SIVARAMAN Vs. SURESH

JUDGEMENT

(1.) Heard the learned counsel for appellants and the learned counsel for respondent.

(2.) The appellants are the defendants in O.S.No.205 of 2011 before the Principal Sub Court, Irinjalakuda. The suit is one for specific performance of Ext.A1 agreement said to have been executed between the parties to sell the plaint schedule property. Admittedly, the defendants are the owners of the property. The case of the respondent/plaintiff set up in the plaint is that, as per Ext.A1 agreement, the appellants agreed to sell the property for a total consideration of Rs.70.00 lakhs. The appellants entered appearance and contended that they never agreed to sell the property to the respondent. It was only a loan transaction, according to the appellants. The court below, after considering Exts.A1 to A6 and B1 to B3(a) and also Exts.X1 to X4(a)series and further referring to PWs.1 and 2 and DW1 entered a finding as follows: "In the result, the suit partly decreed as follows:

(3.) In paragraphs 39 and 40, the trial court entered a finding that Ext.A1 was executed between the parties with no intention to act upon and there was no agreement between the parties to deal with the immovable properties scheduled to the plaint. According to the court below, it was a monetary transaction and Ext.A1 agreement happened to be executed by the appellants in favour of the respondent for securing a loan. This finding has become final as the respondent/plaintiff has not challenged this finding. In view of the finding by the court below that, there was no agreement for sale between the parties, the specific performance claimed by the respondent was declined. Since the respondent/plaintiff has not preferred any appeal against the decree of the court below, we find that the respondent cannot be heard to contend that the transaction between the parties was not a monetary transaction. The court below rightly found that, the appellants admitted the reception of Rs.26.00 lakhs from the respondent/plaintiff and they are liable to return the money with reasonable interest. The court below fixed 12% interest from 19/8/2010, whereon the last installment of consideration amounting to Rs.26.00lakhs was paid by the plaintiff to defendants (Appellants). Since this being a commercial transaction, we find no reason to differ from the finding of the court below regarding the rate of interest till the decree at 12% and thereafter at 6%. The objection raised by the appellants is regarding the payment of costs. There is a definite finding by the court below that Ext.A1 is not an enforceable agreement. Therefore, the appellants would contend that, the court below should not have granted the entire costs claimed by the plaintiff. Instead, it should have been proportionate to the decree amount. Even though the counsel for the respondent/plaintiff contended that, he is entitled to the court fee paid in full, we cannot agree with that submission for the reason that the adverse finding has not been challenged by the respondent and that part of the decree granted by the court below has attained finality. Therefore, we find that the plaintiff/ respondent is only entitled to get proportionate costs. In the result, the appeal is allowed in part modifying the decree passed by the court below to the following extent: