RFA/1459/2014 of SRI M S BALAJI PRASAD Vs SRI NARASIMHA MURTHY on 31 December 2019

JUDGMENT

This is the defendant’s appeal. The’ present respondent as a plaintiff had instituted a suit against thepresent appellant arraigning him as defendant inO.S.No.8641/2007, in the Court of the learned XVIII

Addl.City Civil Judge, at Bengaluru City (CCH-10),(hereinafter for brevity referred to as_ trial Court’), forthe relief of specific performance of contract.

2. The summary of the case of the plaintiff in the|trial Court was that the plaintiff had entered into aregistered Sale Agreement on 2/7.1.200/7 with th defendant agreeing to purchase the suit schedule

property wnicn is an immovable property bearing nouselist No.285 (New No.8), at Geleyara Balaga, 3[rd]“C’ MainRoad, 1[ST]Block, Jarakabandekaval Village, BengaluruMahanagara Palike Ward No.13, measuring 30° x 30.The sale consideration agreed under the agreement wasfor a sum ortV6,50,000/-. Tne defendant had received a.sum of.43 lakhs in cash and a sum otf=2 lakhs in the|form of cheque. Further, the defendant received.another sum of.41 lakh on 4.2.2007 and balance amount)of=50,000/- on 28.2.2007. Thus, the entire saleconsideration was paid to the defendant by the plaintiff.Even after receiving the entire sale consideration, tnedefendant refused to perform his part of the contract.which made the plaintiff to issue a legal notice dated4.6.2007 to him. The defendant got instituted a suit in0O.S.No.8106/2007 through one M.S.Mohankumar andKusuma against himself and the plaintiff for partition RFA.No.1459/20144

and declaration. Hence, the plaintiff filed the suit forspecific performance of contract.

3. In response to the summons, the defendant|appeared|througnNis|counsel|anafiledwrittenstatement, wherein he has stated that, himself and theplaintiff were friends. He sustained loss in the businessand approached the plaintiff for financial assistance. —The plaintiff financed money in the form of loan andobtained signature on various documents and gotexecuted an agreement as aé_ security for moneadvanced. The defendant stated that he has received in.total only a sum of.43,50,000/-, but, the contention |that under the alleged Agreement of Sale, a sum of |4cmlakns in the form of casn was given, was not true. Thedefendant|also.Stated|thatneNas.notagreed ©to sell the suit schedule property, but, he has|Signed the document|Only as a- security tothe loan availed by him. As such, he is ready|

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to repay the loan amountof |=3,50,000/- along with bank|interest, provided the plaintiff cancels the alleged Sale|Agreement and returns the original documents obtained at the time of advancing the loan. He also stated thatthe suit property is a joint family property, as such, hisbrother and sister have filed a suit in O.S.No.8106/200/7for partition, in which, the plaintiff is also a party.

4. Based on the pleadings of the parties, the trialCourt framed the following issues :

1. Whether the plaintiff proves that the defendanthas agreed to sell the suit schedule property to.theplaintiffOf)2/.1.2007|for.adSaleconsideration of Rs.6,50,000/-?has agreed to sell the suit schedule property to.theplaintiffOf)2/.1.2007|for.adSaleconsideration of Rs.6,50,000/-?

>.Whether tne plaintiff further proves tnat he nas|paidtheentire|Saleconsideration|Of|Rs.6,50,000/- to the defendant?|paidtheentire|Saleconsideration|Of|Rs.6,50,000/- to the defendant?|

3,Whether tne plaintiff proves that ne is ready andwilling to perform his part of contract?willing to perform his part of contract?

4 Whether the defendant proves that ne )nasexecuted the document only for the purpose of.loantransactionforNavingrecelvedRs.3,50,000/- from the plaintiff?|executed the document only for the purpose of.loantransactionforNavingrecelvedRs.3,50,000/- from the plaintiff?|

5. Whether the plaintiff is entitled for the specific.performance of contract under Section 20 of|Specific Relief Act?performance of contract under Section 20 of|Specific Relief Act?

