Judgment : The appellants 1 and 7 herein, being the legal representatives of the deceased defendants 1 and 2 in O.S. No. 435 of 1986 on the file of the learned XI Additional City Civil Judge, Bangalore (hereinafter referred to as the `Trial Court for short) have challenged the legality and correctness of the judgment and decree dated 29-3-2001 passed in the said suit decreeing the suit of the respondent-plaintiff for specific performance of agreement of sale dated 8-10-1985 in respect of the suit property bearing No. 5/5 situate at 30th Cross, H.C. Byrasandra, Tank Bund Road, Tilaknagar, Bangalore, having two shops and a residential house. 2. Stated in brief, the case of the plaintiff (hereinafter parties are referred to as per their rank in the original suit before the `Trial Court). as averred in her plaint is as under: (i) On 9-11-1984, the 2nd defendant let out the suit property in favour of the plaintiff on a monthly rent of Rs. 310/-. At that time, the plaintiff paid to the 2nd defendant, a sum of Rs. 5,000/- towards security deposit. In the first week of October 1985 both the defendants approached the plaintiff with their proposal of selling the suit property. At that time the 1st defendant informed her that he was the owner of the suit property and he got the same from CITB on 13-10-1973 under the allotment Order No. PR-26/73-74 and thereafter he constructed the building thereon with his own funds. The plaintiff showed her willingness to purchase the said property on that date i.e., on 5-10-1985. (ii) On 8-10-1985 an agreement was entered into between the plaintiff and the 1st defendant whereunder the 1st defendant agreed to sell to the plaintiff the suit schedule property for a total consideration of Rs. 1,75,000/- and received from the plaintiff a sum of Rs. 5,000/- as advance of the said sale consideration amount. It was agreed that the plaintiff shall pay to the 1st defendant the balance consideration of Rs. 1,75,000/- at the time of registration of sale deed which was to be executed within three months from 8-10-1985 and all the registration charges were to be borne by the plaintiff. Thereafter on 25-8-1985 the defendant 1 again received from the plaintiff a sum of Rs. 5,000/- as additional advance and he made an endorsement to that effect on the said sale agreement. Thereafter on 25-8-1985 the defendant 1 again received from the plaintiff a sum of Rs. 5,000/- as additional advance and he made an endorsement to that effect on the said sale agreement. (iii) On 2/3-11-1985 the plaintiff informed the defendants that she was ready to pay the balance consideration amount of Rs. 1,65,000/-and asked the 1st defendant to execute the sale deed in her favour. But the 2nd defendant, who is the wife of the 1st defendant, at the instigation of her relatives, got issued the legal notice dated 7-11-1985, Ex. P. 2, to the plaintiff alleging that by taking undue advantage of her old age and illiteracy the plaintiff had secured her LTM on a stamp paper under the pretext of securing a loan of Rs. 50,000/-. Again on 23-11-1985 through the same Counsel, the defendant 2 got issued a rejoinder alleging that the defendants 1 and 2 are the owners of the schedule property. (iv) On 7-1-1986 the plaintiff got issued a telegram to the defendants requesting them to execute sale deed in her favour on 8-1-1986 by accepting the balance consideration amount of Rs. 1,65,000/-. In response to the said telegram, the Counsel for the defendants issued a telegram calling upon the plaintiff to forward the Xerox copy of the agreement. On 8-1-1986, the plaintiff went to the office of the Sub-Registrar at Jayanagar, Bangalore City, along with the balance consideration amount of Rs. 1,65,000/- and waited from 10.30 a.m. to 5.00 p.m. at the said office, for the defendants, but they did not turn up for executing the sale deed. (v) On 10-1-1986 once again the defendants got issued another notice to the plaintiff calling upon her to forward copy of sale agreement. However, the plaintiff did not send any reply to the said notice. The plaintiff has always been ready and willing to perform the essential terms of the suit which are to be performed by her. It was agreed on 8-10-1985 between the parties that till the execution of the sale deed by the defendants in favour of the plaintiff; the latter should pay to the former monthly rent in respect of the premises in occupation of the plaintiff. It was agreed on 8-10-1985 between the parties that till the execution of the sale deed by the defendants in favour of the plaintiff; the latter should pay to the former monthly rent in respect of the premises in occupation of the plaintiff. (vi) The cause of action of the suit arose on 8-10-1985 the date of agreement, and subsequently on all other dates of demand notice and also