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2011 DIGILAW 2809 (MAD)

Ist Petitioner v. Ist Respondent

2011-06-16

R.MALA

body2011
JUDGMENT :- 1. The appellant herein has come forward with these petitions for modifying the judgment dated 22.12.2010, made in A.S.Nos.412 and 413 of 2007. 2. The respondents herein are an agreement holders, who filed suits in O.S.Nos.14 of 2004 and 1 of 2005, for recovery of amount that they paid as an advance on the basis of the sale agreement along with interest. The petitioner herein, as a defendant, raised her defence that there is no privity of contract in payment of interest. The trial Court after considering the evidence of P.W.1, D.W.1 and Exs.A1 to A6 and Exs.B1 to B4, decreed both the suits and awarded interest at the rate of 9% per annum from the date of suits till the date of decree and judgment and thereafter, 6% per annum till realisation, against which, the petitioner preferred the appeals in A.S.Nos.412 and 413 of 2007. After hearing the arguments, this Court dismissed the appeals by judgment dated 22.12.2010. The appellant/petitioner herein, aggrieved against that judgment, without filing second appeal, she come forward with these petitions for modifying the judgment, for waiving interest for the advance amount. 3. The learned counsel appearing for the petitioner submitted that there is no privity of contract for payment of interest. In paragraph-10 of the affidavit, the petitioner has stated that the reply notice has not been considered and analysed. Hence, he prayed for modifying the final judgment dated 22.12.2010 for waiving the interest and for allowing the petitions. To substantiate his argument, he relied upon the decision of the Supreme Court. 4. Refuting the same, the learned counsel for the respondents/respondents/plaintiffs submitted that the properties were absolutely belonging to the petitioner/appellant/defendant. A sale agreement between both the parties and receipt of the sale consideration are admitted. Due to pendency of the proceedings of land acquisition by the Government, the sale deed was not executed. Even though D.W.1/the petitioner has raised a defence that there is no privity of contract for payment of interest, when D.W.1 was in witness box, in her evidence, admitted that she is ready to return the advance amount along with interest. That factum has been properly considered by this Court and passed an appropriate order. If the petitioner is aggrieved by that order, she may very well preferred a second appeal instead of filing the petitions for modifying the judgment dated 22.12.2010. That factum has been properly considered by this Court and passed an appropriate order. If the petitioner is aggrieved by that order, she may very well preferred a second appeal instead of filing the petitions for modifying the judgment dated 22.12.2010. She has also not paid the full advance amount and to show her bona fide, she deposited only the portion of the advance amount. Hence, he prayed for the dismissal of the petitions. He further submitted that the decision relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. 5. Considering the rival submissions made on both sides as well as the materials available on record. 6. The admitted facts are that the petitioner herein is the owner of the properties and she entered into a sale agreement with the respondents herein and received an advance amount. That factum is not disputed. The receipt of advance amount of Rs.4,10,000/- for each sale agreement and the balance sale consideration of Rs.4,10,000/- are admitted. Since the petitioner has not executed the sale deed, the respondents herein as the plaintiffs filed the suits for recovery of the amount advanced. The trial Court, after hearing the arguments and considering the evidence, decreed the suits, against which, the appeals have been preferred by the petitioner herein. In the appeals also, the learned counsel for the petitioner submitted that the respondents/plaintiffs are not entitled for interest, since there is no privity of contract for payment of interest for the advance amount. But, on perusal of the record as well as the evidence of D.W.1/the petitioner herein, her candid admission is that she is ready to pay the interest for the advance amount she received. Considering the same, this Court dismissed the appeals and confirmed the decree and judgment passed by the trial Court. Hence, I am of the opinion that the petitions itself are not maintainable and the petitioner is not entitled to any relief as claimed by her in the petitions. Furthermore, the decision relied upon by the learned counsel for the petitioner reported in AIR 1970 SC 546 (Nathulal v. Phoolchand), is no way applicable to the facts of the present case. Furthermore, the decision relied upon by the learned counsel for the petitioner reported in AIR 1970 SC 546 (Nathulal v. Phoolchand), is no way applicable to the facts of the present case. Moreover, the petitioner herself admitted in her cross-examination that she is ready to pay the interest for the amount she received as an advance and the same has been considered by this Court in paragraphs-19 and 20 of its judgment. In such circumstances, I am of the view that if the petitioner/appellant/defendant is aggrieved by the Judgment of this Court, the only option given to her is to prefer a second appeal not for filing the petitions for modifying the judgment of this Court. This Court also feels the filing of M.P.Nos.1,1 of 2011 in A.S.Nos.412 and 413 of 2007 are one way to delay the tactics for satisfying the decree passed by the Court below. Hence, the petitions are dismissed as devoid on merits. 7. In fine, The petitions are dismissed.