1 IN THE HIGH COURT or KARNATAKA AT BAEGALQRE DATED THIS THE 26" DAT or AUGUST, 2o19:Tr PRESENT b ]E THE HON'BLE M. JUsTIcE_g,L. MANEEEETEET T AND . « E . . . THE HON'BLE MR. $fiS?IdE E.M3N§gg#,_ E REGULAR FIRST AppEAr?E§_594}2aEQ5(Ep) BETWEEN: A. x 2 J.Roopa w/o Gopalakriéhna,AE 28 years, R[at,Eo.156;\4"yQf¢s$[f' II Main Road, Shgvip lya,,jr 'W Maha1akshmip§ram}_,"g,'._r E , Bangalore-9$:--g" W=VV ~_ _§ .. APPELLANT (By AdvocéEeqSrif$pSeshagiri Rao) AND: Sowbfiégya w/bufi,ChEnnagangaiah, '"*57 years, R/at N6 738, I 'F" Cross, .'3mvStage,,§W Block, 15" Main Road, '§a3ava$hwaran§gar, Bang;1¢ree79,* .. RESPONDENT
(By Afivdhate Sri.D.R.Sundaresha)
‘*.TrThis Regular First Appeal is filed under Order-
~4i Rule»; of CPC against the judgment and decree
~détéd 31.3.2010 passed in O.S.No.5766/2006 on the
V”=.gi1e of the xxv Addl. City Civil & Sessions Judge,
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Bangalore, decreeing the suit for recovery of money
and rejecting the suit for specific performance of
contract.
This .Appeal is coming’ on for’ orders_wthis1 day,
MANJUNATH J. delivered the following: ‘ “*-”
Legality and correctness! of “the. 5§d§e§ng;tand”
decree passed in o.s.No.5%§6{2oo6Vdeged 3lm3;2010-by
the XXV Addl. City Civil & Sessions Judge, hangalore.
2. Though the matter is listed for consideration of
an applicationff,filedi*@forEAxgrantu of temporary
injuncticn,–_ both the parties requested
the court’Ftov dispose} of the appeal on merits.
therefore. on the request of the counsel for both the
parties, this appeal is heard on merits.
fV*3. The appellant instituted the aforesaid suit to
»i}grant a decree for specific performance of agreement
{f”e£ sale dated 12.8.2605 and 12.1.2606 directing the
‘ “defendant to execute the sale deed in respect of
“=piaint A-schedule property failing which requests the
‘3”?
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lacs as advance and balance sale consideration was
agreed to be paid within six months from” said
date and the defendant also agreed_ftof pet ‘the
plaintiff in possession of thewprope’r*tv–;}::j~.Vat-.1:
of registration of the sale de’ed.:_-~-sf
4. It is the further sjthatiiat
the time of negotiationwsi’mo’fr_:’;the property it was
informed to the t_h.at_’.::.v”‘p_roperty of the
defendant is ft. and north—
south 30 was also physically
measured. iiii ioffxexecuting the agreement at
about defendant’s husband
Channagangaiahvi and A*oth’er members of the family were
present a_and~na sn:’t:””‘of Rs.5 lacs was paid as advance
“presence of family members and Gzirija
Shankar friend of defendant has also attested
docizment as an attesting witness. At the time of
if drafting the agreement measurement of the site was
as 30′ x 40′ instead of 30′ x 52’. When the
~ ,:.same was questioned, it was informed to the plaintiff
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by the defendant that what has been granted to the
defendant by the EDA is only 30′ x 40′ and there is
marginal land east-west 12′ and that she has enclcsed
the marginal land also and further submitted that sheK
has been negotiating with the EDA is get the marginalV”
land in her favour and that she would deceive the
plaintiff and that she would execute the sale deed
for 30′ x 52′ after getting théy%Qrginal land from
the sun. Therefcxe, p1sint1fs_s1gned the document on
12.3.2005. rmt is iuefisst stated that a sum of Rs.l
lac was §§iacg§ egnfigfififi; e sen of Rs.2.20 lacs was
paid on 23_9.é603e e sfim’cf Rs.3 lacs was paid on
19.10.2005 and e sen ct hs.2 lacs on 23.11.2005 was
paid by was of cash.: According to the plaintiff, in
ail ‘Rs 13.20 Elacs was received by the defendant
the back of the agreement dated
7; i2.3.2005;l She further states that in the first week
1ficfedanuary}2006 she met the defendant and her husband
i¢;and2:eqnested the defendant to execute the sale deed
las she was ready and willing to take the sale deed by
