Karnataka High Court
Sri H N Putte Gowda vs H R Devaraju on 10 March, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.F.A.No.1515/2012
BETWEEN:
1. SRI. H N PUTTE GOWDA,
S/O LATE T HANUMAIAH,
AGED ABOUT 52 YEARS,
2. SMT. GAYATHRI,
W/O H N PUTTE GOWDA,
AGED ABOUT 45 YEARS,
BOTH THE APPELLANTS ARE
RESIDING AT NO.10, 1ST G CROSS,
8TH MAIN ROAD, 3RD STAGE,
IV BLOCK, BASAVESWARANAGARA,
BANGALORE - 560 079.
...APPELLANTS
(BY SRI. P D SUARANA, ADVOCATE)
AND:
H R DEVARAJU,
S/O LATE H T C RAMAIAH,
H-135, LAKSHMINARAYANAPURA,
BANGALORE - 560 021.
...RESPONDENT
(BY SRI. H V RAJA RAM, ADVOCATE)
2
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 22.06.2012 PASSED IN
O.S.NO.8343/2004 ON THE FILE OF V ADDITIONAL CITY
CIVIL JUDGE, BANGALORE CITY, PARTLY DECREEING THE
SUIT FILED FOR SPECIFIC PERFORMANCE OF THE
CONTRACT AND PERMANENT INJUNCTION.
THIS RFA COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is directed against the judgment and decree passed by the learned V Additional City Civil and Sessions Judge, Bangalore in O.S.NO.8343/2004 on 22.06.2012 wherein, the suit of the plaintiff came to be partly decreed and the defendants are directed to pay Rs.5,50,000/- together with interest at 12% p.a. from the date of suit till the date of realization on the decreetal amount and costs and defendants shall deposit and pay the amount within 60 days. It is stated that out of Rs.5,50,000/-, Rs.1,00,000/- constitute the damages awarded against the defendants payable to the plaintiff. 3
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with their status and rankings before the trial court.
3. Before devolving on the other aspects, it is necessary to mention that learned counsel for plaintiff/respondent Sri. H.V. Rajaram submitted that he has preferred cross objection in this appeal. However, there is no mention of the pendency of the cross objection or the same has been kept below in the file. After the matter was adjourned, it was reported by the office that the cross objection got dismissed as withdrawn on 20.6.2014. Thus, the present adjudication is only with reference to regular first appeal.
4. The plaintiff filed a suit on 10.11.2004 seeking specific performance of the agreement dated 4 26.12.2002 wherein, he sought the relief of execution of registered sale deed; restraining the defendant No.1 and 2 from creating charge or alienating the schedule property and from interfering and meddling with the schedule property by way of permanent injunction.
5. The claim of the plaintiff is that the defendants entered into an agreement to sell the schedule property for a cash consideration of Rs.4,50,000/- on 26.12.2002 and received advance amount of Rs.2,50,000/-. It was agreed that the defendants will get tenants evicted from schedule property and thereafter the possession to be handed over to the plaintiff. On 26.9.2004 plaintiff approached and requested the defendants to execute the registered sale deed. Evasive reply was given by them. Plaintiff further claims that he was ever ready 5 and willing to perform his part of contract and also issued legal notice on 1.10.2004 and untenable reply was sent.
6. Defendants appeared and filed their written statement, wherein execution of the agreement dated 26.12.2002 and receipt of advance amount of Rs.2,50,000/- and agreeing to execute the registered sale deed within three months are admitted. They further admit that they received Rs.1,50,000/- on 22.1.2003 and Rs.50,000/- on 1.3.2003 totally, Rs.4,50,000/-.
7. The scope of the case is simplicitor suit for specific performance of the agreement dated 26.12.2002 was filed by the plaintiff wherein the subject matter is a house property and the sale consideration agreed was Rs.4,50,000/- including the 6 advance amount, totally sale consideration paid by the plaintiff to the defendants is Rs.4,50,000/-.
