Hemant Gupta, J. - (1.) Civil Appeal No. 3415 of 2019 is by the Plaintiff aggrieved against the judgment and order dated 17.02.2016 passed by the High Court of Karnataka at Bengaluru declining relief for specific performance of the agreement of sale of the schedule property but granting a decree for recovery of Rs. 7,01,000/- along with interest at the rate of 12 per cent per annum from the date of payment till date of realisation. Civil Appeal No. 3416 of 2019 is by the Defendant aggrieved against the decree for payment of Rs. 6,75,000/- by the same judgment.
(2.) Hereinafter for facility of reference, the parties will be described as per their status before the trial court. The Defendant is the owner of non-agricultural immovable property situated in Kadri Village, Kadri Ward, Mangalore Taluk, within the Mangalore City Corporation and comprised in Rs. No. 72-11, bearing T.S. No. 1578-11G measuring 7.25 cents or 0.0725 acre with residential buildings bearing Door No. 3-3-2429, 3-30-2430, shop premises bearing Door No. 3-30-2431, which is more particularly described in the schedule to the plaint and hereinafter referred to as "the schedule property".
(3.) The case of the Plaintiff is that on 21.07.2006, the Defendant entered into a written agreement with him for sale of the schedule property for a total sale consideration of Rs. 30,00,000/-. A sum of Rs. 26,000/- was paid as earnest money. At the time of agreement, the Defendant has a civil dispute (OS No. 196/2005) pending against him filed by his brother. The condition in the agreement was that the Defendant will settle the pending dispute within a period of six months. But if the dispute is not resolved within six months, the time for the execution of the sale deed shall be extended by such time as mutually to be agreed upon by the parties. Some of the terms of the agreement read as under: "1. That the 2nd PARTY PURCHASER has agreed to pay a total sale consideration of Rs.30, 00, 000/- (Rupees Thirty Lakhs Only) towards the agreed sale of schedule property by the 1st PARTY VENDOR to the 2nd PARTY PURCHASER and out of above sale consideration, the 2nd PARTY PURCHASER has paid a sum of Rs. 26, 000/- (Rupees Twenty-Six Thousand Only) to the 1st PARTY VENDOR by means of cheque dated 21.07-2006 bearing No. 918333 drawn on Syndicate Bank, Fr. Muller's Charitable Institution Branch, Mangalore, by way of advance sale consideration, the receipt of which the 1st PARTY VENDOR hereby acknowledges. The balance sale consideration of Rs. 29,74,000/- (Rupees Twenty Nine Lakhs Seventy Four Thousand only) is agreed to be paid at the time of execution and registration of the intended Sale Deed. *** *** *** 5. The 1st PARTY VENDOR shall execute the Sale Deed within 6 months (Six Months) from the date of execution of this Agreement, which however can be altered only by mutual consent in writing and signed by both the parties. 6. In case, the 1st PARTY VENDOR fails to perform his part of this agreement, he shall refund the entire advance sale consideration of Rs. 26,000/- (Rupees Twenty Six Thousand Only) along with interest at 12% per annum and in addition to that he shall also pay a further sum of Rs. 5,000/- (Rupees Five Thousand Only) by way of pre- estimated liquidated damages and accordingly in such event, the 2nd PARTY PURCHASER shall be entitled to recover the said amounts from the 1st PARTY VENDOR, including the interest and cost if any incurred, for recovery of the same.";