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paying balance sale consideration. Accordingly,
another agreement dated 12.1.2006 came into existence
as a continuation of the earlier agreement on
12.8.2005 in respect of the marginal land. ‘is as the
case of the plaintiff that plaintiff was ready and)
willing to perform his part; of 7the” contract;%”
defendant went on postponing to execute the sale deed
and later on further advances were also paid and she
narrates how further advances eereHPaidu According
to the plaintiff, in are a see cf 2s.19,70,000/– was
paid as stasaq in para5i0 ape; cf the plaint. Since
the defendant Wdifi inot_’execute the sale deed,
plaintiff gotissnéa a iegal notice on 22.4.2006 for
which _an nuntenehle ireply was sent on 15.5.2006,
therefore aplaintiff filed suit to enforce the
ag:scficnt”5ca;sc” 12.3.2005 and 12.1.2006 describing
Vkg the propertyl agreed to be sold under the first
.f:’agr¥eenxe_ntVV”‘as A-schedule property and describing the
“”,gpropert§ agreed to be sold under second agreement as
%”‘s.i a¥schedu1e. .
7
5. Defendant appeared before the court and filed
the written statement. According to the _4.de:E_rendant,
she is an illiterate lady and she is
the owner of the property and paccord.iri9″‘i:§§.,,,,;;1er
is no transaction between’-._ ‘=p1axin’titff’=::y and. —
defendant. One Girija Shanipar who
used to advance loan to whenever her
husband approached III Floor of
the building. ‘signatures were
obtained by promise that the
documents ” the defendant would be
returned:7__aft.erV’the:V”loan”-is discharged. Believing the
representation V of Shankar she has signed the.
4’documet’;é:t’v and that Girija Shankar hand”-in-glove with
the to make unlawful gain, mis-used the
documents.’ by the defendant and filed suit on
false ‘Iand: . frivolous grounds . She further contends
if the plaintiff has paid any amount to Naveen
Ki.1:n”a-rifis not binding on her as the said amount cannot
“la-e”V’treated as amount paid to the defendant. It is
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also the case of the defendant that plaintiff has no
financial capacity and was not ready and willing to
fulfil the terms of the agreement of sale and’-._su_it is
instituted at the instance of Girija3V_:WSha11.}{a-3:._”‘by
suppressing the real facts._mVbAccerdi–ng.i’»toV
plaintiff has not come with c3,ea:n..hands’..x”It:”ieis*::Vralso”~. -‘
contended by the defendant’.-‘Vpt.l__-iatl’
of any transaction nor property,
market value of the value of the
building and make unlawful
gain; was also filed on
the ground ybcvo«ns_ideration of the property is
more thanilthe in the plaint and the
plaintiff has suppressed the value of the property.
“A2fheref_ore_v,:’ eppdefendant requested the court to dismiss
the’ Sufi? 3 ..
Basedfon the above pleadings, following issues
weire vfraemed by the court below:
1 . Whether the plaintiff proves that defendant
” entereé into agreement for sale dated
12 . 8 . 2005 in respect of A and B Schedule
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property and paid Rs.5,00,000/- as earnest
money on the date of execution of agreement
for sale? V”
2. Whether plaintiff further prayésfg that
defendant executed another agreeflent’for sale
dated 12.1.2006? V ‘T’ r– ”
3. Whether plaintiff proyesppthat¥’plaintiff7 on_i
various dates paid the amounts as mentioned*”
in endorsement in agreement for,sale?
4. Whether plaintiff preyes that she was and is
always ready and willing to perform her part
of contract? V’ ‘ * ”
5. Whether’ defendant, prdyesphthat agreement for
sale was _executed aforl security of loan
advanced at the behest of Girija Shankar?
entries mags been made and agreement for sale
has -been ‘created .by plaintiff on blank
signatures given by defendant?
6. Whether” defendant: prbves that fraudulent
7. Whether” plaintiff is entitled for specific
_ performance of contract?