8. The suit came to be decreed in part, wherein the suit for specific performance of the agreement dated 26.12.2002 in the form of executing registered sale deed by the defendants by receiving balance sale consideration of Rs.1,00,000/- came to be dismissed.
9. However, the defendants were directed to return the advance amount and further payments upto Rs.4,50,000/- to the plaintiff together with interest at the rate of 12% p.a. from the date of suit till realisation. Further, amount of Rs.1,00,000/- also was awarded as damages. Thus, the total amount payable by the defendants to the plaintiff is Rs.5,50,000/- as mentioned in the operative portion of the judgment together with interest which means 7 the interest is also granted as the damages. Being aggrieved by the said judgment and decree, it is the defendants who have come up in appeal against the order of directing them to pay the advance amount together with interest and damages contending that they are ready to pay back the sale consideration of Rs.4,50,000/-. On the other hand, direction to pay the damages of Rs.1,00,000/- and interest at 12% p.a. works out to be excessive and punitive. Plaintiff filed the appeal for getting the specific performance of the agreement by way of cross objection in RFA CROB No.34/2012 challenging the same judgment and decree. However, it came to be dismissed as withdrawn on 20.6.2014 as stated above.
10. The learned trial Judge framed as many as 5 issues. In this connection, he was accommodated with the oral evidence of PW-1-H.R.Devaraj and 8 documentary evidence of Exs.P1 to P14 on behalf of plaintiff and oral evidence of DW-1-Gayathri and no documentary evidence of on behalf of the defendants.
11. On the basis of the said oral and documentary evidence, learned trial judge found that the plaintiff was not ready and willing to perform his part of contract. Further, held time is the essence of contract and there was a breach of contract by the plaintiff and decreed the suit in part as mentioned above.
12. Learned counsel Sri. P.D.Surana appearing for defendants would submit that basically the payment of balance of sale consideration of Rs.2,00,000/- was made in different period and however, the date of sale agreement is 26.12.2002 and the time mentioned for completion of their 9 respective parts of performance is three months. Learned counsel submits that the very sequence of events tell that the plaintiff was never ready and willing to perform his part of contract. Further, fixing of time for performance and period of limitation are to be read with reference to readiness and willingness of the plaintiff within the time stipulated in the agreement.
13. Learned counsel would further submit that in this case very issuance of notice seeking performance of contract is dated 1.10.2004 as per Ex.P4. Learned counsel would also submit that the plaintiff is enjoying actual possession of the schedule property, but has not paid any consideration regarding the same. Thus, plaintiff may not be allowed to enjoy earnings made at the cost of the defendants. Learned counsel would further submit that when the relief of specific performance was rejected to the plaintiff, he 10 was not entitled for damages. The trial Judge though came to the conclusion that there was no readiness and willingness, added to it breach of contract was not justified in granting damages and exorbitant rate of interest at 12% p.a. Learned counsel would also submit that the plaintiff being a party at the fault of breach of terms was not entitled for any benefit under the agreement. The plaintiff as stated in the plaint, is in possession of the schedule property. Thus, plaintiff entering the possession as on the date of suit subsequent to the agreement is not disputed. However, no premium or monthly payment or anything of its form is paid to the defendants by the plaintiff.
14. Learned counsel further relies on the forwarding of excuses one after another by the plaintiff which are discussed by the learned trial Judge 11 reflect on the very face that the plaintiff is a party at breach.
15. Learned counsel for plaintiff H.V. Rajaram would submit that execution of the agreement and receipt of amount are all admitted by the defendants and balance amount is Rs.1,00,000/- out of Rs.5,50,000/-. He was ever ready and willing to pay and get the sale deed registered. Learned counsel would further submit that nodoubt possession was handed over to the plaintiff as he has already paid substantial portion of consideration and also there is no contract to pay any consideration in connection with the possession of the property.
16. With all the materials on record, the relevance among the other questions would be on the following:
12
Delaying beyond three months to perform his part of contract disentitles the plainitff to seek specific performance in tandem.
Cumulative effect of getting the cross objection No.34/2012 dismissed as withdrawn on 20.6.2014.
