THE COMMISSIONER OF INCOME TAX vs. M/S. DODDANAVAR BROTHERS (OM)

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 16TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE P.B.BAJANTHRI AND THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY RFA No.4072/2013 (SP) C/W RFA CROB.100002/2014

IN RFA No.4072/2013

BETWEEN:

SHRI.AMIR HAMZA RASULSAHEB ISMAIL MAGDUM, AGE: 54 YEARS, OCC: AGRICULTURE, R/O KUCACHI-591 311, TALUKA & DIST: BELGAUM REP.BY HIS GENERAL POWER OF ATTORNEY HOLDER\SHRI.MAKTUMSAHEB RASULSAHEB ISMAIL MAGDUM, AGE: 60 YEARS, OCC: AGRICULTURE, R/O KUCACHI-591 311, TALUKA & DIST: BELGAUM ... APPELLANT

(BY SRI.SHREEVASTA HEGDE, ADV.)

AND:

AGE: 58 YEARS, OCC: AGRICULTURE & BUSINESS,

R/O 125 SAMBHAJI ROAD, KHASBAG, BELGAUM-590 004.

2 2. SMT.LEELADEVI PREMRAJ CHANDAK,

AGE: 75 YEARS, OCC: HOUSEHOLD,

R/O MIRA MAHAL BUILDING, IIND CROSS,

ADARSHA NAGAR, M.VADAGAON, BELAGAVI-590 005.

AGE: 55 YEARS, OCC: BUSINESS,

R/O MIRA MAHAL BUILDING, IIND CROSS,

ADARSHA NAGAR, M.VADAGAON, BELAGAVI-590 005.

AGE: 53 YEARS, OCC: BUSINESS,

R/O MIRA MAHAL BUILDING, IIND CROSS,

ADARSHA NAGAR, M.VADAGAON, BELAGAVI-590 005.

... RESPONDENTS

(BY SRI.VITTHAL S.TELI, ADV.)

THIS APPEAL IS FILED UNDER ORDER XLI RULE 1 R/W SECTION 96 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 25.03.2013 PASSED IN O.S.NO.288/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE ,KHANAPUR, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.

IN RFA CROB.No.100002/2014

BETWEEN:

SMT.LAXMIBAI W/O BABURAO JADHAV, AGE: 60 YEARS, OCC: AGRICULTURE & BUSINESS, R/O 125, SAMBHAJI ROAD, KHASBAG, BELGAUM, REP.BY HIS GPA HOLDER SRI.VISHAWANATH S/O BABURAO JADHAV, AGE: 39 YEARS, OCC: BUSINESS, R/O 125, SAMBHAJI ROAD, KHASBAG, BELGAUM.-590004.

3 ... CROSS OBJECTOR (BY SRI.VITTHAL S.TELI, ADV.)

AND:

SRI.AMIR HAMZA RASULSAHEB ISMAIL MAGDUM, AGE: 55 YEARS, OCC: AGRICULTURE, R/O KUDACHI, TQ.RAIBAG, DIST: BELGAUM, REP.BY HIS GPA HOLDER SRI.MUKTUMSAHEB S/O RASULSAHEB ISMAIL MAGDUM, AGE: 61 YEARS, OCC: AGRICULTURE, R/O KUDACHI, TQ.RAIBAG, DIST: BELGAUM-591311.

... RESPONDENT

(BY SRI.SHREEVASTA HEGDE, ADV.)

THIS RFA CROB IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.03.2013 IN O.S.NO.288/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AT KHANAPUR INSOFAR AS DIRECTING THE DEFENDANT TO REFUND Rs.8,00,000/- WITH SIMPLE INTEREST AT 15% P.A. FROM THE DATE OF JUDGMENT AND ETC.