V”.3F What order or what relief?
A”.Addl}f1ssfieE Whether the relief as claimed by
‘the plaintiff by way of amendment is barred by
Limitation?
f’7ff ifi order to prove their respective contentions,
ff”,r’f,plaintiff got herself examined as PW-1, Girija
V'”a_§hankar was examined as ?W-2, one Gopalakrishna was
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examined as PW-3 who is none other than the husband
of the plaintiff, and one Kranthi Kumar was
examined as PW–4 and also relied upon fiwsffifl tol5.
On behalf of the de£endant,:””herfa’hushandfi
Channagangaiah was examined as :;a:~z~l-1?,_¢ni ¢’§;:ound’.. –:
that the defendant was unV_–‘w.ellV”‘and V fventier
into the witness box. s appreciating
the entire evidence let_in by the parties held that
issues 1 to 4 in: 5 to ‘7 and
Addl. Issue uuitimately suit came
to be thiepppppdelfendant to refund an
amount of__ interest at 6% from the
date of of realisation. Court
exercisfingae. dis-::.retio’:nary power refused to grant
lspeciafic fperfermance on the ground that it would
causeV”f.–._£ioVr’e”_~v.,,__hardship to the defendant than the
:9i.aint’i”f£.-lifv”relief is not granted to the Plaintiff.
.«_ag§’rieved by the judgment of non-wgrant of
V<iecree"'Afor specific performance, present appeal is
T i'l"e'd.
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8. We have heard. Mr.T.Seshagiri Rao, counsel for
the appellant and Mm.D.R.Sundaresh, counsel for the
respondent.
9. The main contention of the appellantVhefore.us,
is that the trial court has comitted an error in not_w
granting relief of specific performance even though
the plaintiff has proved pi aacarding to
him, when the agreemeat executed ty the detendant has
been proved and when the plaint$f£efia§-further proved
that she was ready and willing to perform her part of
the contract;«e;iai court had no jurisdiction to deny
the relief lof ‘specific iperformance and the trial
court has committed serious error in cflxecting the
:defendant to refund the advance. He further contends
that even if the court had come to the conclusion
v”<that Agreater, hardship would be caused to the
rafdefendant_if she is directed to execute the sale deed
econittheiflground. that the consideration shown in 'the
iT3fireement Rs.48,20,00D/- is not the actual market
:3 'value, the court should have considered the
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transaction as a distress sale and if a party in her
urgency has agreed to sell the property forV_d~.1}:re_ need
for a lesser amount, same cannot be
reject the relief of specific perforsiafnycei ~on_r
ground that the sale considerationsA.}i.s2_nolt'- r:aar'ket"~.A I
value of the property. _. _ V V
10. Per contra, counse’l,g””l.for i:h_e’.= respondent
Mr.Sundaresh contendsthat:i'”trial\'”-.court”‘is justified
in refusing to grantlll of specific
performance sint’3s’_’–val_ue.-Z: of=,At’he___proVperty as on the
date of notlvlllllless than a crore of
rupees. property is situated in
Basavesh_w_raran”ag_ar_.V’– it has a three storied
. 2,)-s,§7>&;.fi!intiif’f””‘had no money to Purchase the
property. not placed any material to show that
‘ V….’»she and willing to perform her part of the
~l.l’_:’:..-:.o’r.tract; _ taking undue advantage of the situation
has placed, filed a false and frivolous
caisefi therefore trial court is justified in refusing
grant discretionary relief of specific
6)/.
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performance. He further contends that even though
plaintiff has not proved issue No.4 by._p-gioducing
cogent evidence, still the trial court.