Attendant circumstances in holding the plaintiff at breach of contract then awarding damages.
17. Learned counsel for appellants would submit that in the light of possession of the schedule property being delivered to the plaintiff there is no occasion for paying interest over the sale consideration of Rs.4,50,000/-. Further the plaintiff has not shown due regard to the agreement and the duties cast on him, as such he has not suffered any loss and in the process not entitled for damages of 13 Rs.1,00,000/- that is ordered to be paid by the present appellant/defendants.
18. The substance of the decree if it could be analysed is that they are to be reckoned with reference to relationship of plaintiff and defendants. Sale agreement was entered into on 26.12.2002 to sell the schedule property by the defendants to plaintiff.
19. The advance amount stated to have been paid by the plaintiff to the defendants is Rs.4,50,000/- Out of the total sale consideration of Rs.5,50,000/- (Rs.1,00,000/- due) as the plaintiff failed to establish readiness and willingness in view of the circumstances stated by the trial court, the specific performance of the contract in strict sense was not ordered. Defendants were directed to pay the amount of 14 Rs.5,50,000/- to the plaintiff together with interest at the rate of 12% p.a. from the date of suit till realization and date of the suit being 10.11.2004. Being aggrieved by the said Judgment and decree questioning the quantum of amount directed to be paid by the defendants they have come in appeal as the part sale consideration of Rs.4,50,000/- plus damages of Rs.1,00,000/- with interest at 12% p.a. was ordered to be paid to the plaintiff.
20. Similarly plaintiff also came in appeal against the Judgment and decree insofar as it relates to rejection of specific performance of contract dated 26.12.2002 and whereby they claimed for getting registered sale deed of the schedule property. However, the plaintiff got the RFA cross objection No.34/2012 dismissed on 20.06.2014. As such in the circumstances it is not that the decree was not 15 questioned by the plaintiff. On the other hand he questioned it and withdrew the same.