THIS APPEAL AND RFA CROB HAVING HEARD AND RESERVED ON 09.12.2019 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY NATARAJ RANGASWAMY J., DELIVERED THE FOLLOWING:

4 JUDGMENT

The appeal in RFA No.4072/2013 is filed challenging the Judgment and Decree dated 25.03.2013 passed by the Senior Civil Judge, Khanapur in O.S.No.288/2008. RFA Crob.No.100002/2014 is filed by the defendant in the said suit challenging the findings of the Senior Civil Judge, Khanapur in terms of the Judgment and decree dated 25.03.2013 passed in O.S.No.288/2008. 2. The parties are referred to as they were arrayed before the trial Court. RFA No.4072/2013 is filed by the plaintiff while RFA Crob.No.100002/2014 is filed by the defendant in the suit. 3. The facts as stated by the plaintiff in O.S.No.288/2008 are that, the defendant No.1 had executed an agreement dated 03.10.2005 at Belagavi, agreeing to sell the suit property for a total sale consideration of Rs.20,00,000/-. The defendant received Rs.8,00,000/- in terms of a cheque bearing No.392536 drawn at Syndicate

5 Bank, Belagavi. The balance sale consideration was to be paid within three months from the date of the agreement and against the defendant executing a deed of absolute sale conveying the suit property to the plaintiff. The defendant was required to clear the encumbrances of State Bank of India and Malaprabha Grameena Bank and furnish “No Due certificates”. The defendant had also undertaken to secure a right of way through Sy.No.13 so as to reach the suit property. It is stated that the defendant failed to perform her part of the contract within the stipulated time. The defendant got a notice issued on 20.08.2007 and required the plaintiff to pay the balance sale consideration within 15 days from the date of receipt of notice. This notice was replied by plaintiff on 08.09.2007 requiring the defendant to complete her part of contract and called upon the defendant to comply with the conditions at Sl.Nos.4 to 6 of the agreement. It is stated that the defendant got another notice dated 13.09.2007 informing that she would not be in a position

6 to comply with the condition of obtaining a right of passage through Sy.No.13 and offered that the plaintiff may purchase the property on ‘as is and where is’ basis or else to receive back the earnest money of Rs.8,00,000/-. The plaintiff thereafter informed the defendant that he is ready to purchase the land on ‘as is where is’ basis which however was not responded to by the defendant. The plaintiff thereafter filed a suit for specific performance of agreement dated 03.10.2005 and in the alternative sought damages of Rs.20,00,000/- along with future interest. 4. A written statement is filed by the defendant (though wrongly shown as written statement of defendant No.3) wherein she has admitted the execution of the agreement and exchange of notices. She contended that the recitals in the agreement of sale were typed on the instructions of the plaintiff and upon being called to sign the document, she had signed it. She did not know the contents of the agreement. It is stated that the plaintiff

7 had assured that recitals of the agreement were incorporated formally and that defendant should not worry about it. Further, she claimed that after expiry of three months, the plaintiff did not come forward for conclusion of the sale but started insisting the defendant to comply the conditions contained in the agreement. She informed the plaintiff that she was unable to obtain the passage through Sy.No.13 as per Clause No.5 and offered to sell the property on “as is where is basis” within 8 days, but the plaintiff never responded. Therefore, she contended that the plaintiff was never interested in getting the sale deed executed in his favour. She also contended that the suit was filed without complying the mandatory provisions of Rule 16 of the Karnataka Civil Rules of Practice and thus, sought for dismissal of the suit. 5. The trial Court framed following issues. i) Whether the plaintiff proves the agreement of sale dated 03.10.2005 with its contents?

8 ii) Whether the plaintiff proves that he is/was ready and willing to perform his part of contract? iii) Whether the plaintiff proves the cause of action? iv) Whether the defendant proves that suit is not tenable as pleaded in para No.11 of W.S.? v) Whether the defendant proves that time was essence of contract? vi) Whether the plaintiff proves that he is entitled for the relief of specific performance of contract? vii) Whether the plaintiff is entitled for alternative relief of award of Rs.20,00,000/- from the defendant with future interest? viii) To what order or decree? 6. Before the trial Court, the Power of Attorney holder of plaintiff was examined as P.W.1 and he marked Exs.P1 to P12. The son of the defendant was examined as D.W.1 and two other witnesses were examined as D.Ws.2 and 3 and they marked Exs.D1 and D2. 7. The trial Court after verifying the pleadings, evidence on record and exercising the discretion vested in

9 it, felt it inappropriate to grant the relief of specific performance but instead granted the decree of refund of earnest money along with interest at 15% p.a. from the date of decree till payment. 8. The plaintiff has filed this appeal challenging the Judgment and decree of the trial Court refusing the relief of specific performance while the defendant has filed Cross objection claiming that the suit was defective and challenging the Judgment and Decree of the trial Court ordering refund of the earnest money along with interest. 9. Heard the learned counsel for the parties and perused the pleadings, oral and documentary evidence on record as well as the judgment and decree of the trial Court. 10. The following points arise for our consideration: i) Whether the plaintiff was ready and willing to perform his part of contract?