6. What order or Decree?

The plaintiff in order to prove his case, got himself|examinedas|PW -1and|examinedoneSrl K.C.Narasimnaian as PW-2 and got marked documentsat Exs.P-1 to P-6. The defendant got himself examined.as DW-1 and no documents as exhibits were markedfrom his side.

The trial Court after hearing both side, while)answering issue Nos.1, 2, 3 and 5 in the affirmative andissue No.4 in the negative, by its Judgment and decreedated 30.6.2014, decreed the suit of the plaintiff withcost, directing the defendant to execute a registered

Sale Deed, conveying tne suit scnedule property infavour of the plaintiff and to deliver the physicalpossession of the suit schedule property to the plaintiff.It is against the said judgment and decree, thedefendant has preferred this appeal.

5. Lower Court records were called for and tneSame are placed before this Court.

6. Heard the arguments of the learned counsel|from both side and perused the materials placed beforethis Court, including the memorandum of appeal and the.impugned judgment.

7. For the sake of convenience, the parties would|

be referred to as per their ranks before the trial Court. ©

8. In the light of the above, the points that arise|for my consideration are :

(1) Whether the plaintiff nas proved tnat thedefendant has agreed to sell the suit schedule|property to him on 27.1.200/7 for a_ salconsideration of<0,50,000/-?

(2) Whether the plaintiff has proved that henad paid the entire sale consideration ofz6,50,000/- to the defendant?|

(3) Whether the plaintiff has proved that hewas ready and willing to perform his part of.the contract?

(4) Whether the defendant has proved that henas executed the document at Ex.P-1 only as a.security for the loan transaction of a loan|amount of.r3,50,000/- borrowed from the.plaintiff?

(5) Whether the plaintiff is entitled for therelief of specific performance of the contract|under Section 20 of the Specific Relief Act?

(6) Whether the Judgment and decree underappeal deserves any interference at the handsof this Court?

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9. Tne plaintiff as PW-1 in his examination-in-cniet|filed in the form of affidavit evidence has reiterated thecontentions taken up by him in his plaint. To supporthis contention that the defendant had agreed to sell thesuit schedule property to him for a consideration ofV6,50,000/- under a registered Agreement of Sale, he|has produced registered Deed of Agreement to Selldated 2/7.1.200/7 at Ex.P-1. To snow tnat he also causeda legal notice upon the defendant calling upon him to.execute the registered Sale Deed, PW-1 has produced a.copy of the legal notice dated 4.6.200/7 at Ex.P-2, itspostal acknowledgement to evidence the service of the.Said notice upon the defendant at Ex.P-3, Certificate ofPosting to the same effect is at Ex.P-4 and the postalreceipt at Ex.P-5.

10. Theplaintiff|gotexaminedoneSri.K.C.Narasimhaiah, son of Channaiah, as PW-2, which

witness In his examination-in-cnief filed in tne form ofaffidavit evidence has stated that he was one of the'witness to the registered Sale Agreement at Ex.P-1dated 27.1.200/7, wherein the defendant agreed to sellthe suit schedule property to the plaintiff for a totalconsideration otfV6,50,000/-. Tne witness has also)stated that defendant received a cash of43 lakhs and|received anotner sum of|V2 lakns in the form of cheque.Six months period was fixed for the completion of thesale transaction, within which period, the plaintiff had to.pay the balance amount of 41,50,000/-. The witness|Nas also stated that he was informed by the defendantthat he was in financial difficulties and therefore, he is.selling his property to the plaintiff to meet nis financialrequirement.|

11. The defendant got himself examined as DW-1,.who in his examination-in-chief filed in the form of

affidavit evidence nas reiterated tne contentions takenup by him in his written statement. As observed above,no documents were marked as exhibits from his side.

12. Learned counsel for the appellant in his.argument submitted that payment of a casn of.V3 lakns|from the plaintiff to the defendant is not admitted by the.defendant and that Sale Agreement at Ex.P-1 cannot betaken as out and out Sale Agreement, but, it has come.Under the circumstances narrated in the’ writtenstatement. The learned counsel for the appellant alsosubmitted that had the plaintiff paid the entire saleconsideration, he could have insisted for execution ofthe Sale Deed immediately instead of entering into anAgreement of Sale as per Ex.P-1. This circumstance.would go to show that the defendant was not ready tosell his property.