21. Insofar as the contention of the defendants is concerned learned counsel draws the attention of the court regarding various observations made by trial court wherein the plaintiff was not ready and willing to perform his part of contract such as lack of resource, date of agreement and due date for performance, period of limitation are as under:
"£ÁªÀÅ ªÉÄîÌAqÀ ªÁ¬ÄzÉAiÉƼÀUÉ C£ÀĸÀÆa ¸ÀéwÛ£° À ègÀĪÀ JgÀqÀÄ ªÀÄ£ÉU¼ À À °è ¸ÀºÀ ¨ÁrUÉzÁgÀgÀÄ ªÁ¸ÀªÁVgÀÄvÁÛgA É iÀiÁV ¸ÀzÀj ªÀÄ£ÉU¼ À £À ÀÄß ¨ÁrUÉzÁgÀjAzÀ SÁ° ªÀiÁr¹, ¸Àzj À ¸ÀéwÛ£° À ègÀĪÀ «zÀÄåZÀQÑ Û ¸ÀA¥ÀPð À zÀ bÁdð£ÀÄß vÀº® À égU É É ¥ÁªÀwªÀiÁr gÀ¹Ã¢ ¥Àqz É ÀÄPÉÆAqÀÄ, F ¸ÀéwÛ£À vÀº¯ À ïªÀgV É £À PÀAzÁAiÀÄ ¥ÁªÀwªÀiÁr gÀ¹Ã¢ ¥Àqz É ÀÄPÉÆAqÀÄ, F ¸ÀéwÛ£À vÀº¯ À ïªÀgÉV£À J£ïPÀA¨É£ æ ïì ¸Ànð¦üPÃÉ mï ¥ÀqÉzÀÄPÉÆAqÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PɬÄAzÀ C¸É¸ïªÉÄAmï jf¸ÀÖgï JPïìmÁæPïÖ ¥ÀqÉzÀÄPÉÆAqÀÄ ¤ªÀÄUÉ °TvÀ ªÀÄÆ®PÀ w½¹ F ¸ÀéwÛUÉ ¸ÀA§Azs¥ À ÀlÖ ºÁ° £ÀªÀÄä°®gÀĪÀ ºÁUÀÆ £ÁªÀÅ ªÉÄîÌAqÀAvÉ ¥ÀqA É iÀÄĪÀ J¯Áè C¸À®Ä zÁR¯ÁwUÀ¼£ À ÀÄß ¤ªÀÄUÉ ºÁdgÀÄ¥Àr¹, F ¸ÀéwÛ£À PÀª æ ÀĪÁV PÀA æ iÀÄ¥ÀvªÀæ £ À ÀÄß RjâzÁgÀgÁzÀ ¤ªÀÄä RZÀÄð ªÉZÀU Ñ ½À AzÀ ¤ªÀÄä ºÉ¸j À UÉ §gɹ, ¨ÁQ PÀA æ iÀÄzÀ ªÉƧ®UÀÄ 3,00,000-00 ªÀÄÆgÀÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼£ À ÀÄß £ÁªÀÅ ¤«ÄäAzÀ vÉUÉzÀÄPÉÆAqÀÄ, PÀA æ iÀÄ¥ÀvÀ檣 À ÀÄß ¤ªÀÄä ºÉ¸j À UÉ £ÉÆÃAzÀt 16 ªÀiÁr¹PÉÆlÄÖ PÀA æ iÀÄ¥ÀvÀæ £ÉÆÃAzÀt ªÉÃ¼É ¸Àzj À PÀæAiÀÄzÀ ¨ÁrUÉzÁgÀjAzÀ SÁ°AiÀiÁzÀ JgÀqÀĪÀÄ£ÉU¼ À ÀÄ ¸À»vÀªÁzÀ ¸ÀévÀÛ£ÀÄß ¤ªÀÄä ¸Áé¢Ãü £À¥r À ¸ÀÄvÉÛêÉ. E£ÀÄß G½PÉ ¸ÀévÀÄÛ EgÀĪÀÅzÀjAzÀ ¥ÀÆgÁ ¸ÀéwÛUÉ ¸ÀA§Azs¥ À ÀlÖ J¯Áè C¸À®Ä zÁR¯ÁwUÀ¼£ À ÀÄß £ÁªÉà ElÄÖPÉÆAqÀÄ ¤ªÀÄä zÁR¯ÉUÁV ¸ÀzÀj zÁR¯ÁwUÀ¼À bÁAiÀiÁ¥ÀæwUÀ¼£À ÀÄß ¤ªÀÄä ªÀ±PÀ ÉÌ PÉÆqÀ®Ä M¦àgÀÄvÉÛêÉ. MAzÀÄ ªÉÃ¼É £ÁªÀÅ ªÉÄîÌAqÀ ¥ÀPæ ÁgÀ £ÀqA É iÀÄzÉ vÀ¦àzÀ ¥ÀPÀëz° À è DUÉÎ F ªÉÄîÌAqÀ ªÀÄÄAUÀqÀzÀ ªÉƧ®UÀÄ 2,50,000-00 JgÀqÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼£ À ÀÄß ¤ªÀÄUÉ ªÁ¥À¸ÀÄì PÉÆqÀĪÀÅzÀ®èzÉ ¤ªÀÄä ®ÄPÁì¤UÁV E£ÀÄß 1,00,000-00 MAzÀÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼£ À ÀÄß ºÉaU Ñ É PÀnÖPÉÆlÄÖ F PÀgÁgÀ£ÀÄß gÀzÄÀ Ý¥r À ¸ÀÄvÉÛêÉ.
