VISHWANATH Vs. HEERABAI

JUDGEMENT

(1.) Present appeal is filed by the plaintiff, aggrieved by the judgment and order dtd. 14/7/2011 passed in R.A.No.36/1995 on the file of the Fast Track Court-III, Dharwad (hereinafter referred to as 'the First Appellate Court'), in and by which while allowing the appeal, the First Appellate Court set aside the judgment and decree dtd. 7/4/1995 passed in O.S.No.88/1990 on the file of the I Additional Civil Judge, Dharwad (hereinafter referred to as 'the Trial Court') and further held that the legal representatives of the plaintiff are entitled for refund of an amount of Rs.25,000.00 with interest at the rate of 18% per annum from the date of agreement till the date of payment, subject to establishing their right for refund.

(2.) The aforesaid suit in O.S.No.88/1990 was filed by Sri.Vishwanath, father of the appellants herein as plaintiff No.1 along with one Sri.Satyaprakash Nandakumar Mishra as plaintiff No.2, who is respondent No.5 in the present appeal. In the said suit in O.S.No.88/1990, the said plaintiffs contended that the defendant being the owner, in possession of the suit property bearing Sy.No.23 measuring 19 acres 1 gunta and Sy.No.24 measuring 19 acres 26 guntas, totally measuring 38 acres 27 guntas at Halligeri village in Dharwad had agreed to sell the same to the plaintiffs on 23/9/1985 for a sale consideration of Rs.75,000.00 and had executed an agreement of sale in this regard. That the plaintiffs had made part-payment of agreed sale consideration in a sum of Rs.25,000.00 to the defendants and it was agreed that balance amount of Rs.50,000.00 would be paid by the plaintiffs to the defendant at the time of execution of deed of sale before the concerned Sub- Registrar. That the defendant had agreed to execute such deed of sale in favour of the plaintiffs after having the dispute with the Forest Department settled/resolved. That the plaintiffs were always ready and willing to perform their part of contract by paying balance sale consideration of Rs.50,000.00 at any time from the date of agreement of sale. Since the defendant failed to perform his part of contract, plaintiffs caused issuance of notice dtd. 25/6/1990 calling upon the defendant to receive balance sale consideration and to execute deed of sale. Since the defendant failed to comply with the same, the plaintiffs filed suit for specific performance and in the alternative, sought for refund of earnest money of Rs.25,000.00 with interest at the rate of 18% per annum.

(3.) In the written statement, the defendant denied the plaint averments and also questioned the maintainability of the suit on the ground of limitation. It was specifically contended that he had not entered any agreement much less than the one relied upon by the plaintiffs and receipt of Rs.25,000.00 is also denied. In that view of the matter, it is contended that there was no necessity for any reply to the notice issued by the plaintiffs. That defendant issued paper publication on 04. 07.1990 through his power of attorney holder refuting the claim of the plaintiffs having entered into the agreement of sale.