13. Learned counsel for the respondent in his.argument submitted that law does not mandate that themoment the entire sale consideration is paid, on thevery same day, the Sale Deed is required to beexecuted. In the instant case, the balance amount waspaid in two installments, as such, the Sale Agreement asper Ex.P-1 was entered into.

14. It is not in dispute that the parties to thelitigation were Knowing eacn otner since prior to thealleged date of transaction. PW-1 in his’ cross-examination has _ reiterated the same _ stating tdefendant was known to him since five to six years priorto the date of his cross-examination, which was on29.5.2010. As such, the alleged Agreement of Sale at.Ex.P-1 falls within the said period of acquaintancebetween the parties. The defendant has not denied ofhe executing the Agreement of Sale at Ex.P-1, however,|

nis contention is tnat since ne was in financial distress.and was In need of financial assistance in the form of loan, he was conditioned to sign the said document by.the plaintiff before he could get the loan from him. Assuch, he has executed the Agreement of Sale. Asuggestion to the said effect was made in the cross-examination of PW-1, which the witness has _ noadmitted as true.

It was also suggested to PW-1 in his cross-examination that it is onlyL2 lakhs that was paid to thedefendant under the said agreement and a sum of=3 lakhs shown in the said agreement has not been paidto the defendant in cash, but, the same was promisedto be paid to him within a month thereafter. However,the witness has not admitted the said suggestion astrue. It was also suggested to PW-1 that after the saidagreement, due to financial constraint, the defendant RFA.No.1459/201414.

requested for the payment of the said amount of |=3 lakhs, it is in that regard, a sum of41 lakh andanother sum otf=50,000/- were paid to him by the.plaintiff. However, PW-1 has not admitted thnose|suggestions also as true. Barring the same, regardingexecution of the Sale Agreement at Ex.P-1 and receipt of|the sale consideration shown therein by the defendant,has not been further denied in the cross-examination ofP\W-1.

15. In the cross-examination of PW-2, nothingmuch could be elicited regarding the execution of Ex.P-1and the receipt of the consideration amount shown.therein. Though PW-2 in his cross-examination has|stated that he does not know as to what its written InEx.P-1, however, he has given the description of the|Said document and the nature of transaction that was|entered into through the said document and shown that

15. Ex.P-1 was entered into in respect of house of thedefendant at Geleyara Balaga. He reiterated in hiscross-examination that it was in his presence, thedefendant received money.

16. DW-1 In his cross-examination has admitted.that Ex.P-1 is the registered Sale Agreement and Exs.P-l(a), P-1(b), P-1(c) and P-1(d), are his signatures in-the said document. He has also admitted as true that In|nis written statement, ne has acknowledged the receiptOf =1 lakh from the plaintiff on 4.2.200/7 and anothersum of450,000/- from the plaintiff on 28.2.2007. Hehas also admitted his signature in Ex.P-1 to that effectat Ex.P-1(g) and P-1(h). He has identified theendorsement made with respect to those signatures. —This evidence of DW-1 about he executing theAgreement to Sell at Ex.P-1 and acknowledging theendorsement at Ex.P-1(e) and P-1(f), would falsify his

own contention tnat he nas not received a casn of=3 lakhs under the Agreement at Ex.P-1 and that he has|received only a sum of|43,50,000/-. It is for the reason.that, had the defendant not received a cash of.43 lakns|under Ex.P-1, but, has received only a sum of V2 lakns.in the form of cheque and a sum otf=1 lakh in cash on|4) 2700/7 and anotner sum of450,000/- in cash on.28.22.2007, he would not have mentioned in the snara atEx.P-1(f) that the balance amount ofV50,000/- was.received by him and that there was no balance under|the Sale Agreement as on 28.2.2007. The saidendorsement acknowledged by none else than thedefendant as DW-1 would falsify his case that he has notreceived a casn ot =3 lakhs under the said agreement.Had|ne not received tne said sum ot Z3 lakns In casnUNderTEX.P-1, then, he would not have mentioned that after|receipt of=50,000/- from plaintiff as per Ex.P-1(f) on28.2.200/7,stating that there was no Dalance remaining as due amount under the agreement. Such an endorsementSpecifically mentioning that there was no_ balanceamount under the agreement would clearly go to showthat the defendant has received the entire saleconsideration as mentioned in Ex.P-1. This apart, theevidence of PW-2 also further corroborates that it was In|his presence, a sum of)43 lakhs was paid to the)defendant in cash as on the date of the agreement,which was on 27.1.2007. Therefore, the first contention of the appellant/defendant that payment of cash of=3 lakhs by the plaintiff to the defendant is not proved,|is not acceptable.

