RAM RAKHA Vs. SUDESH KUMARI

JUDGEMENT

(1.) THIS order shall dispose of Regular Second Appeal Nos. 4733 of 2001 and 320 of 2002 both arising out of suit for specific performance of agreement dated 10.11.1990. RSA No. 4733 of 2001 is filed by the defendant whereas RSA No. 320 of 2002 is by the plaintiff.

(2.) THE plaintiff filed a suit for specific performance of agreement dated 10.11.1990 alleging therein that the defendant agreed to sell the house for a total consideration of Rs. 1,00,000/- and on the said date received a sum of Rs. 90,000/- as earnest money. The sale deed was to be executed upto 15.10.1993 after receipt of balance consideration. Since the defendant failed to execute the sale deed, the plaintiff sought a decree for specific performance of the agreement. The defendant contested the suit and denied having executed and agreement to sell but alleged that the plaintiff in connivance with some other persons got blank papers signed from him.

(3.) LEARNED counsel for the defendant has argued that in fact there was no intention of the parties to sell the house but it was only an agreement to secure the loan of Rs. 90,000/- and, therefore, it is only a transaction of loan and in terms of Section 34 of Code of Civil Procedure the civil Court could not grant interest at the rate exceeding 6% per annum. However, on the other hand, learned counsel for the plaintiff argued that the learned trial court has exercised its discretion in granting of interest at the rate of 12% per annum being the current market rate. The learned first Appellate Court has not given any reason to interfere in the discretion exercised by the learned trial Court. It has further been found by the learned courts below that the amount of Rs. 90,000/- was advanced to the defendant as the defendant failed to pay the amount of committee. It has been found that the defendant wants to wriggle out as neither he wants to pay the amount agreed nor he intends to sell the house.