- (1.) The defendant/appellant (hereinafter referred to as "the appellant") entered into an agreement of sale with the plaintiff/respondents (hereinafter referred to as "the respondents") on 20. 10. 1994 for the sale of land measuring 15.125 cents owned by her at the rate of Rs. 3,15,0007- per cent for a total consideration of Rs. 44,66,385/ -. The agreement was to be executed within a period of 3 months from the date of the execution of the agreement of sale. A sum of Rs. 10 Lakhs was paid by the respondents as advance/earnest money towards the sale consideration. As the appellant failed to execute the sale deed the respondents on 26.4.1995 filed a suit being o. S. No. 458 of 1995 in the Court of III Additional sub-Judge, Ernakulam for specific performance of the agreement dated 20. 10. 1994. Appellant filed the written statement. The suit was decreed on 24.7.1997 in the following terms: " 1. That the defendants shall cause the plaint schedule property be sold in terms of Ext. A4 sale agreement dated 20. 10. 94 within three months from the plaintiffs depositing the balance sale consideration with the court after causing the property to be measured and satisfying the plaintiff about the measurements and complying the requirements under the Indian Income Tax rules and act obtaining necessary sanction and permission and certificate from the authorities under the Income Tax Act. It is made clear that it shall not be the duty of the plaintiff to inform the defendant about the deposit of the balance sale consideration with the court and it is for the defendant to make enquiries with the office and ascertain as to whether the balance sale consideration was deposited by the plaintiffs with the court. 2. The plaintiff shall deposit the balance sale consideration with the court within three months from the date of this decree. The balance sale consideration shall be paid for the entire area shown in the plaint and if in any case it is found by measuring the property that the actual extent is short of the area shown in the plaint the plaintiff shall get back the amount paid in excess by them by taking into consideration of the difference if any found in the measurements. 3. If defendant fails to cause the registration of the sale deed as aforesaid within the time mentioned above the plaintiffs are at their liberty to move the court in execution for causing the sale deed executed and then it shall be the duty of the defendant to obtain necessary permission and sanction and certificate from the Income Tax authorities for the purpose of the sale in compliance with the requirements of the Indian income tax Act and rules and shall take steps to get the property measured and the actual extent ascertained. 4. The defendant shall pay the cost of the plaintiffs in the suit. "this judgment became final as the appellant did not contest the case by filing further appeal.
(2.) Respondents in terms of the decree deposited the sum of Rs. 34,66,385/- in the court as balance of the sale consideration on 23.10. 1997 within the period of 3 months. The Court directed that the amount deposited be kept in a nationalised Bank and accordingly the amount was deposited in the Indian Bank, mattancherry Branch. Respondents moved IA no. 5187 of 1997 for permission to measure the suit property to ascertain the exact extent of land and a direction to the appellant to obtain "ho objection certificate" from the Department of Income Tax so that sale deed could be executed. On 17.2.1998 respondents moved another application, IA No. 851 of 1998, under section 28 (3) of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") claiming interest @ 12% on Rs. 44,66,385/- (sale consideration) from the date of deposit of the amount till the registration of the sale deed and delivery of possession of the suit property. The sale deed was executed and registered by the appellant on 17.8.1999. It was found that clearance from the Department of Income Tax was not required. Soon after the registration of the sale deed the respondents took possession of the property.
(3.) The trial Court disposed of IA Nos. 5187 of 1997 and 851 of 1998 by a common order dated 15.10. 1999. Both the I. As were allowed. The actual extent of land held by the appellant worked out to be 14.179 cent instead of 15.125 cents mentioned in the agreement of sale. It was held that the respondents were entitled to recover the sum of Rs. 12,77,870/- by way of compensation which included the costs awarded in the suit, excess amount deposited and interest by way of compensation on the sale consideration. Respondents were permitted to recover the amount of rs. 12,77,780/- from the amount lying deposited in the Bank. The break up of the sum of Rs. 12,77,780/- under various heads for payment to the respondents was worked out as under:;