IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.1482/2012(MON) BETWEEN:
1. SRI. L.R. BASAVALINGEGOWDA S/O. LATE PATEL L. RAMEGOWDA AGED ABOUT 62 YEARS.
2. SRI. L.B. GOPINATH S/O. SRI. L.R. BASAVALINGEGOWDA AGED ABOUT 32 YEARS.
3. SRI. L.B. JITHENDRA S/O. SRI. L.R. BASAVALINGEGOWDA ALL ARE R/AT LALANAKERE VILLAGE BINDIGANAVILE HOBLI NAGAMANGALA TALUK MANDYA DISTRICT. ... APPELLANTS (BY SRI. K.N. PUTTEGOWDA, ADV.) AND:
SRI. S. SUDHAKAR AGED ABOUT 53 YEARS S/O. LATE SRI. DEVENDRA RAO R/AT No.798, DAIRY CIRCLE YELHANKA NEW TOWN BENGALURU-560 064. ... RESPONDENT (SRI. B.N. JAYADEVA, ADV.) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.06.2012 PASSED IN O.S.NO.03/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, NAGAMANGALA, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellants challenging the judgment and decree dated 02.06.2012 passed in O.S.No.3/2010 on the file of the Senior Civil Judge and JMFC, Nagamangala decreeing the suit in part.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
Brief facts of the case are as follows:
3. The plaintiff has filed the suit against the defendants for recovery of a sum of Rs.10,80,000/- with future interest at 12% per annum from the date of the suit till the date of realization. The defendants being the owners in possession of the suit schedule properties, in all measuring 46 acres, 23 guntas situate at Thurubanahalli Village, Bindiganvile Hobli, Nagamangala Taluk approached the plaintiff to sell the suit schedule properties to meet their family necessities and family benefit. After deliberation and discussion, the plaintiff agreed to purchase the suit schedule properties from the defendants for a valuation consideration of Rs.48,90,375/- at the rate of Rs.1,05,000/- per acre. Accordingly, the defendant Nos.1 to 3 have executed the sale agreement dated 01.03.2007 in favour of the plaintiff agreeing to sell the suit schedule properties for valuable consideration of Rs.48,90,375/-. The defendants have received a sum of Rs.5,00,000/- as advance towards the sale consideration under the sale agreement and further agreed to receive the balance at the time of executing the registered sale deed in favour of the plaintiff.
4. The plaintiff further contended that he was always ready and willing to take the sale deed from the defendants as per the terms of the sale agreement and was ready with the balance sale consideration and demanded the defendants to perform their part of the agreement, but the defendants represented that the records required for execution of the regular sale deed are not ready and further requested the plaintiff to advance another sum of Rs.3,00,000/- out of the remaining sale consideration, to enable them to get the document ready for execution of the registered sale deed. Thus, on 11.03.2007, the defendants have received further sum of Rs.3,00,000/- from the plaintiff and have made shara to that effect on the sale agreement dated 01.03.2007. Thus, the defendants have received Rs.8,00,000/- lakhs towards the sale consideration. The defendants have taken time to execute the registered sale deed.
5. It is further contended by the plaintiff that even after payment of the above said amount, the defendants did not come forward to perform their part of the agreement and were dodging the matter, the plaintiff being ready and willing to obtain the registered sale deed approached the defendants on several occasions and demanded the defendants to perform their part of the contract, inspite of the same, the defendants for one or the other reasons, went on postponing the same. When the plaintiff pressurized the defendants to perform their part of the agreement, it was revealed by the defendants that they are not ready with the documents in respect of 6 acres and 6 guntas of land in Sy.No.74 of Thurubanahalli Village which was part and parcel of the sale agreement dated 01.03.2017 agreed to be sold. Thus, the defendants requested further time to obtain the documents to execute the registered sale deed. Due to the laches committed by the defendants, the sale deed could not be executed.
