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2014 DIGILAW 340 (KAR)

C. D. Hanumantharaju v. Thirumalaraju

2014-03-10

H.BILLAPPA

body2014
ORDER H. Billappa, J. 1. This appeal by the legal representatives of the original defendant 1 is directed against the judgment and decree dated 15-2-2012, passed by the Senior Civil Judge, Chikmagalur in O.S. No. 233 of 2003 which has been confirmed modifying the interest by the Additional District Judge, Chikmagalur, in R.A. No. 36 of 2012. Aggrieved by that, the appellants who are the legal representatives of the original defendant 1 have filed this second appeal. 2. Briefly stated the facts are: The first respondent-plaintiff filed suit in O.S. No. 233 of 2003 for the specific performance of the sale agreement dated 5-2-2001 and in the alternative for recovery of a sum of Rs. 5,00,000/- with interest at 21% p.a., from the date of agreement till the date of realization. The first defendant resisted the suit denying the plaint averments and contending that the suit schedule property is ancestral property and he is not the exclusive owner and the sale agreement is concocted. It is denied that the plaintiff has paid a sum of Rs. 5,00,000/- as advance. 3. The Trial Court considering the material on record has held that the execution of the sale agreement dated 5-2-2001 has been proved and a sum of Rs. 5,00,000/- has been paid as advance. Consequently, the Trial Court has decreed the suit directing the appellants i.e., the L.Rs of the first defendant to pay a sum of Rs. 5,00,000/- with interest at 18% p.a. from the date of agreement till the date of decree and future interest at 9% p.a. from the date of decree till the date of realisation. 4. Aggrieved by that, the appellants herein have preferred an appeal in R.A. No. 36 of 2012. The Appellate Court by its judgment and decree dated 25-4-2013 has modified the judgment and decree passed by the Trial Court and has directed the appellants to pay a sum of Rs. 5,00,000/- with interest at 15% p.a. from the date of sale agreement i.e., 5-2-2001 till the date of judgment and future interest at 9% p.a., from the date of judgment till the date of realisation. 5. Aggrieved by that, the appellants herein have preferred this second appeal. 6. The learned Counsel for the appellants contended that the impugned judgment and decrees cannot be sustained. 5. Aggrieved by that, the appellants herein have preferred this second appeal. 6. The learned Counsel for the appellants contended that the impugned judgment and decrees cannot be sustained. He also submitted that the Courts below have erred while holding that the sale agreement dated 5-2-2001 has been proved and advance amount of Rs.5,00,000/- has been paid. Further he submitted that there is no evidence on record to show that a sum of Rs. 1,50,000/- was paid. Further he submitted that the Courts below have erred while awarding interest beyond 6% per annum. He placed reliance on the following decisions: Deepak Rajani v. K.B. Pampapathi (since deceased) by his L.Rs. 2011 (6) Kar. L.J. 98 (DB) : 2011 (4) AIR Kar. R. 445 (DB). Govind Traders (dealing in Cotton and Cotton Seeds), Bijapur v. Amrutlal Shantilal Shah, Bijapur 2013 (1) KCCR 131 . 7. As against this, the learned Counsel for the first respondent submitted that the impugned judgment and decrees do not call for interference. He also submitted that the Courts below on proper consideration of the material on record have concurrently held that the sale agreement dated 5-2-2001 has been proved and advance amount of Rs. 5,00,000/- has been paid. Therefore, the Courts below have directed the appellants to pay a sum of Rs.5,00,000/- with interest. Further, he submitted that the findings recorded by the Courts below are based on evidence and no substantial question of law arises for consideration in this appeal. Therefore, the appeal is liable to be dismissed. 8. I have carefully considered the submissions made by the learned Counsel for the parties. 9. The point that arises for my consideration is: Whether any substantial question of law arises for consideration in this appeal and the impugned judgment and decrees need modification? 10. The suit is for specific performance of the sale agreement dated 5-2-2001. The respondent-plaintiff has contended that the sale agreement dated 5-2-2001 was executed by the first defendant and a sum of Rs. 5,00,000/- was paid as advance to the first defendant. The first defendant has denied the execution of the sale agreement as well as the receipt of advance amount of Rs. 5,00,000/-. 11. The Trial Court considering the material on record and the evidence of P.Ws. 5,00,000/- was paid as advance to the first defendant. The first defendant has denied the execution of the sale agreement as well as the receipt of advance amount of Rs. 5,00,000/-. 11. The Trial Court considering the material on record and the evidence of P.Ws. 1 and 2 and Exhibits P. 1 to P. 3 and P. 8 has held that the execution of the sale agreement dated 5-2-2001 has been proved and a sum of Rs. 5,00,000/- has been paid as advance to the first defendant. The Appellate Court has confirmed the findings recorded by the Trial Court holding that execution of sale agreement dated 5-2-2001 has been proved and advance amount of Rs. 5,00,000/- has been paid. However, the Appellate Court has directed the appellants to pay the interest at 15% p.a., instead of 18% p.a. from the date of sale agreement i.e., 5-2-2001 till the date of judgment and future interest at 9% p.a. from the date of decree till the date of realisation. 12. It was contended by the learned Counsel for the appellants that there is no evidence to show that a sum of Rs. 1,50,000/- was paid. P.W. 1 has deposed that a sum of Rs. 5,00,000/- was paid as advance. A sum of Rs. 1,50,000/- was paid 15 to 20 days prior to the agreement and a sum of Rs. 3,50,000/- was paid on the date of agreement. P.W. 2 has deposed that a sum of Rs. 3,50,000/- was paid on the date of agreement. 13. The recitals of Ex. P. 2-sale agreement show that a sum of Rs. 5,00,000/- was paid as advance. Both the Courts below have concurrently held that Ex. P. 2-sale agreement has been proved. The recitals of sale agreement coupled with oral evidence of P.Ws. 1 and 2 clearly show that a sum of Rs. 5,00,000/- has been paid as advance. The Courts below have rightly held that sale agreement has been proved and advance amount of Rs. 5,00,000/- has been paid. Insofar interest is concerned, I find some force in the submission of the learned Counsel for the appellants. This Court in Govind Traders case has held, in the absence of contract interest at the rate of 6% p.a., from the date of decree would meet the ends of justice. 5,00,000/- has been paid. Insofar interest is concerned, I find some force in the submission of the learned Counsel for the appellants. This Court in Govind Traders case has held, in the absence of contract interest at the rate of 6% p.a., from the date of decree would meet the ends of justice. From the date of suit till the date of decree interest is awarded at 12% p.a. In Deepak Rajani's case, this Court has awarded interest at the rate of 6% p.a. in similar circumstances. Therefore, in my considered view, it is appropriate to award interest at 6% p.a. instead of 15% p.a. as awarded by the Appellate Court. It requires modification. Accordingly, the impugned judgment and decrees passed by the Trial Court in O.S. No. 233 of 2003 and the Appellate Court in R.A. No. 36 of 2012 stand modified directing the appellant to pay a sum of Rs. 5,00,000/- with interest at 6% p.a. from the date of sale agreement i.e. 5-2-2001 till the date of realisation. The appellants shall pay the cost awarded by the Trial Court. The appeal is allowed as above. I.A. No. 1 of 2013 does not survive for consideration and accordingly it is rejected.