KAPADVANJ MUNICIPALITY Vs. OCHHAVLAL DAMODAR PARIKH

JUDGEMENT

(1.) The original plaintiff, Parikh Ochhavlal Damodar, bid for and purchased from the original defendant the Kapadvanj Municipality a certain property which was being used as a school, The plaintiff paid 25 per cent of the purchase price on March 1, 1918, and the balance on July 2, 1918. The sale was subject to the Commissioner's sanction and other legal sanctions. The final sanction was given on July 10, 1919. On March 10, 1919, the plaintiff gave notice to the defendant that he would charge nine per cent, interest on the purchase money paid in by him until a document was passed by the defendant in respect of the property sold and possession given to the plaintiff. On March 8, 1920, the plaintiff executed a Kabulayat without prejudice to his claim for interest agreeing on a certain condition to take possession of the property before the execution of the conveyance. On March 9, 1920, the plaintiff was put in possession of the property by the defendant and on July 18, 1920, the conveyance was executed. On July 1, 1921, the plaintiff filed this suit claiming Rs. 2,835-8-0 for damages for loss of interest and the price of a wooden partition. The Subordinate Judge of Kapadvanj dismissed the plaintiff's suit. In appeal the Assistant Judge of Ahmedabad reversed the judgment of the first Court and passed a decree for the plaintiff for Its. 434-10-8. Both parties have appealed against this judgment. The plaintiff contends that the decree in his favour should be for Rs. 650. The defendant contends that the dismissal of the suit by the first Court was right and should have been confirmed. The facts which have given rise to these cross-appeals are briefly as follows :

(2.) The lower appellate Court has held that the defendant should have given possession to the plaintiff on July 10, 1919, when the Commissioner's sanction was received and as the defendant did not put the plaintiff in possession until March 9, 1920, the plaintiff should be compensated by being allowed interest for the period covered by those dates, at the rate of four per cent, on the purchase money paid in by him. The main question which arises in these appeals is whether the learned Judge's finding is justified in law.

(3.) Primarily the defendant's liability to pay interest on the purchase amount would be governed by the contract of sale. Conditions 6 and 8 of the conditions of sale provide that the bidder whose bid is accepted must forthwith deposit 25 per cent of the purchase price with the auctioneer, and the balance within fifteen days of the auction with the defendant. Condition 9 provides that the sale would be treated as final only after the sanction of the Commissioner and all other necessary sanctions required by law have been obtained. In case of any hitch in obtaining such sanctions the purchase money received would be returned anamat (as deposit). Condition 10 provided that if the sale fell through for want of proper sanction the purchase money would be returned and would carry interest at the Bombay Bank rate after the expiry of six months from the date of the auction.