioned there that
the defendants were not interested to hold the property.
To be more clear Ex.P1 is almost replica of Ex.P6. It is not
the case of the defendants that they took the decision of
selling the suit property to meet some exigencies. It
shows their clear intention to sell as they were not able to
hold the possession. And in regard to the suit filed by
Rajendra Gaikwad, it appears that there was a settlement,
and that suit is not pending. In this view, in spite of the
fact that there is no acceptable evidence in regard to
making payment of Rs.20,00,000/- on 15.4.2010 still
discretion can be exercised in favour of the plaintiffs to
grant specific performance.
17. We may mention here that the parties were
directed to think of working out a solution at an escalated
price agreeable for both the parties keeping in mind the
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passage of 14 years since the date of agreement. While
the plaintiffs were agreeable, the defendants insisted on
present market value to which the plaintiffs were not
agreeable.
18. As it is found that the trial court is justified in
granting decree for specific performance, the judgment is
to be confirmed, but with a modification by increasing the
sale consideration. Though the view is that passage of
time and rise in the property value cannot be a ground for
denying the relief for specific performance, there are
instances where the specific performance has been
granted by directing the purchaser to pay additional sum
to the vendor by way of compensation. In this regard,
some judgments of the Supreme Court may be referred.
In Gobind Ram Vs. Gian Chand [AIR 2000 SC 3106]
the purchaser was directed to deposit a further sum of
Rs.3,00,000/- to be paid to the vendor noticing the
increase in the prices of real estate properties and also
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noticing the conduct of the vendor to wriggle out of
contract in view of escalation in price.
19. In another decision of the Supreme Court in
Satya Jain (D) Thr. LRs and Others Vs. Anis Ahme\d
Rushdie [AIR 2013 SC 434], it is held as below :
"29. The twin inhibiting factors identified
above if are to be read as a bar to the grant of a
decree of specific performance would amount to
penalizing the plaintiffs for no fault on their part; to
deny them the real fruits of a protracted litigation
wherein the issues arising are being answered in
their favour. From another perspective it may also
indicate the inadequacies of the law to deal with the
long delays that, at times, occur while rendering
the final verdict in a given case. The aforesaid two
features, at best, may justify award of additional
compensation to the vendor by grant of a price
higher than what had been stipulated in the
agreement which price, in a given case, may even
be the market price as on date of the order of the
final Court."
20. Sri Arun Shyam has relied on the judgment of
the Supreme Court in the case of I.S.Sikandar (dead)
by L.Rs vs K.Subramani and Others [(2013) 15 SCC
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27] in support of his argument that the plaintiffs ought
to have sought a declaration that termination of contract
was illegal. It is true that in para 37 of the cited judgment
it has been observed that the plaintiff has not sought for
declaratory relief to declare the termination of agreement
of sale as bad in law, and in the absence of such prayer by
the plaintiff, the original suit filed by him before the trial
court for specific performance and permanent injunction is
not maintainable in law. This observation of the Supreme
Court must be understood in the light of facts of that case.
The facts show that the vendors rescinded from the
contract by issuing a notice and called upon the plaintiffs
to return the original documents of the property and made
it clear that on the failure of the plaintiff to do so on or
before 10.4.1985 the agreement would stand terminated.
Thereafter the suit for specific performance came to be
filed. Defendants 1 to 4 were placed ex-parte in spite of
service of summons to them. The appellant therein got
impleaded stating that he had purchased the property
from defendants 1 to 4 under a sale deed dated
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30.5.1985. These facts show that property had been sold
subsequent to termination of the contract, probably this
could be the reason for such an observation being made
by the Supreme Court. In this case, the same is not the
position. Having regard to the scope of suit for specific
performance, even if it was pleaded that contract is
terminated, the purchaser can treat it as a breach of
contract to enforce specific performance. It is not
necessary that in all circumstances notice must be
challenged. The judgment cited by Sri Arun Shyam can be
distinguished on facts.
21. Now to determine the sum to be paid by the
plaintiffs to the defendants, we may adopt a simple
calculation. It is to be noted here that after the suit was
decreed the plaintiffs deposited a sum of Rs.40,90,000/-
before the trial court on 24.01.2017 towards the balance
sale consideration amount as per the decree. As our
discussion shows that the plaintiffs are still due in a sum of
Rs.20,00,000/- as their plea about making payment of this
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sum on 15.4.2010 is not acceptable, we have to calculate
the escalated value only with reference to this
Rs.20,00,000/-. It was brought to our notice from the
defendants' side during hearing that the present market
value of the entire suit property is Rs.13 crores. If we
calculate the present value of Rs.20,00,000/- which was
due as on 15.4.2010, it comes to Rs.3,42,55,599/- as per
the calculation made below :
13,00,00,000/75,90,000 x 20,00,000 =
3,42,55,599/- .... (a)
22. A sum of Rs.40,90,000/- is lying in court deposit
since 24.1.2017. That means for the last five years nine
months the said sum has not fetched any interest. If we
calculate the interest for five years nine months at the
highest possible rate of 18%, the interest works out to
Rs.42,33,150/-. ...... (b)
23. (a) + (b) = Rs.3,84,88,749/-.
24. We may add further sum to make a round figure
Rs.4,00,00,000/-. It is to be noted here that the plaintiffs
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were readily agreeable for paying this amount to the
defendants. We find that the sum of Rs.4,00,00,000/- is a
reasonable figure. Therefore from the above discussion
we proceed to pass the following :
ORDER
(i) Appeal is dismissed confirming the judgment
of the trial court but with a modification as
below :
(a) The defendants are directed to
execute sale deed of the suit property
in favour of the plaintiffs by receiving
a further sum of Rs.4,00,00,000/-
(Rupees Four Crores).
(b) The plaintiffs are hereby directed to
deposit Rs.4,00,00,000/- (Rupees
Four Crores) before the trial court
within three months from today.
(c) On failure of the defendants to
execute the sale deed in spite of
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deposit being made by the plaintiffs,
the latter can apply to court in
accordance with Order 21 Rule 32 or
34 CPC to have the sale deed
executed.
(d) There is no order as to costs.
(e) All the pending applications stand
disposed of.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
ckl