17. The second point of argument of learnedcounsel]for.theappellant/defendantIStnat|tneagreement at Ex.P-1 cannot be taken as out and out.Sale Agreement, but, the agreement has come under.the circumstances narrated in the written statement.

RFA.No.1459/201418.

Per.contra,jiearneccounsel]for.tnerespondent/plaintiff in his argument submitted thatdefendant is an educated person and a Graduate inBachelor of Engineering and he was also involved indoing the business. As such, he cannot contend that hewould Nave succumbed to any alleged pressure or that it.is unbelievable that the document was executed only asa security.|

18. As already observed above, the defendant in.his written statement has taken a contention that he hadinvested a huge amount of436 lakhs in the business|and he had also borrowed huge amount to arrange forcapital for nis business wnich was snattered into piecesand the creditors were pounced upon him to repay theloan which he had taken from them. Thus, in order tocome out from grave situation, he had no other go, but,to raise money on the immovable property. In that

connection, ne met the plaintiff, wno after hearing nisdifficulty, agreed to financially help him, provided thedefendant executing a document in the nature ofAgreement of Sale in respect of one of the property anda Sale Deed in respect of another property. Thus, hewanted the property as a security. The defendantreposing faith and confidence in the plaintiff, hadexecuted the documents.

The said contention of the defendant which Is In.the form of his pleading in the written statement gets nocorroboration, except his self-serving testimony as >DW-1. Had really the defendant had invested hugeamount of L36 lakhs in the business and incurred loss/and that the borrowers were pestering him, demandingthe repayment of the loan, then, the defendant wasexpected to have sufficient documentary proof also toprove the same in the form of Books of Accounts and

20. Balance Sneet of nis business and also the loandocuments executed, if any, in favour of lenders ofmoney to him. The defendant has not chosen toproduce any of those documents which he is expected tohave with him as a businessman and_ an industrialist,except stating in his oral evidence that he had incurredhuge loss and was compelled to borrow money.

19. Assuming for a moment that the defendant hadincurred Nuge loss and was in need of money to repayto some of the creditors, still, if the plaintiff, as a lender,was insisting some immovable property as a security,then, at the maximum, the defendant should haveexecuted a Deed of Mortgage with respect to the suitschedule property and not necessarily an Agreement ofSale. A Deed of Mortgage would have been a properform of document for him in the alleged circumstancesof the case. Even he could have hypothecated the plant

and machineries of his business/industry, whicn heclaims to have run by him. But, without taking any.steps in that regard, he simply yielding to the alleged.demand of the plaintiff and executing a _ registereAgreement of Sale as per Ex.P-1 is not believable in the.circumstances of the case. Further, the evidence of |PW-2 also would go to show that the defendant hasexecuted the Agreement at Ex.P-1, which Agreementwas with respect to the house of the defendant atGeleyara Balaga.

20. Added to the above, the reason for the sale of|the property as shown in the Agreement at Ex.P-1 is forthe domestic expenses and other contingencies. Thedefendant being a Bachelor of Engineering Graduate and.running an industry though assumed to Nave agreed toexecute an Agreement of Sale, still, Nhe could havementioned the reason in the agreement as to repay the.

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joan.aMOounNCOVarious|creditors,wnicnISNis|explanation in the written statement. Even that also thedefendant has not done. Therefore, the secondargument of the learned counsel for the appellant thatEx.P-1 was not intended to be an agreement of sale,but, it was only a document executed as a security tothe loan, is alSo not acceptable.