£ÁªÀÅ ªÉÄîÌAqÀ ªÁ¬ÄzÉAiÀÄ°è ªÉÄîÌAqÀAvÉ £ÀªÀÄÆ¢¹gÀĪÀ ¥ÀPæ ÁgÀ £Àqz É ÀÄPÉÆAqÀÄ ªÀÄvÀÄÛ zÁR¯ÁwUÀ¼£ À ÀÄß MzÀV¹ C£ÀĸÀÆa ¸ÀévÀÛ£ÀÄß £ÁªÀÅ ¤ªÀÄUÉ PÀA æ iÀÄ ªÀiÁrPÉÆqÀ®Ä vÀAiÀiÁjzÀÄÝ ¤ªÀÄUÉ w½¹zÀ £ÀAvÀgÀ ¤ÃªÀÅ ¸ÀºÀ ªÉÄîÌAqÀ ªÁ¬ÄzÉAiÉƼÀUÉ ¨ÁQ PÀA æ iÀÄzÀ ªÉƧ®UÀÄ ªÀÄÆgÀÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼£ À ÀÄß £ÀªÀÄUÉ ¥ÁªÀw C£ÀĸÀÆa ¸ÀévÀÛ£ÀÄß £À«ÄäAzÀ ¤ªÀÄä ºÉ¸j À UÉ PÀA æ iÀĺÉÆA¢ ¸ÀévÀÛ£ÀÄß £À«ÄäAzÀ ¤ªÀÄä ¸Àé¢Ãü £ÀºÉÆAzÀĪÀÅzÀÄ. EzÀPÉÌ ¤ÃªÀÅ vÀ¦àzÀ ¥ÀPÀëzÀ°è DUÉÎ F ªÉÄîÌAqÀ ªÀÄÄAUÀqÀzÀ ªÉƧ®UÀÄ 2,50,000-00 JgÀqÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼° À è £ÀªÀÄä ®ÄPÁì¤UÁV 1,00,000-00 MAzÀÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼£ À ÀÄß ªÀÄÄlÄÖUÉÆÃ®Ä ºÁQPÉÆAqÀÄ, ¨ÁQ ªÀÄÄAUÀqÀzÀ ªÉƧ®UÀÄ 1,50,000-00 MAzÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼£ À ÀÄß ªÀiÁvÀæ ¤ªÀÄUÉ ªÁ¥À¸ÀÄì PÉÆlÄÖ, F PÀgÁgÀ£ÀÄß gÀzÀÄÝ¥r À ¸ÀÄvÉÛêÉ."
22. The agreement provided the total sale consideration at Rs.5,50,000/-, advance paid on the date of agreement Rs.2,50,000/-. In case of breach, damages agreed is Rs.1,00,000/- by the defendant. 17
23. Insofar as Ex.P-1 is concerned it is not disputed. The very case of the plaintiff regarding the agreement is not questioned or denied by the defendants. As such the contentions of the said document need not be discussed at length. On the other hand, the inference regarding reading of Ex.P-2 and 3 assumes importance. Under Ex.P-2 it is the endorsement on Ex.P-1 written in Kannada. It is stated to be on 22.01.2003 and 01.02.2003. An amount of Rs.1,50,000/- was received by the defendants from the plaintiff towards sale price under Ex.P-3 which is next endorsement below Ex.P-2 on 01.03.2003 (01.02.2003) Rs.50,000/- came to be received by the defendants from the plaintiff. Thus, out of total consideration of Rs.5,50,000/-, Rs.2,50,000/- was received under the agreement and in the subsequent circumstances under Ex.P-2 and P-3 amount of Rs.1,50,000/-+Rs.50,000/- = 18 Rs.2,00,000/- was received. Thus, out of the total sale consideration of Rs.5,50,000/- the defendants received Rs.4,50,000/-. In all fairness the receipt of the amount is not disputed.
24. The next question that comes up is regarding balance. The following observation by the learned trial Judge at page Nos.25, 26, 27 of its Judgment is as under:
"In my opinion it was the fundamental duty of the plaintiff. Just because the plaintiff had three years to file the suit as per the Law of Limitation, the plaintiff should not have kept quiet for such a long time. When the defendants did not come forward to execute the sale deed when the plaintiff demanded them orally or in writing, it was the duty of the plaintiff to initiate legal action immediately. Law does not permit the plaintiff to keep quiet till three years and wait and watch the 19 defendants would do. It is not the duty of the plaintiff to go on requesting the defendants verbally to come and execute the sale deed. It is the duty of the plaintiff to initiate legal action and to file a suit to deposit the earnest money in court by establishing his readiness and willingness to perform his part of the contract, to get the sale deed in his favour. It is pertinent to note that in the present case on hand the defendants have not denied execution of the agreement and receipt of amount. What is contended is that the plaintiff was not in a position to pay the amount within a span of three months from the date of agreement and to pay the registration expenses. The plaintiff is running a Printing press and eking his livelihood. There was no substantial income to pay the balance sale consideration. He had entered into the agreement only for the purpose of business i.e., to re-sell the suit property for a higher price, as the property is a valuable 20 property and the market price is going up every day.