on the date when the defendants failed to execute the sale deed in favour of the plaintiff by receiving from her the balance sale amount, therefore, the plaintiff field her said suit seeking decree for specific performance of agreement of sale and, in the alternative, for repayment of the advance amount of Rs. 10,000/-with interest thereon at the rate of 10% from the date of agreement till repayment and also compensation for breach of contract and permanent injunction restraining the defendants from alienating the suit schedule property in favour of any other person/s. 3. Thedefendants 1 and 2 have contended in their written statement as under: (i) Both the defendants 1 and 2 while admitting the averments in the plaint as to the plaintiff entering into the lease agreement with the defendants on 9-11-1984, dispute the rate of rent which was not Rs. 310/- per month, but it was Rs. 350/-per month. Taking undue advantage of the old age illiteracy and physical weakness of the defendants, with intent to knock off the entire suit schedule property, plaintiff obtained their thumb impression on some papers under the pretext of securing loan of Rs. 50,000/- for the defendants from some Nationalised Bank and thereafter, while taking the thumb impression of the defendants the plaintiff played fraud and misrepresented the defendants. She also exercised coercion on the defendants in obtaining their thumb impression on a blank stamp paper. (ii) By obtaining the thumb impression on the blank stamp papers by misreading and also playing fraud on them, the plaintiff falsely prepared the said agreement of sale. The defendants were shocked to know the said agreement of sale only after they were furnished Xerox copy of the same. The defendants did not receive the said sum of Rs. 5,000/- on 8-10-1985 and another sum of Rs. The defendants were shocked to know the said agreement of sale only after they were furnished Xerox copy of the same. The defendants did not receive the said sum of Rs. 5,000/- on 8-10-1985 and another sum of Rs. 5,000/- on 28-10-1985 towards advance of the consideration amount in respect of the sale of the suit schedule property by them in favour of the plaintiff, as alleged by the plaintiff. The defendants have not at all executed any written agreement nor did they enter into any oral agreement with the plaintiff agreeing to sell the said property for a total consideration of Rs. 1,75,000/- as alleged by the plaintiff. (iii) During the pendency of the suit both the defendants died. Therefore, the present appellants came to be impleaded as their legal representatives. After they were impleaded as such, they filed additional written statement adopting the averments made in the written statement that was already filed by the deceased defendants. .4. Basedon the respective pleadings as stated above, the learned Additional City Civil Judge framed as many as eight issues and recorded his findings therein as shown against each issue. In support of their respective contentions the plaintiff got herself examined as P.W. 1 and got marked for her the documents at Exs. P. 1 to P. 5. The defendants got examined for them Sri Rathnam (3rd defendant) as D.W. 1 and got marked for them the documents at D. 1 to D. 9. On appreciation of the oral and documentary evidence adduced by the plaintiff and also the defendants, the Trial Court decreed the suit of the plaintiff directing the defendants to execute the registered sale deed in favour .of the plaintiff as per agreement of sale after receiving balance consideration amount of Rs. 1,65,000/- within one month from the date of decree, failing which, the plaintiff shall deposit balance consideration amount into the Court within two months thereafter and get the sale deed executed. It is this judgment and decree which is challenged in this appeal by the appellants who are the legal representatives of both the deceased defendants 1 and 2. 5. 1,65,000/- within one month from the date of decree, failing which, the plaintiff shall deposit balance consideration amount into the Court within two months thereafter and get the sale deed executed. It is this judgment and decree which is challenged in this appeal by the appellants who are the legal representatives of both the deceased defendants 1 and 2. 5. As could be seen from the memorandum of appeal, though the impugned judgment and decree is attacked by the appellants herein on several grounds, as could be seen from the memorandum of appeal Sri K.S. Nagaraja Rao, the learned Counsel for the appellants-defendants submitted during his arguments that he would confine his arguments only on ground No. 12 as stated in the memorandum of appeal as to the findings recorded by the Trial Court on issue 5 only. He further submitted that he does not dispute the findings recorded by the Trial Court in the impugned judgment on other issues, i.e., issues 1 to 4 and 6 to 8. 6. IssueNo. 5 reads as "Whether the plaintiff is entitled for specific performance of sale of the suit property?" and this issue is answered by the Trial Court in the `affirmative in favour of the plaintiff. Sri Nagaraja Rao, learned Counsel for the appellant-defendants contended that while executing the said agreement of sale in favour of the plaintiff, defendant 1 never misrepresented, never played any fraud on the plaintiff. He further submitted that as could be seen from the averments in the plaint itself and also from the evidence of P.W. 1-plaintiff, it was only after verifying the documents issued by the CITB in favour of defendant 1 while allotting the said site in his favour, the plaintiff believing that the defendant 1 had been the owner of the said site entered into the said agreement of sale. While contending so, he further urged that subsequent to the said agreement of sale, the CITB did not convey any title to the suit property in favour of the 1st defendant and even to this date the defendant-appellants being the legal representative of the 1st defendant have no title whatsoever to the said property and this being so, these defendant-appellants cannot be directed by the Court to execute the sale deed in favour of the plaintiff and thereby convey absolute ownership of the said property in favour of the plaintiff, which they themselves do not have. 7. As against the above contentions of the learned Counsel for the appellant-defendants, Sri C.V. Nagesh, the learned Counsel for the respondent-plaintiff, contended that it was never the case of the appellant-defendants before the Trial Court that the 1st defendant executed the said agreement of sale in favour of the plaintiff without having any title to the said property or having any defective title thereto, and therefore, by virtue of Section 43 of the Transfer of Property Act, 1882, the appellant-defendants are bound to convey what all right to and interest in the suit property they have. .8. As his reply submissions, Sri Nagaraja Rao, the learned Counsel for the appellant-defendants, urged that the provisions of Section 43 of the Transfer of Property Act, 1882 (herein after referred to as the `TP Act for short) would apply to a case `where a person fraudulently or erroneously .represents that he authorised to transfer certain immovable property and professes to transfer the said property for consideration but not to the present case wherein the 1st defendant did not make any representation to the plaintiff that he had authority to transfer the suit schedule property as its absolute owner, despite he having no such authority. He further urged that the 1st defendant, during his lifetime and, after his demise the present appellant-defendants, did not acquire title to the suit property from then CITB and the present BDA even as on the date of the impugned judgment and decree and the same position is there till to this date and therefore, the Trial Court should not have decreed the suit of the plaintiff. 9. 9. In view of the above rival contentions taken by the learned Counsel for both the sides, the only point that arise for my determination in this appeal is: "Whether the impugned judgment and decree directing the defendant (appellants herein) to execute and register in favour of the plaintiff (respondent herein), absolute sale deed in respect of suit property, despite these defendants not having any title to the suit property even as on the date of the decree, is sustainable?" My finding on this point is in the `Negative for the following: REASONS 10. It is averred at paragraph No. 3 of the plaint, that the defendants approached the plaintiff during October 1985 and informed her their willingness to sell the suit schedule property stating that the said property was allotted to the first defendant by then CITB on 30-10-1973 under the allotment Order No. PR 26/1973-74 and thereafter the defendants constructed the buildings on the said site from out of their earnings, and then the plaintiff agreed to purchase the same for a total consideration of Rs. 1,75,000/- and therefore, both of them entered into the said agreement of sale. The plaintiff-Smt. Susheela Bai who has got herself examined as P.W. 1 has stated in her evidence that the defendants told her that the suit property was allotted to them by BDA (then CITB) and then she asked the defendants to show her the documents and accordingly the documents were shown to her by the defendants pertaining to the allotment of the said property. She has further deposed that she showed the said documents to her brother Kannia Lal and then decided to purchase the suit property, as the papers were in order and, from the said documents, it was seen that the suit property was in the name of the first defendant as it was allotted in his favour under allotment Order No. PR 26/1973-74, dated 30-10-1973. 