21. The third point of argument of learned counsel for the appellant is that the plaintiff could have got theSale Deed itself executed on 27.1.200/7 instead ofentering into an Agreement for Sale. The said argument.is also not acceptable for the reason that, evenaccording to the Agreement at Ex.P-1, which is dated2/.1.200/7, the entire sale consideration was not paid onthe very same day of the agreement. It is only aportion of the amount amounting to=5 lakhs was paid to.the defendant and the balance of =1,50,000/- was paid

23. in two installments at41 lakh and|450,000/- on 4.2.200/7and 28.2.200/7 respectively. Tnerefore, insisting forexecution of Sale Deed on 27.1.2007 itself when only apartial sale consideration was paid by the plaintiff to thedefendant is not possible and generally no prudent sellerwould execute an absolute Sale Deed by receiving a partof the sale consideration. As such, the said argument ofthe learned counsel for the appellant on the said point is”also not acceptable.

22. The appellant did not cnallenge about the)alleged readiness and willingness of the plaintiff toperform his part of the contract. The proven fact thatthe plaintiff who was under an obligation to pay the saleconsideration under Ex.P-1 since had paid the entire saleconsideration as on 28.2.200/7, there remained nothingfor him to perform anything more under the contract. —On the other hand, he has requested the defendant to

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execute tne Sale Deed in his favour even by sending alegal notice in that regard on 4.6.2007 which is atEx.P-2. The postal acknowledgment card, certificate ofposting and the postal receipt at Exs.P-3, P-4 and |P-5, would go to show that the said legal notice was.served upon the defendant. In spite of the same, thedefendant did not chose to respond to the said noticeand did not even reply to it. On the other hand, in hiswritten statement, he came up with a contention thatthe suit schedule property was a joint family propertyand that a suit for partition in O.S.No.8106/2007 hasbeen instituted by his brother and sister claiming their.Share in the suit schedule property. However, excepttaking such a contention, the defendant could not able.to establish the said contention. For that matter, he didnot even produce the copies of the plaint in the saidO.S.No.8106/2007 and got it marked as an exhibit. On.the other hand, the plaintiff, in the cross-examination of

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DW-1, as well the argument of learned counsel for therespondent, could able to show that the copies of theWrit Petition in Writ Petition No.15805/2011, which wasfiled by the sister of the defendant, wherein thedefendant was a respondent, was served upon theplaintiff's counsel who was also a respondent in the saidpetition by none else than the present defendanthimself. Thus, the argument of learned counsel for therespondent that the appellant has not approached thisCourt with clean hand, cannot be ruled out.

23. The last point to be considered is whether the|plaintiff is entitled for the relief of specific performance.On this. point, learned counsel for the appellantsubmitted that the suit schedule property is the onlyproperty of the appellant/defendant, as such, greaterhardship would be caused to him if the decree forspecific performance is confirmed. He further submitted RFA.No.1459/201426.

that this Court can order for refund of the amountreceived by the defendant with some additional amountin the form of compensation in lieu of specificperformance. In his support, learned counsel relied upona judgment of Co-ordinate Bench of this Court inSmt,RanganayakammaN,GovindaNarayan,reported inAIR 1982 Karnataka 264,and a juaqgment ofHon'ble Apex Court in.Jayakantnam and others -vs-Abaykumar,reported in.[2017 (1) Kar.L.R. 697 (SC)].

