M. NAGARATHNA Vs. PUSHPAMMA

JUDGEMENT

(1.) This matter is listed for admission and I have heard the learned counsel appearing for the appellant and learned counsel appearing for the respondent.

(2.) This appeal is filed against the concurrent finding and the Trial Court granted the alternative relief directing the defendant to refund the earnest money of Rs.7,00,000.00 to the plaintiff within two months from the date of the order and in default, the defendant shall pay interest on Rs.7,00,000.00 at the rate of 10% per annum compounded half yearly from the date of the order till realization of the amount and declined to grant the relief of specific performance, though comes to the conclusion that agreement is proved by answering issue No.1. The Trial Court also comes to the conclusion that the defendant has received the amount of Rs.7,00,000.00 while answering issue No.2 and the plaintiff was always ready in answering issue No.3 as 'affirmative'. But, while answering issue No.4 whether the plaintiff is entitled for the relief of specific performance of agreement, considered the factual aspects that there was an earlier agreement prior to the sale agreement i.e., in favour of one Mr. K. Chandru from whom, the defendant also taken the amount of Rs.3,50,000.00. Apart from that, the Trial Court also taken note of the circumstances under which she was forced to take the money which has been extracted in paragraph Nos.16, 17, 18 and 19. The Trial Court also relied upon the judgment in RANGANAYAKAMMA VS. N. GOVINDARAJAN reported in 1982 (1) KLJ 385.

(3.) Being aggrieved by the said judgment granting alternative relief of refund of money, an appeal is filed before the First Appellate Court in R.A.No.5071/2018. The First Appellate Court also having reassessed both oral and documentary evidence as well as question of fact and question of law, answered the points for consideration which have been framed whether plaintiff is entitled for the relief of specific performance and whether an application filed under Order XLI Rule 27 CPC deserved to be allowed. Both the points are answered as 'negative' and confirmed the judgment of the Trial Court rejecting the application filed under Order XLI Rule 27 CPC. Being aggrieved by the concurrent finding, present second appeal is filed before this Court.