10 ii) Whether the plaintiff has proved that the defendant was in breach? iii) Whether the plaintiff has proved the loss of Rs.20,00,000/- that he has claimed under the agreement as compensation for breach of agreement? iv) Whether the defendant proves that she was entitled to forfeit the earnest money? v) Whether the defendant proves that suit was not properly filed and is barred under Rule 16 of the Karnataka Civil Rules of Practice? vi) Whether the judgment and decree of the trial Court calls for interference? REASONS 11. A perusal of the agreement dated 03.10.2005 discloses that it was an agreement of sale of agricultural land bearing Sy.No.56 of Katagali village, Khanapur Taluk, Belagavi District measuring 16 acres 34 guntas of which defendant was the owner. There is no dispute regarding execution of the agreement of sale dated 03.10.2005. The

11 agreement further discloses that the plaintiff was required to pay balance sale consideration of Rs.12,00,000/- within three months from the date of the agreement. It also discloses compliance of three conditions namely, a) That the defendant should obtain an easmentary right from the owner of the land bearing Sy.No.13 so as to reach the suit property. b) That the defendant should obtain a clearance certificates from State Bank of India and Malaprabha Grameena Bank. c) That the defendant shall get the suit property measured to ascertain the exact area in possession of the defendant.

12 12. It is seen that the plaintiff did not take any steps and did not pay or offer to pay the balance sale consideration within the time stipulated. On the contrary, defendant caused a notice dated 20.08.2007 (Ex.P3) informing the plaintiff that she had obtained No Due Certificates from State Bank of India and Malaprabha Grameena Bank and she further informed the plaintiff that she was using the part of Sy.No.13 as a passage to approach the suit property for more than 30 years. Thus, by this notice she stated that, she was in dire need of money and therefore, called upon the plaintiff to pay the balance sale consideration of Rs.12,00,000/- and get the sale deed executed within 15 days. The plaintiff replied to this notice on 08.09.2007 (Ex.P4) insisting the defendant that she had to obtain the agreement from the owner of Sy.No.13 for right of passage to reach the suit property. The plaintiff claimed “unless the conditions mentioned in the agreement are fulfilled, you cannot claim specific performance of the contract and unless those conditions

13 are fulfilled my client will not get good title to the property under agreement and cannot properly enjoy the same”. 13. In reply, the defendant issued a notice dated 13.09.2007 (Ex.P5) and expressed difficulty to secure any document regarding the right of way through Sy.No.13. The defendant therefore, gave an option to purchase the suit property without insisting upon an agreement for right of way through Sy.No.13. The defendant kept this offer open for a period of 8 days from 13.09.2007. Further, in terms of another notice dated 06.10.2007 (Ex.P6) the defendant suggested that plaintiff was not interested to purchase the suit property and thus offered to repay Rs.8,00,000/- to the plaintiff. Long thereafter, i.e., on 07.03.2008, the plaintiff woke up from slumber and issued a notice (Ex.P7) offering to purchase the suit property on “as is where is” basis. 14. One fact therefore is clear that the agreement in question required the performance of an act namely

14 securing a right of way through Sy.No.13 which was not within the control of the defendant. Once the defendant issued a notice informing the plaintiff that the condition cannot be fulfilled and offered to complete the transaction sans the condition, within 8 days, it was for the plaintiff to accept the same within the time allowed. Even otherwise, the conduct of the plaintiff shows in clear terms that he was not eager and willing to perform his part of the contract. The agreement stipulated three months time to pay the balance sale consideration and obtain a deed of sale. The pre-conditions attached to the completion of the sale transaction were: a) Obtaining a No due certificate. b) Getting the land surveyed for ascertaining the exact measurement. c) Obtaining an agreement from the owner of Sy.No.13 for right of way.

15 15. Of these conditions, (i) was complied, (ii) could have been complied by the plaintiff without any effort, and (iii) could also be accomplished even after the sale deed was executed but yet the plaintiff slept over resulting in a stalemate. 16. The plaintiff has therefore, miserably failed in establishing his readiness in completing his part of the contract within the time stipulated. The plaintiff did not enter the witness box, but instead deputed his Power of Attorney to depose about the facts of the case. In the course of his cross-examination, he has admitted that defendant was not the owner of Sy.No.13 and therefore was not entitled to procure a right of way through it, to reach suit property. P.W.1 also stated that, he was not aware about the financial condition of the defendant which compelled her to sell the suit property. On the other hand, he deposed that defendant had to clear the loan and also meet the expenses of the marriage of her daughter.