24. In.Smt.Ranganayakamma’sCase(supra)Cd TDivision Bench of this Court was pleased to observe inPara-12 of its judgment as Delow :

“lt is Qa well established doctrine that theCourt will not enforce specific performance ofa contract, the result of which would be toimpose great hardship on either of the partiesto it. Section 20 of the Specific Relief Act,1963 provides that tne jurisdiction to decreespecific performance is discretionary and theCourt is not bound to grant sucn relief merely

because It is lawful to do so. The discretion ofthe Court however, should be exercised onreasonable principles capable of correction bya Court of appeal. When the Section statesthat“thejurisaiction todecreeSDECITICperformance is discretionary” to it only meansthat the mere existence of a legal right is notSufficientTo attracttheremedy.Anagreement may be valid in law and there maynot be sufficient grounds for its cancellation;yet, upon a fair and just consideration of theattendant circumstances, the Court mayabstain from its enforcement. ”

25. IniJayakantnam’sCASC|(supra),with respect.

to Section 20 of the Specific Relief Act, 1963,(hereinafter for brevity referred to as Specific ReliefAct’), after considering the facts before it, the Hon'ble.Apex Court at Para-12 of its judgment was pleased toobserve as below :.

“A decree for the payment of compensation inlieu of specific performance would meet the enas of Justice. As we nave noted earlier thefather of the respondent paid an amount ofrupees sixty thousand to the appeltiants in June1999 of the total agreed consideration ofRs.1.60 lakns. Tne appellants have voluntarilyoffered to pay an amount of rupees ten lakhs,as just compensation in fieu’ of specificperformance. In our view, the ends of Justicewould be met by directing the appellants topay to the respondent an amount of rupeesfifteen lakhs tn lieu of specific performance.”

26. Learned|counsel|for.tneappellant.also|submitted that the sale consideration being a verymeagre amount and there is escalation in the value of.the property, the order for specific performance is notwarranted in the circumstances of tne case.

Learned.counsel for.therespondent.Inhis.argument submitting that escalation of price is not aground to deny the specific performance of Agreementto Sell, relied upon a judgment of Hon’ble Apex Court in.

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Narinderjit Singh -vs- North Star Estate Promoters|Limited,reported inAIR 2ZOLIA SC 2035.In the said|case, while discussing the scope of Section 20 of SpecificRelief Act, the Hon’bie Apex Court was pleased to noidthat, as the question of price is not a ground to denyspecific performance of Agreement to Sell, more so,when seller/defendant had neither pleaded hardship norproduced any evidence to show that it will be inequitableto order specific performance of agreement.

2/. Learned counsel for the respondent submittingthat discretion of the Court under Section 20 of SpecificRelief Act cannot be of sympathetic consideration, reliedupon a judgment of Hon’ble Apex Court in —kK,Prakash vs- B.R.Sampatn Kumar,|reported in.2014 AIR SCW5795.In the said case, while dealing with Section 20 of.the Specific Relief Act, Their Lordships were pleased toobserve that though the grant of specific performance.Under|Section20|oftheSpecificRelief.ActIS.

30. discretionary and not arbitrary, but, the Appellate CourtShould not exercise discretion against the grant ofspecific performance on extraneous considerations orsympathetic considerations when once the trial Courtnas exercised the discretion.

28. Learned counsel for the respondent during the|course of his argument also submitting that afterconsidering the circumstances of the case, if the CourtComes|tO|aconclusionthat|CO keep|theappellant/defendantalso|Insafeplace,therespondent/plaintiff may be asked to pay a smalladditional amount in addition to the total consideration|which has already been paid by him, relied upon ajudgment of Hon’ble Apex Court in |Zarina Siddiqui -vs-A.Ramalingam alias R.Amarnatnan,reported in|AIR2015 SC 580,in his support.

In the said case, the Hon’bie Apex Court while)discussing the scope of Section 20 of Specific Relief Act,observed that relief of specific performance is adiscretionary relief. The conduct of the parties isrelevant consideration for granting or refusing specificperformance. It observed that, in the case before it, thedefendant|hadmade.afalse.statementdenyingexecution of the agreement and had withheld theevidence, as such, was not entitled to exercise discretionin his favour and refuse performance. However, theCourt observed that considering the fact that the suitwas remaining pending in different Courts and there was.phenomenal increase in price during the period ofpendency, the plaintiff though found entitled to decreefor specific performance, the decree granted on acondition to pay415 lakhs in addition to the amountalready paid.

