Between:
1.
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT
DPIARWAD
DATED THIS THE 5"' DAY OF FEBRUARY 2Q.3_Gf i]f~
BEFORE
THE HON']3{,E MR. JUSTICE MA1szJLIN;A-TH '
AND: I
THE HON'BLE MR. JUSTICETARAYIN1t)'ICVUMAR
R.F.A. NO';--.E'T92/1:_002§' .9}
Mr. Jagadeesh siadappa T'._ati=:1, " ff
Aged 59 yea__rs~, :1/9 Kajaabargi;
Belgaum, TEiE§1k£§_<3£ Diust BeIga;:1n459'Q 001.
For selfvand, as Pdwer of Attemeyw.
Holder pf Appel.1;aVn;V_i«lQs.-- 'to___5._ _'
Smt. Mallaiiai 0
Aged 56 years, 1°,'oV_Kanabargi,
'~ ..vI?3e1g§1'Ltm:_,_DTaIuka & 'Di-s-t.'Be1gaum--590 001.
T' "i§i::dd.appa Patil,
Age'd_5 3' "ye'a_rs, ' 1:'/'0" Kanabargi,
BeIg_eum,V.Tai';;ka & Dist. Belgaum--590 001.
"Smt. Rekhe w/0 J agadev Kabade,
' ,fAged..46 years, r/0 Kanabargi,
C _ Eeigaum, Taluka & Dist. Belgaum-590 001.
5. Sri Virendra s/0 Siddappa Patil,
Aged 38 years, r/o Kanabargi,
Belgaum, Taluka & Dist. Belgaum--590 001.
(by Sri G. Balakrishna Shastry, Advocate)
and
Smt. Merry W/o Fredrick I-Iongal, "
Aged 58 years, Major, Occ: I-Iousehold worl<,' ._ -A A . V
R/0 Oid Mission Compound, Near DCC_Bank, " '
Old P.B. Road, Belgaum. A
_ ;_~ .V __- Respondent
(by Sri V.P. Kulkarni and K. Shrihari – i’Advocates_}.~.v
This R.F.A. is mti,/sea. 9,6–i5f Cli§'(f~i,aga_’iiisti the judgment and
decree dated 30.l0520Q45l.pa.ss’ed_: .Q.S:.’ No. 234/1998 on the file of
the HI Addl. Civil }i1dge.r_(Sr’;’ Dn;’).,’r’BAeigauni, ipartly decreeing the suit
for specific perforniance.
This fietition for orders on this day,
K.L.Manj unath.J, delivered the following judgment.
‘I r ….. .. «Judgrnent
1. T’lioiIgh’the is listed for orders, by consent of parties the
VV,,.,aPP%a1 is heard rnerits.
‘ appellants are challenging the legaiity and correctness of
V and decree dated 30.10.2004. The respondent was the
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plaintiff in the suit. She filed the suit for specific performance of the
agreement. Alternatively she requested the Court to award
and interest on the earnest money deposit. The Trial Court has *
the suit in part and declined to grant the reiiefiof. if
Plowever, appeliants/defendants have been Iidirencted to”p,ay~..a i._
Rs.2,00,000/— as damages and also sale V
consideration received by there’along;vs}itiiii..:ii:terest atlli8%”p.a. from
19.07.1995 till payment. Being 1._he”ji%;i’dgn1ent and decree
Ofthe trial Com the i3if”95l*i??it’aPI5eaIi isiiiéd-iii ~.
3. The plaiiiitifflhasivnotichalleriged _theHjiludgmer1t and decree in not
granting the relief ‘ of lspeciific:_l”performance. Therefore the short
question that ‘arises consideration in this appeal is whether the
decree Trial Court for refund of Earnest Money
Deposit wiit}y;intere_st aiiidiawarding of damages is just and proper.
‘ ” Though” :the appeal memorandum the appellants have raised
dplgeverial ‘grounfds, at the time of arguments Sri G. Balakrishna Shastry,
leafnedv-ciounsel appearing for the appeliants contended that the trial
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Court has committed an error in awarding damages of Rs. 2,00.,_(__)(}0/-
without any reasons. He further contends that awarding of
18% pa. is on the higher side. Alternatively he contends:
Court couid not have granted damages as has i.ntere:st.Aa_nd_ theiratie’.
of interest awarded is on the higherside. in the cirgcu.mpstai1ces,'”heF,
requested the Court to allow the appealiiiiarid and
decree of the trial Court. A A A A it
5. Per contra Sr} appearing for
respondent contends of the case the
triai Court awarded Rs.2,00,000/~
as damages, have utilised the E.M.D.
arnount ofgks… and tailed to execute the sale deed even
though: was ready and willing to perform her part of
contractpiand tiietrial Court was justified in awarding interest at
‘7iei._g.comV;11ercial”rated 4’ Therefore he requested the Court to dismiss the
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6. Having heard the counsel for the parties the only point to be
considered by us in this appeal is whether the triai Court is _iL1S’t’1_f1’$i_Ci~~.in
awarding damages of Rs. 2,00,000/– and also awardingof *
18°/o p.a.
7. So far as awarding of damages is concierned issue’ no. i’6i”l1as~._V
been framed. Issue No. 6 has been considered’ and the
Trial Court at paragraph no. ‘and “The Tria;
Court without discussing how for damages of
Rs. 2,00,000/- has as an additional
amount to pas/rnent of Court fee by the
plaintiff. In other4’words_.i’ti–i.is– the plaintiff who has claimed
damages Rs.2,00;UOO_/Jhadhotpaid Court fee on the same. Be that
as-it rna3r,_giiwhein:ith_eCourt is awarding damages it is for the plaintiff to
prove’what:is”the.__dan1age that has been caused on account of non
i’7′,_perfonnancez the contract by the defendants and how she has
damages of Rs. 2,00,000/-. By looking into paragraph no. 25
i’.’j~an:d’.”26′;of the judgment, we are of the opinion that without any
discussion and evidence let in by the parties, the Trial Court has
erroneously awarded damages of Rs. 2,00,000/–, which according to
us is without any basis. In the circumstances we are of oipiinion
that the plaintiff is not entitled for damages of
awarded by the trial Court.
8. In regard to the rate of interest _at 181% pt.-a. isgeoncverned} we
have seen the agreement of sale. In theihagreenieiit1’_ofi~pa11e:§ both the
parties have agreed that if thei–.._dfe-fen-danVtsVi1’failed’to execute the sale
deed they have agreed to return.»et!:1e Rs. 1,00,000/-
and also damagies of withiiiinterest at 18% p.a. When
we have held that_ plaintiff-en]ti’t’led for damages of Rs.2,00,000/-
as awarded; by the Cotirt”b1elow, we are not inclined to interfere with
thoawarding, ofginterest at 18% p.a. since the defendants themselves
have iiiiagnaed 1’to1’_”_v»corn’pensate the plaintiff by paying a sum of
11’7′,Rs. t,00,0(11lG/g-t inaddition to E.M.D. and interest at 18% p.a.
..1n ‘thepresnlt, the appeal is allowed in part. Judgment and decree
8″rlieiieieeitigieiicouii is modified by holding that plaintiff is not entitled
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for damages of Rs. 2,00,000/~ as awarded. Awarding of interest at
18% p.a. from 19.07.1995 is confirmed subject to the £t}t§{i:ii”‘i§3.t:i{).n
that interest at E8% p.a. shalt be paid from the date”‘<'o:f
amounts paid by the plaintiff to the defeifidai1ts'~.as~:'adfita1;<;e"'Vsalé.
consideration til} the date of payment: _4
10. Parties to bear their costs.
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