- (1.) APPELLANT , who along with proforma respondents No.1 and 2 was defendant before the trial Court, has filed the instant appeal against the judgment and decree of the lower appellate Court vide which decree of the trial Court has been modified by ordering relief of refund of the earnest money along with interest @ 12% per annum from the date of execution of the agreement to sell in question till passing of the decree and @ 6% per annum from the date of decree till realization of the decretal amount, instead of the relief of specific performance of the agreement to sell in question.
(2.) WHILE modifying the decree of the trial Court, the lower appellate Court, taking into consideration various factors including that there was a money transaction between the parties, held that the intention of the parties was not to sell/purchase the land in dispute by way of the agreement to sell in question. However, keeping in view the fact that execution of the agreement to sell in question was duly proved, the lower appellate Court held that plaintiff -respondent No.1 was entitled to a decree for recovery of Rs. 3,70,000 as refund of the earnest money along with interest @ 12% per annum from the date of execution of the agreement to sell in question till the date of passing of the decree and @ 6% per annum from the date of decree till actual realization of the decretal amount.
(3.) IT is a matter of record that RSA No.290 of 2010 filed by the plaintiff -respondent against the aforesaid judgment and decree of the lower appellate Court has been dismissed by this Court vide judgment dated 30.03.2010. While upholding the judgment and decree of the lower appellate Court on the appeal filed on behalf of the plaintiff -respondent, who was aggrieved from the modification of the judgment and decree of the trial Court whereby his suit for specific performance of the agreement to sell in question was decreed, this Court observed as under: "Even if one of the reasons mentioned by the learned Lower Appellate Court is not entirely sound, yet it would not detract from the conclusions drawn from the other facts on record. In these circumstances, I find no reason to interfere with the judgment of the learned Lower Consequently, this appeal is dismissed. No costs." The defendant -appellant filed the instant appeal submitting that the lower appellate Court, while modifying the judgment and decree of the trial Court, has directed refund of a sum of Rs. 3,70,000, which was received by way of earnest money, along with interest as noticed above and the same is against the relief claimed by the plaintiff -respondent as by way of alternative relief the plaintiff had only prayed for recovery of Rs. 3,70,000 as refund of the earnest money and Rs. 73,000 as compensation and damages for breach of terms of the agreement and had accordingly affixed the Court fee on the said amount and in view of the aforesaid fact, the lower appellate Court erred in granting interest @12% per annum on the refund of earnest money from the date of execution of the agreement till passing of the decree and future interest, as the same was not the prayer of the plaintiff -respondent.;