The plaintiff intelligently and purposely has not mentioned the important plaint averments in his Chief Examination regarding taking possession of the suit property from the defendants and he has sought for injunctive relief against the defendants not to alienate and not to interfere with his peaceful possession and enjoyment of the suit property. The plaintiff in his legal notice issued prior to filing of the suit has narrated regarding taking possession of the suit property within a span of three months from the date of agreement as per the terms and conditions of the agreement. But he has omitted that important pleading in the Chief Examination. The plaintiff purposely omitted to mention the said fact in the Chief Examination for the reasons that if he accepts taking possession of the suit property, that shows that he has not acted 21 as per the terms of the agreement and not paid balance sale consideration within the span of three months and did not get the sale deed executed in his favour. As per the terms and conditions of the agreement the defendants handed over vacant possession of the suit property to the plaintiff. It is pertinent to note that the defendants have categorically admitted their absolute ownership over the suit property."
25. The learned trial Judge thus has observed the time limit of three months from the date of sale agreement was fixed for registration of the sale deed and plaintiff accepts taking of possession of the property but never shows keenness. Court appears to have understood the plaintiff is at the obligation of payment of Rs.1,00,000/- towards balance sale price and also the expenditure for registration of stamp 22 duty on the sale deed. Learned trial Judge also embarked on the aspect that the plaintiff fell short of required resource to arrange the balance sale consideration for getting registered sale deed. As observed by the learned trial Judge plaintiff admitted that defendants told him that if he did not pay the amount within three months, the defendants will rescind sale agreement. The Plaintiff further admitted that after taking possession of the property he did not ask the defendants to execute the registered sale deed which implies that the plaintiff was more interested in enjoying the property, however not for getting registered sale deed by paying remaining sale consideration and also amount on stamp duty and registration.
26. Plaintiff also admitted that except the income from the printing press which he was running 23 there was no other income to him. The trial Judge also observed failure of the plaintiff to issue legal notice for enforcing the right of specific performance and it is also admitted that the defendants did not demand more sale consideration from him. Defendant No.2 in her cross examination states regarding acquisition of the property by defendants through Hanumaiah who is father of the first defendant. The plaintiff himself has admitted the ownership of the defendants which is not all that significance. Trial court has observed as under:
"The evidence given by DW-1, she being the lady it is quite natural. She is not hiding any fact or misrepresenting anything. She has categorically admitted that till today the defendants are ready to refund the earnest money as the plaintiff himself has not performed his part of the contract inspite of they selling a portion of 24 the property already. Now the property is worth more than 30 lakhs....."
27. Regarding the very concept of order of payment of damages under Section 21 of the Specific Relief Act, learned counsel for appellants Sri.P.D.Surana submits that there is no scope or occasion of awarding damages of Rs.1,00,000/- to the plaintiff.
28. In this connection Section 21 of the Specific Relief Act is necessary to be mentioned which reads as under:
"21. Power to award compensation in certain cases.--
(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.
(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract 25 between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.
(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:
Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation."
29. More particularly sub-section (2) of Section 21 reiterates that court decides specific performance 26 which could not be granted but there is a contract between plaintiff and defendants which has been broken by defendants and that the plaintiff is entitled for compensation for that breach and awards him such compensation accordingly.
30. The parties had agreed for damages for non performance of the contract. Damages in case the sale deed was not executed within the time. Thus it is liquidated damages which the plaintiff is made entitled to by the trial court.