16 He also admitted that the remaining consideration had to be paid within three months. He further stated that he did not take any steps to measure the land. He also stated that he did not furnish any document in proof of the fact that the plaintiff possessed Rs.12,00,000/- within three months from the date of the agreement. He also admitted that there was no stipulation in the agreement that condition Nos.4, 5 and 6 should be complied within a particular time. He also admitted that the value of the suit property during 2011 was rupees 60-80 lakhs. Curiously, he stated that after three months, the defendant offered the plaintiff further time to pay the balance sale consideration and that the plaintiff failed to pay the same. The evidence of P.W.1 go to show that the plaintiff was never serious in pursuing the defendant to complete the transaction in question. Even otherwise, subsequent to execution of Ex.P2, the plaintiff did not make any serious and genuine attempts to complete the sale transaction.

17 17. The son of the defendant was examined as D.W.1 and he reiterated the contents of his written statement. In his cross-examination, it is suggested that: “¤.¦.2 J PÀgÁj£ÀAvÉ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢ ¸ÀªÉð £ÀA.13 gÀ ªÀiÁ°ÃPÀjAzÀ zÁªÁ D¹Û ¸ÀªÉð £ÀA§gÀPÉÌ ºÉÆÃUÀĪÀ zÁjAiÀÄ §UÉÎ ¨ÉÃgÉAiÉÄà PÀgÁgÀÄ ªÀiÁqÀ¨ÉÃPÉAzÀÄ ±ÀgÀvÀÄÛ EvÀÄÛ JAzÀgÉ ¸Àj. zÁªÁ ¸ÀªÉð £ÀA 56 PÉÌ ºÉÆÃUÀ®Ä ¸ÀzÀj ¸ÀªÉð £ÀA 13 gÀ zÁjAiÀÄ ºÉÆgÀvÁV PÀgÁgÀ°è £ÉÆÃAzÁªÀuÉ ªÀiÁqÀ®Ä ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ £ÀqÀÄªÉ ¨ÉÃgÉ AiÀiÁªÀÅzÉà vÉÆAzÀgÉ EgÀ°®è JAzÀgÉ ¸Àj. zÁªÁ D¹ÛUÉ ºÉÆÃUÀ®Ä ¸ÀªÉð £ÀA 13 gÀ ªÀÄÆ®PÀ EgÀĪÀ zÁj §UÉÎ vÉÆAzÀgÉ EzÀÝgÀÆ FUÀ®Æ ¸ÀºÀ ªÁ¢ zÁªÁ D¹ÛAiÀÄ £ÉÆÃAzÀt ªÀiÁrPÉƼÀî®Ä vÀAiÀiÁgÀÄ EzÁÝgÉ JAzÀgÉ ¸Àj C®è”. 18. D.W.2 is the owner of the land adjoining the suit property and he deposed that: “F zÁªÉAiÀÄ°è £À£ÀUÉ ¸ÀªÀÄ£ÀÄì §A¢gÀÄvÀÛzÉ. ¥ÀæwªÁ¢AiÀÄ ªÀÄUÀ ºÉýzÀAvÉ £Á£ÀÄ ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸Àj C®è. ¸ÀªÀÄ£ÀÄì ¥ÀqÉzÀÄPÉÆAqÀ §½PÀ £Á£ÀÄ ¥ÀæwªÁ¢AiÀÄ ªÀÄUÀ£À£ÀÄß F zÁªÉAiÀÄ §UÉÎ £ÁåAiÀiÁ®AiÀÄzÀ°è PÉýzÉÝãÉ. F zÁªÉAiÀÄ°è £Á£ÀÄ zÁªÁ D¹ÛUÉ ºÉÆÃUÀĪÀ gÀ¸ÉÛAiÀÄ §UÉÎ ¸ÁQë ºÉüÀ®Ä §A¢zÉÝãÉ. £À£Àß D¹Û¬ÄAzÀ zÁªÁ D¹ÛUÉ ºÉÆÃUÀ®Ä zÁjAiÀÄ£ÀÄß £Á£ÀÄ ©lÄÖ PÉÆnÖgÀÄvÉÛãÉ. vÀPÀgÁgÀÄ E£ÀÆß