held issue No.4 in favour ofmthe
further contends that even though_—npci .:
objections are filed by<l'l–'…he V"£3'._e'f«.?.v1'1d.a';1'i:1'»{-,%:'_V_V.Vstglilliiilby
making use of the provisions"-V'.V:o.§__Orderjfill::}Rt:1e–22 of
CPC he can urge that finding on
issue No.4 as bad be reversed by
this court. _ plaintiff hand
in glove filed the suit to
suite heir' <:onve11i.enc'e.e.T:'Acciording to him, plaintiff
has a6.mitted_ in ~cr'_oss–examination that she does
not kn-afwiv the value of the building or site on the
date «ofu agreement and the defendant has placed
mate~ria.1 what was the value of the property
as on uthe"'–VAda't.e of the agreement. He further contends
'ithough nw–1 has stated that the value of the
as on the date of agreement of sale was not
.348 lacs and it was more than Rs.85 lacs, for the
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E4
reasons best known to the plaintiff’s counsel he does
not touch upon the market value of the propert§ while
cross-«examining DW-1. Therefore he
market value of the property was contended ‘gbyj
defendant has not been denied is, -:
placed before the court *that* the g§alfi§ got the
property as on the; date: dg.padtesednt} was only
Rs.48,20,000/-. Since:”evi.de:nce”–.VoA.t:’i)W–l in regard to
the market value. of” the _t;d§d§ty; has not been
challenged. hyflnthep plaintifiri or “her counsel, trial
court 5.s___ that the defendant
would putAllVtvef_hiore..l_Th–ardship in directing her to
sell the property north more than Rs.8S lacs for a
.paultrg! sum of,pRs.e8 lacs. Mr.Sundaresh further
subAm:i«ts that::*#;he contention of the counsel for the
appellant*that the sale is a distress sale would only
v5_ show that amount of Rs.48,20,090/M is not the actual
.xVfiarketl value. He further contends that when the
hkp appellant now contends that the transaction is a
“distress sale, appellant has not laid any foundation
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either by pleading or letting evidence that the sale
consideration agreed was on account of distress sale.
The said contention could have been considered by the
court provided the appellant had paidf”theH entire
consideration of Rs.48,20,000/~ forthwithQ*®When”the,
agreement is of” the year 2005 :and iii rthesrsuit} iepfi
filed in the year 2006 and efitgee consideration is
not paid, purpose of distress_ sale twafiia also be
taken away and that the tfie§g§,af.ais£§¢ss sale has
been invented by the appellae%–§#”erder to over–come
of the judgment end.deQ%§el§¥’the;£rial court. In
the circemstances; he requests the court to dismiss
the appeal{Vfl”
gilp. Heuing'”heardf the counsel for the parties, the
only point that arises for our consideration in this
‘V=appeal_is;.lg’
. “Whether the trial court is justified in not
»x’&irecting the defendant to execute the sale deed
xinT’ respect of plaint A and B schedule
Rsproperties?”
16
12. Having heard the counsel for the parties, it is
not in dispute that the defendant is the owner of the
plaint schedule property. As on the wdate of
agreement dated 12 . 8 . 2005 Bwschedule : not
owned by the defendant and
marginal land has been allottedvtioher”–hy.’the’V.i_:Bl5i=L:.and”‘ J
she has spent enormous iiirfiarginal
land measuring 12′ x,—-§0′ her”vca.s}e that she
did not enter into ah the plaintiff
and that she cioouments in favour
of one Girijaiziaoney lender and who
is in vei;-Ay._ the plaintiff. She has
also denied’-gtlae xvaluegfiofééithe property on the date of
agreement “of In this back-ground, what is
‘required considered by this court is whether
the ~. *:$r’a1ue of the suit property was
Rsy.48,’.2£),Cl:(&).O’/;- only. Whether the transaction between
“plaintiff and defendant can be treated as a
d;i.,st–ress sale and whether the property as on the date
agreement was worth more than Rs.85 lacs and
We
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whether the trial court is justified in not directing
the defendant to execute the sale deed in respect of
property for a sum of Rs.48,20,990/- as against its
market value of Rs.85 lacs.
13. Though the defendant Vhas tdéniedr the :agreement
entered into between the partiesg’ejidence on record
discloses that the fiéisementflhaé been entered into
between the parties, since defenfiefifi has admitted her
signature on gone ofi the dopafifintsr When once the
defendant has adnittedfnéx signature in some places
on Ex.P-$ §”3; this court has come to the conclusion
that an agreemene beg been entered into between the
plaintiff and the defendant. Ex.P–1 is the agreement
;inarespect,of the property measuring east–west 40 ftm
and ‘-30 ft.. In the schedule mentioned in
i 7 »Ex.Pe1g it_ is }clearly mentioned that there exists
~f house property of 30 sq. RC C roof building.
