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2012 DIGILAW 339 (MAD)

M. Ramesh v. I. Karthi

2012-01-24

G.RAJASURIA

body2012
Judgment :- 1. This appeal is focussed by the defendant as against the judgment and decree dated 29.09.2010 made in O.S.No.22 of 2009 on the file of the District Judge of Nilgiris at Udhagamandalam.. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: The respondent/plaintiff filed the suit for specific performance of the agreement to sell and in the alternative, for refund of the advance amount with interest by making the following prayers: "(a) To direct the defendant to execute and register a sale deed in respect of suit schedule property in favour of the plaintiff within a time specified by this Honble Court, failing which the said sale deed be executed and registered in terms of the provisions of the order XXI Rule 34 of CPC also handover to custody of all the original title deeds pertaining to the suit schedule property to the plaintiff and vacate and hand over physical possession of the suit schedule property to the plaintiff; (b) or in the alternative terms directing the defendant to pay the amount received as purchase money, together with accrued interest and damages i.e., Rs.17,75,671/-with the interest at the rate of 18% per annum from the date of suit till the date of decree and thereafter at the same rate, until its realization declaring the said sum which is unpaid purchase money together with interest accrued and costs to be a charge on the suit schedule property, as contemplated under Section 55(6)(b) of the Transfer of Property Act and if the same is not paid within a time stipulated by this Honourable Court directing the sale of the charged property ; and (c) for costs." (extracted as such) 3. The defendant filed the written statement resisting the suit; whereupon issues were framed. 4. During trial, the plaintiff-I.Karthi examined himself as P.W.1 and marked Exs.A1 to A9. The defendant-M.Ramesh examined himself as D.W.1. 5. Ultimately, the trial Court decreed the suit rejecting the prayer for specific performance, but ordering refund of the advance amount with pre suit interest as well as pendentelite interest and post decreetal interest. 6. 4. During trial, the plaintiff-I.Karthi examined himself as P.W.1 and marked Exs.A1 to A9. The defendant-M.Ramesh examined himself as D.W.1. 5. Ultimately, the trial Court decreed the suit rejecting the prayer for specific performance, but ordering refund of the advance amount with pre suit interest as well as pendentelite interest and post decreetal interest. 6. Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, the defendant preferred this appeal on various grounds. 7. The learned counsel for the appellant/defendant placing reliance on the grounds of appeal would put forth and set forth his arguments, which could pithily and precisely be set out thus: (a) The trial Court was not justified in ordering interest, despite giving a finding to the effect that the plaintiff was at default in performing his part of the contract. As such, the finding of the trial Court under additional issue No.1 does not go hand in hand with the awarding of the interest under issue No.2. Normally whenever refund of the advance amount is ordered, pre suit interest is not awarded. In the absence of any contract between the parties relating to payment of interest, awarding pre suit interest is something unknown to law. Pendentelite interest was awarded at enormous rate of 18% per annum, which also cannot be countenanced and upheld under law. (b) Even in the pre suit notice sent by the defendant to the plaintiff, the former unambiguously and unequivocally expressed his desire to return the advance amount, for which there was no positive response from the plaintiff and in such a case, it is something unimaginable as to how the defendant could be made liable to pay interest. (c) Even in the written statement, the defendant candidly and categorically expressed his desire to return the amount. In such a case, even pendentelite interest cannot be mulcted on the defendant. Accordingly, the learned counsel for the defendant would pray for setting aside the judgment and decree of the trial Court and for the dismissal of the suit. 8. (c) Even in the written statement, the defendant candidly and categorically expressed his desire to return the amount. In such a case, even pendentelite interest cannot be mulcted on the defendant. Accordingly, the learned counsel for the defendant would pray for setting aside the judgment and decree of the trial Court and for the dismissal of the suit. 8. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would pilot his arguments inviting the attention of this Court to various portions of the records, which could tersely and briefly be set out thus: (a) The defendant after receiving a huge sum of Rs.10 lakhs as advance from the plaintiff, simply turned turtle and had a volte face and in such a case, the Court was perfectly right in ordering him to pay interest. (b) Even though the defendant in a parrot like fashion stated that he was ready to return the amount, so far, no amount was returned and that bespeaks about the conduct of the defendant. (c) The trial Court taking into account the pros andcons of the matter awarded interest, warranting no interference in the appeal. 9. The points for consideration are as to: (1) Whether the trial Court was justified in awarding pre suit interest on the advance amount? (2) Whether the trial Court was justified in awarding pendentelite interest at the rate of 18% per annum? (3) Whether there is any perversity or illegality in the judgment and decree of the trial Court? 10. All these points are taken together for discussion as they are inter-linked and interwoven with one another. 