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29. In|tneinstantCdaSé€tnough|tne|appellant/defendantcontends.that|thealleged|consideration for the suit schedule property wasinadequateandMEagef, but,except|makingasuggestion to PW-1 in his cross-examination that themarket value of the property in the surrounding areaWas at47,000/- to=8,000/- per sq.ft., has not placedany other material to snow that he was not satisfied|with the consideration amount agreed under Ex.P-1.

Explanation-1 to Section 20 of the Specific ReliefAct, states that mere inadequacy of consideration or themere fact that tne contract is onerous to tne defendantOr improvident in its nature, shall not be deemed to.constitute an unfair advantage within the meaning ofClause-(a).OPNardsnipwitnintnemeaningof |Clause-(b). AS such, a mere contention in the argumentthat the consideration was inadequate cannot be asground to deny the relief of specific performance to the

33. plaintiff, provided he is entitled for the said reliefotherwise. |

30. However, during the course of argument when|an attempt to settle the matter between the parties wasmade, on the enquiry by the Court, both the partiesuniformly submitted that the market value of the suitschedule property as on the date of alleged agreement.was between=3,000/- and.43,500/- per sq.ft. The same|was also recorded in tne order sneet dated 11.12.2019.Thus, even according to the parties, the prevailingmarket rate of the suit schedule property was very muchhigher than the agreed sale value under Ex.P-1. Theappellant/defendant contends that the suit scheduleproperty is his only property required for his residence,as sucn, he prays for retention of the property by nim,however, he has shown his inclination to compensatethe respondent/decree holder by paying an additionalSUM whicn is in aadaition to tne refund of tne sale RFA.No.1459/2014340

consideration of =6,50,000/-. It is on the said point, theappellant has also relied upon the judgment inJayakantham’sCeASC(supra).

Analysis

31. Though the respondent denies that the suitschedule property is the only property available for theappellant for his residence, but, there are no material toshow that the appellant/defendant has any otherproperty for his residence. In that circumstances of thecase, I am of the view that justice would prevail if therespondent/decree holder is suitably compensated bydirectingtheappellant/defendant TO.DayCO.therespondent/plaintiff a reasonable amount which wouldnot subject him to any hardship or injustice. InJayakantnam’sCaSC|(supra),in return of the agreed|consideration otf=1,60,000/-, the Hon’ble Apex Court.nas directed the appellants to pay the respondent anamount otf=15 lakhs in lieu of specific performance|

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whicn Is apout 9.3/7 times more tnan tne saleconsideration.

32. Applying the same ratio and also considering|the fact that if the respondent is required to purchasesimilar property, ne has to pay a nuge amount, theCourt is of the view that the appellant be directed to paythe respondent an amount of 9.3 times more than whatthe amount received by him. The same would serve theends of justice and would not cause hardship to either ofthe parties. The appellant/defendant would retain thepropertyfor.himself,at.theSametime, therespondent/plaintiff/decree holder would also be not putto any hardship. Accordingly, the defendant who hasreceived a sum of.46,50,000/- under Ex.P-1 would be|required to pay a sum _. 460,45,000/- to the|respondent/plaintiff herein within a period of sixty daysfrom today. Upon the expiry of period of two months,

36. the amount shall carry interest at the rate of 9% p.a. tillpayment or realisation.

33. Accordingly, I proceed to pass the following|order:

ORDER

The Appeal isallowed in part» The judgment anddecree dated 30.06.2014, passed by the learned XVIIIAddl.City Civil Judge, Bengaluru City (CCH-10), inO.S.No.8641/2007, is modified to the extent that thesuit of the plaintiff for the relief of specific performanceis rejected, Nowever, he is entitled for refund of theamount of46,50,000/- paid by him to the defendant as.a sale consideration together with additional amount of=53,95,000/-, thus, in total amounting to460,45,000/-..The defendant to pay the said amount to the respondentwithin a period of sixty days from today. Upon theexpiry of period of two months, the entire amount shall carry interest at the rate of 9% p.a. till payment orrealisation.

Draw modified decree accordingly.

The Registry is directed to transmit a copy of this)

Judgment along with lower Court records to the lower —Court without delay.

In view of disposal of the appeal, IA.No.1/2014|does not survive for consideration.

DK/

Sd/-|

JUDGE|