MEHABOOB Vs. HAYATBI

JUDGEMENT

(1.) Though the matter is listed for admission, with the consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

(2.) In the present appeal, the appellant has questioned the validity of the judgment passed in R.A.No.448 of 2009, dated 15th September 2011, on the file of the IV-Fast Track Court, Belgaum.

(3.) Brief facts of the case are that the appellantplaintiff entered into an agreement of sale of property with the defendant No.1 -- deceased Noor Ahmed S/o.Bashir Ahmed Kalaigar in respect of the portion of CTS No.1038/1A-C situated at Kalaigar Galli, Belgaum, measuring East-West -- 8'.6' North-South -- 13'.9' in length having an area of 116.87 sq.ft. The deceased defendant No.1 is said to have availed loan from the Maratha Co-op. Bank Limited in order to meet the default in the payment of loan of the Bank, the deceased Noor Ahamed entered into an agreement of sale with the appellant-plaintiff. In other words, the sale agreement is only with reference to the security and not with an intention to sell the property. In terms of the sale agreement, the appellant-plaintiff has shown is readiness for execution of the sale agreement, for which defendant No.1 -- the deceased Noor Ahmed has not complied with the terms and conditions stated in the sale agreement. Thus, the appellant has filed a suit for specific performance and the said suit was decreed on 19th January 2006. Feeling aggrieved by the decree passed in O.S.No.4 of 2003, the L.Rs. of the deceased Noor Ahamed preferred an appeal before the Court of the IV-Fast Track Court, Belgaum, which was numbered as R.A.No.448 of 2009. In the said regular appeal, the decree was reversed while rejecting the relief of the appellant-plaintiff, which was filed for specific performance and directed that the plaintiff is entitled to recover the earnest money of Rs.13,000/- from the defendants with interest at the rate of 18% p.a. from the date of the agreement till its realization and also damages of Rs.25,000/-.