31. Learned counsel for appellants submits in the circumstances the plaintiff had already occupied the possession of the schedule property may be under the consent of the defendants is not entitled for damages and trial court was not right in awarding damages. Further the interest i.e., ordered by the trial court is from the date of filing of the suit till 27 realization at the rate of 12% on Rs.5,50,000/-. i.e., Rs.4,50,000/- being part of the sale consideration and Rs.1,00,000/- being the damages. Thus, both earnest money plus quantified damages of Rs.1,00,000/- are to be refunded to the plaintiff together with interest. This was objected seriously by learned counsel for appellants.
32. Nodoubt mentioning of damages does not waive the right of specific performance or the very agreement purely optional for the defendants to either accept and reject specific performance or wash away their hands. In the circumstances damages too was ordered because of the legal injury and it is quantified.
33. Insofar as possession is concerned that may be first in pursuance of the contract. However delivery of possession by defendants to the plaintiff 28 happened because of the existence of contract otherwise parties are not related to each other. No doubt though the date of agreement is 26.12.2002 that was extended and date of filing of the suit is 10.11.2004. It is not that when a person is ready and files the suit within limitation provided it is not conclusive fact that he was invariably ready and willing to get executed sale deed. Insofar as immovable property is concerned time is not the essence of contract. However it can be essence of contract wherein it reminds the agreement, period of limitation, registration and reminding him by granting reasonable time to come and enforce the agreement failing which the rights get forfeited.
34. Under such circumstances time may be made the essence of contract. In the circumstances quantum of consideration paid by the plaintiff also has 29 to be looked into. It is nearly more than 80% of the sale consideration. The only contention regarding payment of interest and damages when the plaintiff was enjoying the possession of the schedule property or usufructs therein trial court erred in imposing damages and also ordering refund of sale consideration together with interest. In this connection there was no contract between the parties to the said effect. I find the defendants have also accorded possession of the schedule property on 25.04.2003 to the plaintiff. I find both the parties are proportionately have committed breach of the contract. However the amount of Rs.1,00,000/- appears to be exorbitant insofar as damages is concerned. I find considering the fact of possession of the property given to the plaintiff it is just and proper to restrict the amount of damages to Rs.50,000/-. Further insofar as return or refund of sale 30 consideration is concerned, considering the date of sale agreement the breach committed by plaintiff is considered in addition to filing of cross objection No.34/2012 by the plaintiff, however getting it dismissed on 20.06.2014, it is just and proper that considering the conduct of the plaintiff he is not entitled for specific performance in strict sense of the agreement. However the order regarding payment of interest at the rate of 12% p.a. from the date of filing of the suit till realization does not requires to be confirmed. I do not find any reasonable rationale in denying the interest at the rate of 12% p.a. Thus, the only aspect that requires to be considered and modified in the Judgment and decree of the trial court is reduction of amount of damages from Rs.1,00,000/- to Rs.50,000/- with proportionate interest. 31
35. Learned counsel Sri P D Surana for appellants would submit regarding possession, the plaintiff has to pay mense profits.
36. It is necessary to make a mention that mense profits is made by a person who is in unlawful possession of the schedule property. Possession of the plaintiff cannot be turned unlawful. Regard being had to the fact available materials on possession of the schedule property with the plaintiff it deserves to be delivered back to the defendants. Though the trial court rightly decreed for refund of advance amount and damages, it erred in quantifying the damages which appears to be on the higher side. Thus the same is liable to be modified as stated above.
37. Learned counsel for respondent/plaintiff with all fairness agreed that plaintiff is ready to deliver possession to the defendants.
32
38. Thus upon the payment of the amount stated above consisting of Rs.4,50,000/- (part sale consideration) + Rs.50,000/- together with interest @ 12% p.a. from the date of filing of the suit within three months by the defendants, the plaintiff shall deliver back the possession of the suit schedule property to the defendants.
In the result appeal is partly allowed. Judgment and decree dated 22.06.2012 passed in O.S.No.8343/2004 by the trial Judge is modified to the above extent.
Sd/-
JUDGE tsn*/SBN