‘[‘9nepe;£y is admittedly situated in Basaveshwaranagar.
“*I£ a site measuring 39′ x 40’ in Basaveshwaranagar,
h”»hest of Chord Road which is known to be one of the
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best locality with 30 sq. RCC roof building, is it
possible for any party to sell for a paultry sum of
Rs.48,20,000/-. This court has to examine the actual
value of the property or the nature of evidence let
in by the parties to know the aezue of the prépertyg ;
Another agreement of sale. ExfB§2,>iit.:i§yMdetedA
12.1.2006. It is in Vrespect’ of efig§,~fiyopérty
measuring east-west Vfiap ft.”=enawggor£fi;$o£th 30 ft_
with 30 sq. RCC roof building. (Consideration to be
payable for the ercess land is also not mentioned in
Ex.P–2. Theieferei whet is to be considered while
considering the market value is the actual extent of
the site and building thereon. The property measuring
east-west’ 30 aft. and north–south 52 ft., total
measurement of the property would be 1560 sft. along
with §0«sg},RCC roof building. PW-1 has stated as
“-.Vg property at that time.”
hereunderi “l
“‘V’I< fies not aware of the market value of the
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By looking into the entire evidence of ?W-1 it is
clear that she is only a name–lender to the agreement
and she does not know the actual transaction between
the defendant and herself. Ex.Pm10 is the photograph
of the building which has been taken from the reari
side of the building which the”.
construction put up by the defendant g Building is of
a quality construction,$”tdrrlng the* “bear 2005
construction value in ‘3s5g$i§e§5 is rrespect of RCC
roof of good guality could not hate been less than
Rs.80,000/- is to be
calculated ._perV’7Tsqg.7ggas_T”‘vc_o*st of construction of the
building ina?0O5} fsrffihé building of 30 sq. it comes
to Rs,Z#ulacsfW_if the value of the building itself
comes to Rs,24 lacs, then this court has to examine
what_Would re the value of the vacant site in respect
V?” of ISEO fsfti. Admittedly the suit property is
jisituated in West of Chord Road, Bangalore which is
“FL fiery near to the Bangalore City Railway Station and
Bangalore Central Bus Stand and it is known to be
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upper middle class locality and there is a great
demand for site and building. The market value of
the site in that area in the year 1985 aguxa not be
less than p.s.5ooo/- to Rs.6oo0_/rrr.Per_~’é’q”.~~’f’_££”:”
same is considered ‘the value; o£”fthe_”site;\_itse1fF’
would be more than Rs.70″lacsthwthe¥éforeW if Dfirl
has deposed that as on the date of acreenent, value
of the property was note than Rstfifi lacs, it cannot
be said that there “is ;any,iexa§§eration in his
evidence. According to dwgln value of the property as
on the date of aaegeggfig figs Bs.h5 lacs which portion
of the evidenea ;g culled out by us as hereunder:
“We will he put to hardship if property is lost
or sold or ordered to be sold. I submit on oath
__ that ithe marketv value of the property’ in the
“W.year:y20Q5 is “more “”” than Rs.85 lacs and no
e_. qpestion_* of selling the property to the
‘§;;laint..if»f’Aet.f’or sum of p.s.4s,2o,ooo/–. Mr.G:i.rija
~shank’ar_”_v».__u’::§ed to advance loan has created this
document and it is he who created the documents
Exs.P&1″& 2 to make unlawful gain.”
ujs¢g_£a:y as this piece of evidence is concerned,
‘h”7_ oh; plaintiff’s counsel has not at all cross–examined
.h’,_ EH41} When there is no cross–examination in regard
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to the market value of the property by the plaintiff
or by her counsel, this court has to accept ‘that the
market value of the property as on of
agreement was not less than Rs.85 _1.ac:s.,xW:therefo,re.,__
plaintiff’ s counsel did not touch. or’.._
evidence and did not chal1,_enge”._!t’he 1 the
contrary, plaintiff’s counsiel_V”v’has to m§–1
as hereunder: i in if
“It is false to property is
sold to a_third;_party,__”«Jj–.,_wou’.1d get more money
and if the paropeirtgf “Vise .sold——~for Rs . 48, 20, 000/-
to the , «._I…__wou.’!.d’*«,be_ put to loss.”
From ciliear that if the property
was agreed to a third party, property
would fetch a*xI}ore’,’– money and if it is sold for
t§”‘t*n¢_~ plaintiff, defendant would be
«.:”_Ihis suggestion is made to DW-l on
court is also required to be
~ifjv»~c.on~sidered__A’3~ that from 2007 onwards value of the
p–r”ope.rty in Bangalore has been reduced on account of
recesfsion in real estate. If the suggestion is made
the plaintiff’s counsel on 19.8.2009 that if the
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22.
same is soid it would fetch more value than
Rs . 48 , 20 , 000/– , naturally when the property was
agreed to be sold in favour of the {when
there was a boom in the real estate_”=Jou*siness” _m__
Bangalore, value of the property a4n’y.: of.._
imagination cannot be
considering the hardship to the
defendant and that in the
agreement is not__the as rightly
directed o.n’l3}B the advance sale
considerationpgg “‘1’xerV’fV By refusing to grant
relief of speciifuizs _p pegrfornman-ce .
14. Though vléarvned counsel for the plaintiff
;¢§:onten’c1s’ that. it wasiva distress sale, no material is
pliaced plaintiff in her evidence that
V”-~ie’defendant to sell the property for a sum of
*«.i«i..j’jv.i%sV.’~48,20;0VQ1~0/~» as she was in distress. This court
x_e45{.a:mined in the back-drop of the written
statement of the defendant that defendant had taken
V”V3,¢’an from Girija Shankar, Girija Shankar had obtained
6/
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document from the defendant and plaintiff has made
use of the same at the instance of Girij_aa.y_:S.ha._nkar.
Though the appellant’s counsel contends»thatff:s.ale.’is
a distress sale, as rightJ,y__ cute if
Mr.Sundaresh there is no proper p’1e’ading Ié~;iee¢nc§”‘~. ”
to show that the defendan:§,___qpas”A’v-aggreedif the
property for a sum of fine was in
distress. By considering. advanced by
the counsel fa’!-y”‘ the defendant
agreed to sale would
only discVJ_._ose”‘,t’1xai;:_ of the property
was not – but it was much more.
Therefore, *yconsidering=’ the arguments of the
a_ppel1a.nt’V’s counsel, ‘this court has to confirm the
.VpAand,T”decree of the trial court. In the
circum’st’ance%’5_,V’;;Vwe do not see any infirmity in the
judgment andfsdecree o the trial court. However, we
” the trial court did not consider the
V4″a.__adva’n:cbe”A amount paid by the plaintiff in a sum of
R–sf.”i’9,7G,00O/-. When the defendant had made use of
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Rs.19,70,0€}0/– of the plaintiff, it would be unfair
for the court to direct interest on the sum.
Considering the actual market value of gti1et’VV’.;Ioiro.Fnerty
and that the plaintiff had paid faaeQ’sun'”,of_
Rs.19,70,000/~, we are of the fqp:nienfu;het_?the_i
judgment and decree of ttheu coagir-ti. ‘ii-;oij”1’,>e
modified by holding that in eeei;i¢n he the refund of
Rs.19,’70,000/- with the date
of suit till the date defendant is
also to be damages of Rs.S
lacs towards. C__t»he incurred by the
plaintiff; andallas”=-xicoffipen-sat.-‘ion for having used the
said amount “Joy” the ‘defendant .
result; “”” “this appeal is allowed in part.
Judgments. decree of the trial court in refusing to
i’-~aV’grant’ specific performance is affirmed. In
~ifjvmod-if:i.cat.io~n of the decree of the trial court to
sum of Rs.19,20,000/- with interest at 6%
from the date of suit till the date of
d*realization, we hold that the plaintiff is entitled
«E»/A
25
for a sum of Rs.19,?D,000/– with interest at 6% p.a.
from the date of suit till the date of realisation.
In addition appellantwplaintiff is entitled for a sum
of Rs.5 lacs as liquidated damages. Wdwe dirent the
defendant to pay the aforesaid anount within a period 5
of three months. If the amount is finot’ paid uor
deposited within a period of three months firom todey,
aforesaid, amount shails caf£y{ interest eat 18% p.a.
from today.
*~R[3oo31o