Tarun Chatterjee and Debendra Kumar Jain, JJ. - (1.) This is to consider an application for amendment of the plaint filed at the instance of the plaintiff, Flora Properties Pvt. Ltd. during the pendency of this appeal.
(2.) Flora Properties Pvt. Ltd. as plaintiff filed a suit in the 2nd Court of the subordinate Judge at Alipore for:- a) specific performance of the agreement for sale ; b) recovery of possession of the suit property as fully described in the schedule of the plaint ; c) permanent injunction and for other incidental reliefs.
(3.) The subject matter of dispute was in respect of a flat being Fiat No 2C on the 2nd floor of Premises No 18 and 18/11, Sarat Bose Road. Calcutta. Ia the written statement of the suit, the defendants however, admitted that the plaintiff paid Rs. 2,50,000/- to them and they offered refund of the said amount in instalments at the rate of Rs. 10,000/- per month to the plaintiff. The Trial Court by the judgment under appeal rejected the prayer of the plaintiff for specific performance of the contract for sale, but held that the plaintiff was entitled to get refund of the aforesaid amount of Rs. 2.50,000/- paid by the plaintiff to the defendant in connection with the agreement for sale and another sum of Rs. 2,50,000/- paid by the plaintiff in connection with the construction agreement with interest at the rate of 18% per annum on the aforesaid amounts with effect from 8th December, 1987 till the date of delivering the judgment. Feeling aggrieved by the judgment and decree of the Trial Court is so far as the decree for refund is concerned, the defendant Nos. 1 to 3 have preferred this appeal in this Court. Be it mentioned herein that the plaintiff Flora Properties Pvt. Ltd. has not filed any appeal against the refusal by the Trial Court to grant decree to it so far as the prayer of the plaintiff for specific performance of the agreement for sale is concerned. During the pendency of the appeal, a question arose whether the Trial Court was justified is granting a decree for refund with interest to the plaintiff without such prayer having been made in the plaint in view of the specific provision to this effect in the Specific Relief Act. By filing the present application for amendment of the plaint, the plaintiff/respondent has sought for insertion of the following facts and prayers in the plaint:- (a) After Paragraph 12 of the plaint the following paragraph may be added. 12(a) The aforesaid two payments to the tune of Rs. 2,50,000/- (Rupees two lakhs fifty thousand only) each under the said two agreements dated 7.12.87 were made by way of account payee cheque being No. 334051 dated 7.12.87 and 334052 dated 7.12 87 drawn on Canara Bank. 12(b) The Land Sale Agreement as also Construction Agreement provide that the plaintiff would be entitled to interest @18% per annum in case the defendants failed to perform their part in terms of the aforesaid agreement. (b) After Paragraph 21 the following paragraph may be added. 21(a) The plaintiff is alternatively entitled to refund of entire amount so deposited to defendant No. l Company to the tune of Rs. 5,00,000/- ( Rupees five lakhs only) together with accrued interest at the rate of 18% per annum from the date of deposit till the date of payment. 21(b) The defendant Nos. 1,2 & 3 arc guilty of breach of contract as embodied in the aforesaid two agreements. The plaintiff is also entitled to a decree for compensation against defendant Nos. 1,2 & 3 for breach of contract by the said defendants and also to meet the Justice of the case. (c) By adding following the reliefs after the relief (c) of the plaint. (cc) Refund of the entire amount paid to the defendants to the tune of Rs. 5,00,000/-in terms of the Land Sale Agreement and the Construction Agreement. (ccc) Compensation on account of breach of contract by the defendant Nos. 1,2 & 3. (cccc) Interest @18% per annum.;