6. The plaintiff further contends that in spite of the above facts, the defendants instead of performing their part of the sale agreement, have issued a notice dated 11.06.2007 asking the plaintiff to pay the balance consideration and obtain the regular sale deed, even though they are not ready with the documents required for the execution of the regular sale deed. The said notice was issued only with an intention to show that the defendants were ready to perform their part of the agreement, even though in reality, they were not ready to execute the registered sale deed. As such, the plaintiff sent reply notice dated 20.06.2007 demanding the defendants to be ready with all the required title deeds and documents as per the covenants of the sale agreement dated 01.03.2007, in order to complete the sale transaction, but the defendants have not come forward with all the required documents as required in the reply notice dated 20.06.2007. The plaintiff has got issued another remainder notice on 20.12.2007 to the defendants demanding them to perform their part of the agreement, instead of performing their part of the agreement, the defendants have sent untenable reply dated 16.01.2008 that they have forfeited the advance amount of Rs.8,00,000/-, even though they were not entitled to do so, inspite of the fact that the plaintiff was ready and willing to perform his part of the contract. Even then, the defendants were not ready with the required title deeds in order to get the registered sale deeds executed. The plaintiff has contended that the defendants have absolutely no right to keep the advance amount of Rs.8,00,000/- paid by the plaintiff. The defendants are not entitled to enrich themselves by unjust means. Hence, the present suit is filed against the defendants.
7. In pursuance of the suit summons, the defendants have appeared through their counsel and filed written statement denying the entire averments made in the plaint contending that the defendants are the owners in possession and enjoyment of the suit schedule properties. The defendants have contended that the plaintiff entered into an agreement to purchase the suit schedule properties on 01.03.2007 and agreed to get the sale deed registered within three months from the date of agreement, for which the defendants had got issued legal notice on 11.06.2007. After receipt of the notice, the plaintiff has given untenable reply to the defendants. Even though the defendants were always ready and willing to perform their part of contract, the plaintiff has filed to do so.
8. It is further contended in the written statement that inspite of the defendants furnishing all the documents pertaining to the suit schedule properties, to enable the plaintiff to have the sale deed executed, the plaintiff has failed to do so. The defendants have contended that the plaintiff has paid an additional advance of Rs.3,00,000/-. The defendants reminded him that he should pay the balance sale consideration and get the sale deed executed and registered within the stipulated time. It is contended that they were always ready and willing to perform their part of the contract, but the plaintiff has failed to get executed the registered sale deed in his favour. Consequently, the plaintiff has lost his right to enforce the agreement and defendants are entitled to forfeit the advance amount received by them. Since, the defendants have forfeited the advance amount received by them, the agreement stands cancelled by operation of law. It is contended that hence, the plaintiff has lost his right to enforce the agreement and also to claim any money from the defendants.
9. Based on the pleadings of both the parties, the Court below has framed the following issues:
1. Whether the plaintiff prove that, the defendants had agreed to sell the suit schedule property for valuable consideration of Rs.48,90,375/- at the rate of Rs.1,05,000/- per acre and have received advance amount of Rs.5,00,000/- executing sale agreement dated 01-03-2007 and have further received Rs.3,00,000/- on 11-03-2007 from the plaintiff out of the balance sale consideration?
2. Whether the plaintiff prove that he was always ready and willing to perform his part of the contract of sale agreement dated 01-03-2007?
3. Whether the plaintiff proves that the defendants committed breach of sale agreement committing default and laches in not performing their part of the contract of sale agreement dated 01-03- 2007?
4. Whether the plaintiff proves that the defendant is liable to pay Rs.8,00,000/- with interest at 12% per annum by way of damages on the above said amount and are due in a sum of Rs.10,80,000/- as on the day of filing of the suit?
5. Whether the defendants prove that the plaintiff has failed to get the sale deed executed and register it within the stipulated time under the agreement, as such has lost his right to enforce the specific performance of the sale agreement or claim the advance amount?
6. Whether the plaintiff is entitled for the relief as sought for in the plaint?
7. What order or decree?
10. The plaintiff in order to substantiate his claim, got examined himself as P.W.1 and got marked the documents Exs.P1 to P15 and also examined one witness as P.W.2. The defendant No.1 examined himself as D.W.1 and got marked Exs.D1 to D11.
11. The Court below, after hearing the arguments of both the parties and also considering both oral and documentary evidence, decreed the suit against the defendants directing them to pay the amount of Rs.10,28,894/- with interest at 9% per annum. Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the defendants.
12. In the grounds of the appeal, the defendants would contend that the Court below has committed an error in coming to the conclusion that the plaintiff was always ready to discharge his part of the contract, but the defendants did not furnish the documents in time and the very approach of the Trial Court is erroneous. Though, the plaintiff in the cross-examination has admitted that he was having sufficient money to have the sale deed, no document is placed before the Court. It is also admitted in the cross-examination that, in order to purchase the agricultural property, one should have the pahani and the same is also not in his name. Hence, he could not get the sale deed executed within the time stipulated and these admissions were not considered by the Trial Court. The Court below also failed to take note of the condition mentioned in the sale agreement that, if the defendants fail to execute the sale deed, the plaintiff can deposit balance sale consideration before the Court and obtain the sale deed through the Court and the same is also not considered by the Trial Court. The Court below also failed to notice that the plaintiff has not sought for the relief of specific performance of the contract of agreement of sale and the suit is filed for recovery of advance money along with interest. If the plaintiff is interested in getting the sale deed registered, he would not have sought for the relief of recovery of advance money paid and the same has not been noticed by the Trial Court and erroneously decreed the suit with interest at 9% per annum and it requires interference of this Court.
13. Learned counsel appearing for the appellants in his argument also would contend that an advance amount of Rs.5,00,000/- was paid, time is the essence of the contract. The time fixed in terms of the agreement is three months and additional amount of Rs.3,00,000/- was paid on 11.03.2007. However, the plaintiff did not come forward to have the sale deed, inspite of the defendants being ready to execute the sale deed. When the plaintiff did not come forward to obtain the sale deed, the defendants themselves have issued the legal notice on 11.06.2007. The plaintiff has given untenable reply on 20.06.2007 and he did not come forward to have the sale deed. Thereafter, the plaintiff gave the notice on 20.12.2007 and the defendants have given their reply on 16.01.2008 itself. Even after exchange of notices also, the plaintiff did not come forward to have the sale deed and suit is filed almost after 1½ years, that too, for recovery of money and the Trial Court fails to take note of all these factors into consideration and erroneously directed the defendants to pay the money along with interest at 9%, inspite of there being a forfeiture clause in the agreement.
14. The learned counsel for the appellants in support of his argument relied upon the judgment reported in (2013) 1 SCC 345 in the case of Satish Batra –vs- Sudhir Rawal with reference to paragraph Nos.15 to 17 and would contend that upon non-performance of contract by buyer, seller forfeited entire amount of Rs.7,00,000/- paid as Earnest Money Deposit. The respondent-purchaser filed a suit for recovery of Rs.7,00,000/- but, the same was dismissed. However in appeal, High Court observed that appellant-seller was entitled to forfeit only nominal amount out of Rs.7,00,000/- but not entire amount of Rs.7,00,000/- and held that the same is unsustainable. The amount was paid by the respondent-purchaser as Earnest Money Deposit as a guarantee that contract would be performed as per the terms of contract, it was permissible to forfeit entire amount of Earnest Money Deposit and there were no other clauses militating against forfeiture clause. Hence, the appellant-seller was justified in forfeiting the entire amount. The counsel referring this judgment would contend that the facts of the case on hand is similar to the case referred (supra) and there is a clause in the agreement to forfeit the amount, in case the buyer does not come forward to have the sale deed within the time stipulated and hence the judgment is aptly applicable to the case on hand.
15. The learned counsel for the appellants also relied upon the judgment reported in 2019 (9) SCC 381 in the case of Ravi Setia –vs- Madan Lal and Others and referring this judgment, the counsel would contend that the plaintiff never come forward to have the sale deed by paying the balance sale consideration. The counsel referring this judgment would contend that the Hon’ble Apex Court in the judgment has held that depositing the balance consideration within the time fixed by the Court or failure to deposit within time and seeking extension of time, the Court has to appreciate and assess the readiness and willingness. On failure to deposit within the time fixed by the Court, it is the indicative of incapacity to perform his part of the obligation. The counsel referring this judgment would contend that there is a special recital available in the document, Ex.P1, the sale agreement that if the defendants fail to come forward to execute the sale deed, he can approach the Court and obtain the sale agreement through Court. In the case on hand, no such attempt is made by the plaintiff either by depositing the amount before the Court or tendering the same to the defendants and hence, the learned counsel would contend that this judgment is also aptly applicable to the case on hand. Therefore, the judgment and decree of the Trial Court is liable to the set aside.
16. Per contra, learned counsel appearing for the plaintiff in his argument vehemently contended that there is a recital in the agreement that the defendants have to furnish the documents to execute the sale deed and defendants have failed to furnish the documents to obtain the sale deed. The defendants, only in order to rescind the contract, issued the notice dated 11.06.2007 and suitable reply was given to the said legal notice and even after issuance of legal notice, denied the furnishing of the documents, though did not come forward to furnish the documents. The Court below, taking into consideration the evidence of both the parties, rightly appreciated both oral and documentary evidence and has not committed any error. In order to have the sale deed, the defendants have to furnish necessary documents and the same has not been furnished. Even though there was no any recital in the agreement to pay the additional amount, an additional amount of Rs.3,00,000/- was also paid on 11.03.2007 and the same is obtained, in order to obtain the documents from the concerned authority and even after acknowledging the additional amount of Rs.3,00,000/-, the defendants have not obtained the documents and furnished the same. Hence, the plaintiff is entitled for the amount which was advanced in favour of the defendants. The Court below while considering the case of the plaintiff and defendants appreciated both oral and documentary evidence and not committed any error and the same does not require interference of this Court.
17. The learned counsel for the respondent in support of his contention relied upon the judgment reported in ILR 2007 Kar 4440 in the case of K. Gajendran –vs- Chikkathimma and Others and brought to my notice paragraph No.10 of the judgment contending that readiness and willingness of the plaintiff to pay the balance of sale consideration to have the sale deed registered in his name depended more on the defendants producing the tippani copy and poding of the land by the survey department. In the absence of any documentary evidence to show that the defendants have secured the tippani copy from the department and poding of the scheduled land subsequent to the agreement of sale, it cannot be said that the plaintiff had failed to perform his part of obligation under the agreement of sale. The counsel also would contend that the documents are obtained in the month of July and period mentioned in the sale agreement dated 01.03.2007 is only three months and the same expires on 01.06.2007. It is also admitted that documents are obtained in the month of July, 2007 and hence, it is clear that the defendants have not furnished the documents within the stipulated time mentioned in the agreement. Hence, the plaintiff is entitled for the recovery of the amount from the defendants.
18. The learned counsel for the plaintiff also relied upon the judgment reported in (2011) 12 SCC 18 in the case of Saradamani Kandappan –vs- S. Rajalakshmi and Others and brought to my notice paragraph Nos.49 and 50 of the judgment wherein, the Hon’ble Apex Court has discussed with regard to Sections 51 to 53 of Contract Act and referring those provisions, the Hon’ble Apex Court has held that with reference to an agreement of sale which provides that the vendor shall make out to the satisfaction of the purchaser a good, marketable and subsisting title and provide all documents as required by the purchaser to satisfy him about the title of the vendor, that the vendor shall obtain a certificate of clearance from a specified authority for the sale, that the sale shall be completed within a period of four months of receipt of the clearance certificate and the purchaser shall pay the balance sale price at the time of the registration of the sale. It is evident that the vendor will have to first to make out a title by producing the documents required by the purchaser and also obtain the clearance certificate. Only thereafter the sale deed shall have to be executed and payment of the sale consideration will have to be made at the time of registration of the sale deed. The counsel referring this judgment would also contend that the principles discussed is aptly applicable to the case on hand.
19. The learned counsel for the respondent/plaintiff relied upon the judgment in the case of SILVEY AND OTHERS V. ARUN VARGHESE AND ANOTHER reported in (2008) 11 SCC 45 and brought to my notice paragraph No.14 of the judgment, wherein it is held that as regards the false plea of the defendants, the effect needs to be noted. It was pleaded that the defendant No.3 had gone to the house of plaintiff No.2 in Alleppey prior to receiving any letter from the plaintiffs and had spoken that they had told him that they were not keen on enforcing the application under Ex.A.1. But when examined as D.W.1, the said defendant No.3 admitted that he had never met the plaintiff as pleaded in the written statement and that he or any other defendant had never gone to Alleppey to meet plaintiff No.2 at his residence to speak about the performance of the contract.
20. The learned counsel for the respondent referring the principle laid down in the judgment would contend that the admissions available in the evidence of D.W.1 shows the conduct of the defendants and the same cannot be ignored while appreciating and weighing the evidence available on record.
21. The counsel referring these judgments would contend that the defendants themselves have committed default in not complying with the terms and conditions of the agreement and they have not furnished the documents to have the sale deed. Hence, the Court below taking into note the material available on record, rightly appreciated the same and directed the defendants to pay the amount. Hence, there are no grounds to interfere with the judgment and decree of the Trial Court. Hence, prayed this Court to dismiss the appeal.
22. Having heard the arguments of the learned counsel for the appellant/defendants and the learned counsel for the respondent/plaintiff and keeping in view the contentions urged before this Court, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in decreeing the suit directing the defendants to pay the amount with interest at 9% and it requires interference of this Court?
(ii) What order?
Point Nos.(i) and (ii):
23. Having considered the factual aspects of the case, there is no dispute that there was an agreement of sale between the plaintiff and the defendants. There is no dispute with regard to the fact that time is the essence of the contract and three months time is stipulated in the agreement. There is no dispute with regard to the consideration amount and also no dispute with regard to payment of advance amount of Rs.5 lakhs and additional amount of Rs.3 lakhs paid in favour of the defendants. The only dispute between the parties is that none of them have performed their duties as mentioned in the sale agreement – Ex.P.1. Before considering the issue involved between the parties, it is appropriate to consider both oral and documentary evidence available on record.
24. The plaintiff in order to substantiate his contentions examined himself as P.W.1 and another witness as P.W.2 and got marked the documents at Exs.P.1 to 15. The plaintiff in his evidence reiterated the averments of the plaint. He was subjected to cross- examination.
25. In the cross-examination, he admits the sale agreement. He entered into the sale agreement for the purpose of cultivating the land and also admits that there were eucalyptus trees in the said land. It was suggested that he got removed the eucalyptus trees from the said land to the extent of 30 lorry load worth of Rs.9 lakhs, the same was denied. However, he admits in the cross- examination that time stipulated was three months. He admits that he met defendant No.1 only once after the agreement was executed and he did not correspond with defendant No.1. But he claims that he spoke to him over phone. He claims that before the expiry of three months, he requested the defendants to execute the sale deed, but he has not given any notice to the defendants to come and execute the sale deed. It was suggested that within two months from the date of agreement of sale, all the documents were ready and the same was informed to him, the same was denied. It was suggested that through one Lokesh the defendants called upon him to come and have the sale deed, the same was denied. It was suggested that on 11.5.2007 itself, defendant No.1 got cleared the loan from PLD Bank and obtained the NOC, the same was denied. He admits that a legal notice was sent to him after the expiry of three months by the defendants and they got cancelled the sale agreement and he admits the said notice. He also admits that there is a recital in the sale agreement to forfeit the advance amount if sale deed is not obtained within three months. He further admits that in order to purchase the agricultural land, he should have the RTC and he is not having any such RTC in his State. He states that he was having Rs.40 lakhs to purchase the property. It was suggested that he was not having the money and the RTC, the same was denied. He admits that he did not seek the relief of specific performance in the suit. But he claims that he utilized the said amount for other business. A suggestion was made that he was not having money even on 11.6.2007 till the filing of the suit and question was put to him whether he has got any documents to show the same. But he volunteers that he was having money in the account of his wife and sisters. But he has not produced any documents. He further admits that defendant No.1 is not the owner in respect of Survey No.74. A suggestion was made that he was not having money and hence he did not come forward to have the sale deed, the same was denied. It was suggested that the defendants have forfeited the amount, the same was denied.
26. The plaintiff also examined one witness as P.W.2 and the said witness is only a signatory to the document Ex.P.1. There is no dispute with regard to the execution of the document of sale agreement. Hence, the evidence of P.W.2 is not necessary to discuss the same.
27. D.W.1 in his evidence reiterated the averments made in written statement and got marked the documents at Exs.D.1 to 11. He was subjected to cross-examination. In the cross-examination, he admits the receipt of additional amount of Rs.3 lakhs. He also admits the mutation register which is marked as Ex.P.6. He further admits that in Ex.P.6, the date is mentioned as 13.7.2007 and mutation was entered on the said date. He also admits that in terms of the agreement dated 1.3.2007, the time stipulated was 90 days to furnish all the documents. He also admits that in the notice, he did not mention all the documents are furnished within 90 days. It is suggested that the plaintiff did not visit his house and also he did not secure all the documents within 90 days and the same was denied. It is suggested that he was having loan in respect of Survey Nos.78, 79 and 80 and the same was not cleared and the same was denied. It is suggested that he has not furnished the documents within 90 days and hence he cannot forfeit the amount and the same was denied.
28. Having considered the oral evidence of P.W.1 and D.W.1 and also the principles laid down in the above judgments, this Court has to examine the document Ex.P.1. In Ex.P.1 there is a recital to complete the transaction within three months. In order to complete the transaction within three months, the defendants have to furnish the documents. There is a recital in the agreement that if the defendants fail to furnish the documents and fails to come forward to execute the sale deed, the plaintiff can deposit the amount before the Court and take the possession of the property. There is also a recital that if the plaintiff does not come forward to have the sale deed within the time stipulated, the advance amount can be forfeited.
29. Ex.D.1 is the notice given by the defendants on 11.6.2007. In the said notice, it is mentioned that the plaintiff did not come forward to have the sale deed. Hence, they have rescinded the contract and forfeited the amount. On perusal of the document Ex.P.6 – mutation register extract, it is clear that the property was transferred on 13.7.2007. In Ex.D.1, it is mentioned that the plaintiff was required to pay the balance amount within the time stipulated and have the sale deed. Further, it is also mentioned that inspite of the defendants furnishing all the documents relating to the schedule lands in order to enable the plaintiff to have the sale deed, the plaintiff did not come forward. The defendants were always ready to execute the sale deed. Specific averment was made that they have forfeited the amount.
30. Having considered Ex.P.6, it is clear that the mutation extract is dated 13.7.2007. Hence, it is clear that as on the date of the issuance of the legal notice dated 11.6.2007, the property was not standing in the name of the defendants. It is also important to note that in the reply notice given by the plaintiff, it is mentioned that the defendants have not furnished the documents. Inspite of the specific contention taken in the reply notice, the defendants have not furnished the documents and no documents is placed before the Court to show that the documents are produced to have the sale deed. No doubt an additional amount of Rs.3 lakhs was paid on 11.3.2007 and it is the contention of the defendants that while receiving the amount of Rs.3 lakhs from the plaintiff, they have furnished the documents. But there is no material placed before the Court to substantiate the same.
31. The main contention of the defendants is that the plaintiff was not having the money. Hence, he did not come forward to have the sale deed. In the cross- examination of P.W.1, he categorically admits that he has not produced any documents to show that he was having money. In terms of sale agreement, the sale consideration is about Rs.49 lakhs and he paid the amount of Rs.5 lakhs and additional amount of Rs.3 lakhs. But he has to pay the remaining amount of Rs.41 lakhs. He admits that in order to purchase the agricultural property, he should have the RTC. He admits that he was not having the RTC and he did not produce any pahani before the Court.
32. Having considered the oral and documentary evidence available on record, it is clear that the defendants have obtained the M.R. only in the month of July, 2007. When the defendants have issued the notice dated 11.6.2007, the plaintiff did not come forward to have the sale deed and pay the amount. Hence, it is clear that both have committed an error in performing and discharging their duties as enumerated in Ex.P.1. There is a recital in Ex.P.1 that if the defendants did not come forward to furnish the documents and execute the sale deed, the plaintiff can approach the Court by depositing the amount and obtain the sale deed through the Court. The same is also not done. Though the notice is issued on 11.6.2007, suit is filed in the year 2010. Hence, it shows that the plaintiff was also not having money to pay the amount and have the sale deed. Clause in Ex.P.1 shows that the defendants can forfeit the advance amount, which has been paid at the time of sale agreement dated 1.3.2007, but not the amount of Rs.3 lakhs which was paid subsequent to the agreement. There is no contract between the parties to forfeit the amount of Rs.3 lakhs, which was paid subsequent to the agreement. When the plaintiff and defendants have not acted upon in terms of the agreement Ex.P.1, the Court below ought to have taken note of the same. The suit is filed for recovery of money, which was paid earlier as advance and the Court below failed to take note of the admissions elicited from the mouth of P.W.1. First of all, he was not having money as on the date of issuance of notice by the defendants on 11.6.2007 and no documents are placed to show that he was having money. The recital is very clear that the sale transaction should be completed within three months. The plaintiff had not produced any documents before the Court that he was having money to the tune of Rs.41 lakhs, but in the cross-examination, he claims that he utilized that amount for other business and again he says that the amount was in the account of his wife and sisters and no documents is produced before the Court.
33. Having considered the factual aspects of the case and the peculiar circumstances of the case, when there is a recital in the sale agreement to deposit the amount in the Court and have the decree, the plaintiff did not do the same. The defendants also did not furnish the documents within the stipulated time of three months.
Though the defendants claim that they have furnished the documents, there is no material before the Court. Hence, I am of the opinion that the Court below has committed an error in directing the defendants to pay the entire amount of Rs.8 lakhs with interest. The amount which has been paid by the plaintiff subsequent to the agreement to the tune of Rs.3 lakhs, cannot be forfeited. Having considered the material on record, the defendants are liable to pay the amount of Rs.3 lakhs with interest and the Court below has committed an error in directing the defendants to pay the entire amount. The plaintiff also did not come forward to obtain the sale deed even after the mutation documents are transferred in the month of July, 2007. Only he gave the notice on 20.12.2007 and kept quite for a period of six months after the receipt of notice from the defendants. The suit is filed in the year 2010 after a long time of exchanging the notice in the year 2007 itself. Hence, the defendants are entitled for forfeiting the amount of Rs.5,00,000/- on the ground that the plaintiff did not comply with the terms and conditions. Hence, the judgment and decree of the Trial Court is liable to be modified.
34. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and decree of the Trial Court is modified directing the defendants to pay the amount of Rs.3 lakhs with interest at 9% per annum from the date of payment i.e., 11.3.2007 till the date of realization with proportionate cost.
(iii) The amount in deposit, if any, to be transmitted to the Trial Court to pay the same in favour of the plaintiff. If any excess amount, the same shall be refunded to the defendants.
ST/MD Sd/- JUDGE