GAYABAI GADEKAR Vs. NALINI

JUDGEMENT

(1.) This appeal arises out of judgment and order dated 22nd August, 2013 passed by the Principal District Judge, Buldana in RCA No. 102 of 2008 which was dismissed. The said appeal had arisen from judgment and order dated 10-7-2008 in RCS No. 128 of 2005 delivered by the 3rd Joint Civil Judge, JD, Buldana by which the suit was decreed for refund of earnest money of Rs. 1 lakh along with interest @ 8% per annum from 10-3-2005 till the decision of the suit and future interest at the rate of 6% per annum from the date of decision in the suit till realization. It appears that the suit relates to land Gat No. 24 situated at mouza Hanwatkhed, Tahsil and District Buldana admeasuring 1.77 HR bounded as under:

(2.) Suit was contested by defendant Gayabai by filing Written Statement (Exh. 24) in which the fact about description of suit property as well as notice issued by Kausalyabai on 10-3-2005 were not disputed. Thus, the trial Court in RCS No. 128 of 2005 was required to consider the maintainability of the suit as well as the fact as to whether plaintiff paid sum of Rs. 1 lakh to defendant as earnest money and whether she was entitled for refund of the said amount along with interest. The trial Court upon evidence led, answered the issues in favour of plaintiff and held that the plaintiff was entitled to rescind the contract and was entitled to get back from defendant Rs. 1 lakh which she had paid to the defendant. The trial Court considered judicial precedent in Videocon Properties Limited v. Dr. Bhalchandra, 2004 3 SCC 711before it answered Issue No. 4 to the effect that plaintiff was entitled to refund of earnest money with interest as awarded. The trial Court decreed suit in favour of plaintiff, as aforesaid.

(3.) Unsuccessful defendant Gayabai had challenged validity and legality of the judgment of the trial Court before the Principal District Judge, Buldana by RCA No. 102 of 2008. Learned 1st Appellate Court confirmed the judgment and decree passed by the trial Court and also took into account subsequent event that by sale deed dated 15th February, 2009 suit land which the plaintiff had agreed to purchase, was sold by the defendant during the pendency of appeal to Pushpa Madhav Bhalerao for a sum of Rs. 1,77,000/-. Learned 1st Appellate Court also found that Gayabai had executed a Will to bequeath Gat Nos. 24 and 25 to her son Dattatraya. It is under these circumstances which were brought to the notice of 1st appellate Judge that it was held that the plaintiff will not be able to seek relief of specific performance of contract. Thus, prayer for refund of earnest money which was decreed by the trial Court was appropriately confirmed in the appeal and learned 1st Appellate Court dismissed the appeal preferred by original defendant as without merit.