11. The indubitable and indisputable or atleast, the undeniable and unarguable facts would run thus: There emerged as per Ex.A1, an agreement to sell between the plaintiff and the defendant, whereby the latter agreed to sell his land found described in the schedule of the plaint, in favour of the former for a total sale consideration of Rs.19,20,000/-and under that said agreement, a sum of Rs.10 lakhs was paid by the proposed purchaser in favour of the owner of the land. The time stipulated for performance was three months. So far the above facts are concerned, there is no dispute between the parties. The time stipulated for performance was three months. So far the above facts are concerned, there is no dispute between the parties. On the one hand, the plaintiff would find fault with the defendant for having committed breach of contract in performing his part of the contract, whereas, by way of retaliation, the defendant would find fault with the plaintiff for having failed to perform his part of the contract. As such, there were mutual allegations as against each other, which resulted in the eruption of the suit. 12. A mere poring over and perusal of the judgment of the trial Court would unambiguously and unequivocally highlight and spotlight the fact that there was a finding given by the trial Court to the effect that the plaintiff was at fault in performing his part of the contract. However, the trial Court in its wisdom felt that the defendant should return the advance amount. There is no cross appeal against such a finding against the plaintiff at the instance of the plaintiff. In such a situation, I could see considerable force in the argument of the learned counsel for the appellant that the trial Court having given such a finding for rejecting the prayer for specific performance was not justified in awarding pre suit interest/damages. 13. Trite the proposition of law is that interest/damages cannot be awarded as a matter of course, unless there is some stipulation in the contract itself for payment of interest/damages. No doubt, it is a settled proposition of law that interest by way of damages could be awarded in certain cases, but this is a case in which the facts would speak by themselves that the contract namely Ex.A1 emerged on 27.09.2007. Within a short time there erupted misunderstanding between the parties; one would accuse the other for having allegedly committed breach of the contract. I do not think that there was enormous delay also in that process. The suit itself was filed during the year 2009. It is also a fact to be noted that notice was issued by the defendant calling upon the plaintiff to receive back the amount, for which the plaintiff had not expressed his willingness, but he insisted for specific performance of the agreement to sell. As such, that factor also weighs much with this Court for rejecting the prayer of the plaintiff claiming interest on the advance amount. As such, that factor also weighs much with this Court for rejecting the prayer of the plaintiff claiming interest on the advance amount. If there is anything to show that at the pre litigation stage the defendant by his conduct made the plaintiff to suffer for no fault of him, then atleast the Court in some extraordinary situation could award such interest by way of damages, but that is not the case here. The plaintiff suomotu calculated interest at the rate of 18% per annum from the date of agreement till the date of filing of the suit and such a course in my opinion, is having no back up of the law and the trial Court after giving the finding that the plaintiff was at fault in getting the agreement to sell performed in his favour, simply was not justified in awarding interest at the rate of 18% per annum from the date of the agreement till the date of filing of the suit. As such, in my considered opinion, that portion of the judgment and decree awarding pre litigation interest/damages should be set aside. 14. The learned counsel for the defendant in the same tone and tenor would try to canvass his case to the effect that pendentelite interest cannot be awarded by the Court, for which the learned counsel for the respondent/plaintiff would appropriately and appositely point out that the defendant cannot by his repetitive representation that he was ready and willing to return the amount, simply wriggle out of his liability to pay interest, when in fact he has not chosen to deposit it in Court even after filing of the written statement. No doubt, he expressed his desire to repay the amount and nobody prevented him from depositing it in Court at the earliest point of time. Had he done so, now he could have wriggled out of his liability to pay pendentelite interest. I could see considerable force in the submission made by the learned counsel for the plaintiff. Accordingly, pendentelite interest should necessarily be awarded, but in this case, however 18% interest is something not contemplated even in the Banking Sector and I am of the view that awarding 9.5% interest pendentelite on Rs.10 lakhs would meet the ends of justice. I could see considerable force in the submission made by the learned counsel for the plaintiff. Accordingly, pendentelite interest should necessarily be awarded, but in this case, however 18% interest is something not contemplated even in the Banking Sector and I am of the view that awarding 9.5% interest pendentelite on Rs.10 lakhs would meet the ends of justice. Regarding awarding of 6% from the date of decree till the date of realisation, is quite normal, which is in commensurate with Section 34 of the Code of Civil Procedure. 15. In the result, the judgment of the trial Court shall stand modified as under: The defendant is directed to pay a sum of Rs.10 lakhs (Rupees ten lakhs only) with 9.5% per annum from the date of suit till the date of decree and 6.5% from the date of decree till the date of realisation on the said sum of Rupees ten lakhs with lower Court cost. No costs in appeal.