KOGANTI BASAVA SANKARA RAO Vs. RAVI SAMBASIVA RAO

JUDGEMENT

(1.) The appeal is filed by the unsuccessful first defendant in O.S. No.38/82 on the file of Subordinate Judge, Gudivada, aggrieved by the Judgment and Decree dated 8-3-1989. The respondent is the plaintiff in the suit. The plaintiff filed the suit for specific performance of the agreement of sale directing the first defendant to perform his part of the contract by forming a 30 feet width of road on the south of the entire Ac.1-69 cents in R.S. No.293/2 of Gudivada upto the plots sold to A.Lalitamba and connecting the same to the Pamarru road on the west through the sites of B. Rama Mohana Rao and Sastrulu by negotiating with them for forming a road on the south of their sites or alternatively by forming a 30 feet width of road to the west of the schedule property in the other Ac.0-30 cents of the defendants in R.S.No.293/2 connecting the same to the road on the west formed by Rammohana Rao and Sastrulu and from there to Pamarru road, measuring the schedule land and certain in the actual extent arrived at by after measurement and direct the defendants to execute the sale deed for the schedule land with proper terms in favour of the plaintiff and register the same and alternatively for a decree for Rs.42,000/- towards damages with subsequent interest at 12% per annum personally against the first defendant and with a charge against the schedule property. On the respective pleadings of the parties, the evidence of P.W.1 to P.W.3 and D.Ws.1 and 2 had been recorded and Ex.A.1 to Ex.A.10 and Ex.B.1 to Ex.B.3 were marked and on appreciation of evidence, the suit was decreed partly with proportionate costs directing the 1st defendant to pay Rs.8,900/- to the plaintiff along with interest at 12% per annum from 28-2-1982 till the date of decree and at 6% per annum from the date of decree till the date of realisation and the suit against the 1st defendant in other respects is dismissed with proportionate costs and the suit against D.3 to D.9 is dismissed without costs. Hence, the appeal.

(2.) Sri M. V. Durgaprasad, the learned Counsel representing the appellant had taken this Court through the respective pleadings of the parties, the evidence available on record and would point out that having recorded findings that the breach was not committed by the appellant, ordering refund cannot be sustained. The learned Counsel also had pointed out that this is earnest money and when the breach is on the part of the other side only, the same can be forfeited and hence ordering refund is bad. The learned Counsel also pointed out to the respective findings recorded by the learned Judge and placed strong reliance on Chiranjit Singh v. Har Swarup, AIR 1926 PC 1 and Shri Hanuman Cotton Mills and others v. Tata Air Craft Limited, 1969 (3) SCC 522.

(3.) On the contrary, Sri C. Ramachandra Raju, the learned Counsel representing respondent - plaintiff would contend that merely because for want of evidence some findings had been recorded, that doesn't mean that the plaintiff is not entitled to the refund. Even otherwise instead of granting the relief of specific performance the suit for refund also was partly decreed taking the facts and circumstances into consideration. The learned Counsel also would contend that even otherwise on appreciation of evidence, at the best, it can be said to be advance amount only and not earnest money and hence, both in law and equity, the refund ordered by the learned Judge, on appreciation of both oral and documentary evidence, need not be disturbed by the Appellate Court.