11. 11. Thus, from the above averments of the plaintiff in the plaint and also her (plaintiffs) above evidence, it is crystal clear that the defendants believed that the allotment order issued by then CITB (now BDA) in favour of the 1st defendant in respect of the said site itself was the title deed conferring upon the defendants ownership thereto and the plaintiff, after showing the same to the her brother Kannia Lal also believed the said allotment order as the title deed conferring absolute ownership in favour of 1st defendant and as such he was entitled to sell it to the plaintiff. It is further clear that both the parties to the agreement of sale proceeded with the said belief that by virtue of the said allotment order the 1st defendant could successfully convey in favour of the plaintiff title to the said property and therefore, she could purchase the same. Thus it is quite clear that the first defendant did not make any false representation to the plaintiff that he was the absolute owner of the said property having full powers to dispose of the same which in fact, he did not have. 12. Sri C.V. Nagesh, the learned Counsel for the respondent-plaintiff placing strong reliance on the decision of the Honble Apex Court in the case of Jumma Masjid Mercara vs. Kodimaniandra Deviah and Others AIR 1962 SC 847 :1962 Supp.(2) SCR 554, which is referred to and followed by the Apex Court in its, subsequent decision in Harden Singh vs. Gurmail Singh (dead) by L.Rs AIR 2007 SC 1058 : (2007)2 SCC 404 , submitted that by virtue of Section 43 of Transfer of Property Act, the appellant-defendants are bound to convey such interest in and right to the suit property as they are possessing, by virtue of, the said allotment order. The facts of the said case before the Honble Supreme Court were: "one Nallappa and another Shantappa sold suit properties therein to one Ganapathi under registered sale deeds making representation to the said vendee that the said properties had devolved on them as the next revertioners of last male owner in the family. The facts of the said case before the Honble Supreme Court were: "one Nallappa and another Shantappa sold suit properties therein to one Ganapathi under registered sale deeds making representation to the said vendee that the said properties had devolved on them as the next revertioners of last male owner in the family. When the said Ganapathi sued to recover possession of the said properties on the strength of the said sale deeds, one Smt. Gangamma contested the suit claiming that the said properties were the self-acquired properties of her husband Basappa and, as his heir, she was entitled to them. During the pendency of the second appeal, she died. On her death, the said vendors had acquired title to the said properties". On those facts the Full Bench of the High Court held (para 5) that the purchaser therein had, in taking the sale, acted on the representation as to the title contained therein and, as the sale by vendors was of properties in which they claimed a present interest and not of mere sight to succeed in future, Section 43 of the Transfer of Property Act applied and the sale became operative when the vendors acquired title to the properties on the death of Gangamma. It was on the said facts and finding of High Court, Honble Supreme Court observed at paragraphs 15 and 19 of its judgment in the said case as under: "Para 15: This reasoning is open to the criticism that it ignores the principle underlying Section 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of Section 43 were, "where a person erroneously represents", and now, as amended by Act 20 of 1929, they are "where a person fraudulently or erroneously represents", and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under Section 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in Section 43, however fraudulent the act of the transferor might have been. ….. Para 19: The Courts below were right in upholding the title of the respondents, and this appeal must be dismissed with costs of the third respondent, who alone appears". In the instant case the 1st defendant did not represent that he was absolute owner of the suit property having full right to dispose of the same. As such there was no fraudulent representation made by him to the plaintiff. Further, subsequent to the said agreement of sale either within the period of three months, which was fixed under the said agreement by both the parties for performance of the contract, or on any date subsequent thereto till the date of the impugned judgment and decree the 1st defendant did not get the title deed executed by CITB (now BDA) so as to attract the provisions of Section 43 of the Transfer of Property Act. Therefore, in my considered view, the above observations of Honble Supreme Court in the said case referred to supra i.e., in Jumma Masjid Mercaras case which has been referred to and followed in Suneeta Aggarwal vs. State of Haryana and Others AIR 2000 SC 1058 : (2000)2 SCC 615 cannot be made applicable to the facts of the present case. 13. Sri C.V. Nagesh, the learned Counsel for the respondent-plaintiff has also placed his reliance to the decision of this Court in the case of Smt. V. Aruna Vs. Smt. Gowramma and Others 2008(4) Kar. L.J. 149: ILR 2008 Kar. 923. In the said case the House Building Society had allotted one and the same site in favour of two persons and both the said two persons were claiming title to it. On those facts this Court observed as "Where the Court finds that the claim of one of the parties is genuine and alienation in favour of the other party by the House Building Society is to dupe that person, the Court can, in appropriate cases, by exercising its inherent power under Section 151 of the Civil Procedure Code, 1908, direct the House Building Society to make good the loss, notwithstanding the fact that no such prayer is made by the duped party in the suit. While observing so, this Court ordered that the 2nd defendant shall pay damages of Rs. 1 lakh to the first defendant". It is quite evident from these facts and the observations made by this Court thereon that the facts in the said case are quite different from those in the present case and as such the said observations have no application to the present case. 14. Sri C.V. Nagesh, the learned Counsel for the respondent-plaintiff placing reliance on another decision of the Honble Supreme Court in the case of Somnath Berman vs. Dr. S.P. Raju and Another AIR 1970 SC 846 : (1969)3 SCC 129 , strongly contended that though the appellants-defendants do not have title to the said property as on this date, nevertheless, they have possessory title and therefore, by virtue of Section 43 of TP Act, 1882, they are bound to convey the same in favour of the respondent-plaintiff. 15. S.P. Raju and Another AIR 1970 SC 846 : (1969)3 SCC 129 , strongly contended that though the appellants-defendants do not have title to the said property as on this date, nevertheless, they have possessory title and therefore, by virtue of Section 43 of TP Act, 1882, they are bound to convey the same in favour of the respondent-plaintiff. 15. Per contra, Sri Nagaraja Rao, the learned Counsel for the appellant-defendants submitted that the prayer of the respondent-plaintiff in the said suit based on Ex.P.1-agreement of sale is for transfer of absolute ownership in the property by the 1st defendant in favour of the plaintiff by executing and registering the sale deed, but not for transfer of any possessory title, which the defendants had as on the date of the said agreement of sale and which the appellants continue to have as on this date. He further submitted that the possessory title cannot be transferred by executing any deed of transfer as contended by the learned Counsel for the respondent-plaintiff. 16. In the said case before the Honble Supreme Court in Somnath Bermans case, the plaintiff, based on his possessory title, had sought for an injunction against the defendants therein restraining them from interfering with his possession over the property. On those facts the Honble Supreme Court observed at paragraph 9 of its judgment as under: "Para 9 A person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession…..” In the present case the defendants have not sought for any possessory title to the said property based on the allotment order nor has the plaintiff sought for any declaration that by virtue of the said allotment order the defendants have perfected their title and therefore, they be directed to get a declaration from the Court as to their title and then execute the sale deed in her favour. Therefore, the principle laid down by the Honble Supreme Court in the said case is of no help to the respondent-plaintiff herein. 17. While the dictation of the judgment was in progress Sri Lankesh, learned Counsel representing Sri C.V. Nagesh for the respondent-plaintiff drew my attention to another decision of this Court in the case of Sri Nipra Channebasaua Deshikendra Swamigalu Matadhipathigalu, vs. C.P. Kaveeramma and Others 2008(3) Kar. 17. While the dictation of the judgment was in progress Sri Lankesh, learned Counsel representing Sri C.V. Nagesh for the respondent-plaintiff drew my attention to another decision of this Court in the case of Sri Nipra Channebasaua Deshikendra Swamigalu Matadhipathigalu, vs. C.P. Kaveeramma and Others 2008(3) Kar. L.J. 560 (DB): ILR 2008 Kar. 805 (DB), head note in the said decision reads as under: "Transfer of Property Act, 1882, Section 43 — Transfer by unauthorised person who subsequently acquires interest in property transferred — Held, when a person with imperfect title transfers the property for consideration and subsequently the transferors title becomes perfect in law, the transferee is entitled to enforce the terms of the contract by equitable doctrine of feeding the grant by estoppel — Further held, the appellant was aware of the fact that the Mutt is not the absolute, owner of the property but technically in the eye of law was in permissive possession. The terms of in am did not prohibit alienation, the mutt being aware of its imperfect right over the land has created usufructuary mortgage for a period of 99 years. Therefore, it cannot be argued that Section 43 does not attract the facts of the case — On facts, held, when there is no express prohibition in the provision of the `Act 1977 regarding the revival of contractual rights of parties created prior to the passing of `Act 1977 and in view of the provisions of Section 43 of the T.P. Act, it is inequitable in the eye of the law to hold that after regrant in favour of in am holder, the contractual commitments between the inam holder and the alienee created prior to the passing of Act 1977 would not revive”. Suffice it to say that for the reasons stated supra, while considering the decisions of Honble Apex Court in Jumma Masjid Mercaras case and also Harden Singhs case, the above observations of this Court in the above said case cannot be applied to the facts of the present case. 18. Suffice it to say that for the reasons stated supra, while considering the decisions of Honble Apex Court in Jumma Masjid Mercaras case and also Harden Singhs case, the above observations of this Court in the above said case cannot be applied to the facts of the present case. 18. As observed by me supra, the defendant 1 and also the plaintiff, both proceeded with the transaction believing that, by virtue of the allotment order issued by the then CITB in favour of the first defendant in respect of the site, the 1st defendant had an authority to sell away the said site along with the building constructed thereon and the plaintiff could safely purchase the same. Thus it is clear that both the parties to the agreement of sale proceeded with the said belief which was, in fact and in law, incorrect. 19. Sri Nagaraja Rao, the learned Counsel for the appellant-defendants, placing his reliance on the decision of the Honble Apex Court in the case of Tarsem Singh vs. Sukhminder Singh AIR 1998 SC 1400 : (1998)3 SCC 471 , submitted that since both the parties to the suit were under a mistake as to the matter of fact essential to the agreement, the said agreement of sale entered into between the parties in respect of the suit property was itself void. The facts of the said case, as observed therein, were: "the defendant therein intended to sell the land in "kanals", the plaintiff intended to purchase it in terms of `bighas.”Bigha" and "kanal" are different units of measurements. In the northern part of the country, the land is measured in some States either in terms of "bighas" or in terms of "kanals". Both convey different impressions regarding area of the land. The dispute was not with regard to the unit of measurement only. Since these units relate to are of the land, it was really a dispute with regard to the area to the land which was the subject-matter of agreement of sale, or, to put it differently, how much area of the land was agreed to be sold was in dispute between the parties and it was with regard to the area of the land that the parties were suffering from a mutual mistake. The area of the land was as much essential to the agreement as the price which, incidentally, was to be calculated on the basis of the area. Thus, the mistake with which the parties were suffering related to a matter essential to the agreement". While observing so as to the facts, the Hon’ble Supreme Court held: "Section 20 provides that an agreement would be void if both the parties to the agreement were under a mistake as to the matter of fact essential to the agreement. The mistake has to be mutual and in order that the agreement be treated as void, both the parties must be shown to be suffering from mistake of fact”. (paras 21 and 22) 20. If the facts of the present case are examined in the light of the above observations of the Hon’ble Supreme Court, in the said case, it is clear that the defendant, under the belief that by virtue of the allotment order itself he had authority to sell away the said property, which he got allotted from the then CITB showed the said allotment order to the plaintiff and the latter, after consulting her brother by showing the same to him, believed that the 1st defendant had authority to sell away the said property in her favour and therefore, under that belief she agreed to purchase the same. Therefore, it is clear that both the plaintiff and the 1st defendant proceeded with the transaction under a mistake as to the fact that the 1st defendant had authority under the said allotment order to sell the property and therefore, they entered into the said agreement of sale. Thus, the said mistake of fact was mutual between both the parties besides being essential for the said agreement. This being so, in my considered view, by virtue of provisions of Section 20 of the Contract Act, 1872, the said agreement of sale became void and unenforceable in law. 21. In view of my foregoing discussions, I am of the considered opinion, that the learned Trial Court committed serious error and illegality in answering issue No. 5 in the `affirmative and in favour of the plaintiff and thereby decreeing the suit of the plaintiff with a direction to the defendants to execute and register the sale deed in favour of the plaintiff by accepting from the plaintiff balance consideration amount of Rs. 1,65,000/-, despite the defendants having no title to the said property, even as on the date of the said decree, validly conveyed in their favour by the BDA pursuant to the order of allotment issued by it in favour of the first defendant by then CITB. With the result, the present appeal deserves to be allowed and the impugned judgment and decree deserves to be set aside. 22. As to the non-performance of said agreement of sale by reason of fault on the part of either of the parties, there is a recital in the said agreement that in the event of the default committed by the seller (defendant), he would pay to the purchaser double the amount of advance received by him and in the event of default committed by the purchaser (plaintiff), the seller (defendant) would be entitled to forfeit the said advance amount. 23. It is not in dispute that pursuant to the said agreement, the plaintiff paid to the first defendant an advance of Rs. 10,000/-. Further, the plaintiff has prayed in his suit, as an alternative relief that, if the Court declines, for any reason, to grant the relief of specific performance of agreement of sale, the defendants be directed to return to him advance amount of Rs. 10,000/-along with interest at the rate of 18 per cent per annum from the date of agreement till the date of actual payment. Since it is held in this appeal that the impugned judgment and decree granting specific performance in favour of the plaintiff cannot be sustained in law and therefore, the same is to be set aside, the plaintiff would be entitled to the alternative relief as prayed for in his suit. However, since there is no agreement to the effect that whenever the defendants are to refund to the plaintiff the said amount of advance money, the same shall bear interest at any rate. Therefore, the interest as claimed by the plaintiff at rate of 18 per cent p.a. cannot be allowed on the said amount of advance. 4.24. However, since there is no agreement to the effect that whenever the defendants are to refund to the plaintiff the said amount of advance money, the same shall bear interest at any rate. Therefore, the interest as claimed by the plaintiff at rate of 18 per cent p.a. cannot be allowed on the said amount of advance. 4.24. Further, in view of the said recital in the said agreement that in the event of default committed by the defendant, he has to pay to the plaintiff double the amount of advance money that was paid to him by the plaintiff, I feel that ends of justice would be met with if the appellant-defendants herein are directed to refund to the plaintiff the said advance amount of Rs. 10,000/-with interest thereon at flat rate of 6 per cent per annum from the date of the said agreement till the date of actual payment. 25. In the result, the point that has arisen for my determination is answered in the `negative and in favour of the appellant-defendants. The present appeal is hereby allowed and the impugned judgment and decree is hereby set aside. However, the appellant-defendants shall refund to the respondent-plaintiff the advance amount of Rs. 10,000/-with interest thereon at flat rate of 6 per cent p.a. from the date of agreement till the date of actual payment. They shall pay the said amount with interest thereon within six months from today. There is no order as to costs. Note: After the judgment was dictated in the open Court on 1-10-2008 the case came to be listed on 3-10-2008 again for Being spoken to. After hearing the learned Counsel for both the sides, on the alternative prayer the operative portion of the judgment that was dictated on 1-10-2008 came to be modified and the same is incorporated above.