18 ªÀÄÄV¢®è DzÀgÉ ºÀwÛgÀzÀ d«Ää£À ªÀiÁ°PÀjUÉ vÉÆAzÀgÉ DUÀĪÀÅzÀ£ÀÄß vÀ¦à¸ÀĪÀÅzÀPÁÌV £Á£ÀÄ gÀ¸ÉÛAiÀÄ£ÀÄß £À£Àß d«Ää£À°è ©nÖgÀÄvÉÛãÉ.” 19. D.W.3 is another witness who along with defendant and others had filed O.S.No.57/2006 against Vittal K.Narvekar claiming right of easement through Sy.No.13 of Katagali village. This suit is stated to be dismissed for default. 20. The trial Court looked into the oral and documentary evidence and has dismissed the suit of the plaintiff for specific performance. But since the plaintiff had sought for an alternative relief to award Rs.20,00,000/- (without disclosing whether it was damages or refund of earnest money), the trial Court passed the impugned Judgment and Decree directing the defendant to repay a sum of Rs.8,00,000/- along with interest at 15% p.a. from the date of decree till realization. 21. The facts as stated would demonstrate beyond doubt that though Ex.P2 was executed between the

19 parties, the purpose of sale of the suit property as is evident from Ex.P2 was to use the sale consideration for the business that was started by the husband of the defendant which was continued by her son and also to meet the expenses of the marriage of the daughter of the defendant. The plaintiff having obtained an agreement of sale of the suit property has virtually denied the benefit of the balance sale consideration to the defendant. The defendant has therefore refused to perform her part of contract within the time stipulated. Even after the time stipulated in the contract had expired, the defendant kept the offer alive but yet the plaintiff did not take advantage of this offer and did not complete the sale transaction. 22. Before the trial Court, the plaintiff did not produce any material proof to show that he had requisite funds to complete his part of the contract. Even as on 07.03.2008 when the plaintiff issued Ex.P7 offering to purchase the suit property on ‘as is where is’ basis, except

20 a stray statement that he was ready and willing to perform his part of contract, the plaintiff had not produced any convincing material to establish his willingness to perform his part of the contract. The Apex Court in the case of Ritu Saxena Vs J.S.Grover and Another reported in (2019) 9 Supreme Court Cases 132 has held that, “self serving statements without any proof of financial resources cannot be relied upon to return a finding that the appellant was ready and willing to perform her part of the contract. The appellant has not produced any income tax record or bank statement in proof of her plea of financial capacity so as to be ready and willing to perform the contract”. 23. We are therefore of the view that the plaintiff was not ready and willing to perform his part of the contract within the time stipulated or within the extended time permitted by the defendant. The plaintiff is therefore

21 not entitled to the discretionary relief of specific performance. 24. In so far as the contention of the plaintiff that defendant was in breach of the agreement (Ex.P2) and therefore the defendant will have to compensate for such breach, a perusal of the plaint does not disclose how the agreement was breached by the defendant. The defendant has informed the plaintiff by her notice dated 20.08.2007 that she obtained the No Due Certificates from State Bank of India and Malaprabha Grameena Bank and called upon the plaintiff to pay the balance sale consideration and obtain a deed of sale. This was followed by another notice dated 13.09.2007 (Ex.P5) whereby it was categorically stated that she had lost hope in obtaining any document from the owner of Sy.No.13 to permit right of way through Sy.No.13 of Katagali village. Therefore, the defendant offered to refund the advance amount of Rs.8,00,000/- and alternatively offered to convey the suit property on ‘as

22 is where is’ basis within 8 days from the date of receipt of notice. Thus, Ex.P2 which was based on a contingent event, namely, that the defendant should obtain a right of way through Sy.No.13, became unenforceable after the suit filed by the defendant in O.S.No.57/2006 for easmentary right was dismissed for default. It was at that point in time, the plaintiff could have arrested further loss if any by either accepting the refund of the earnest money or obtaining a deed of sale of suit property on ‘as is where is’ basis. However, the plaintiff choose to dilly dally the issue by keeping the defendant on tenterhooks up to 07.03.2008. This suit was filed on 11.09.2008 for specific performance. A reading of the plaint does not disclose how the defendant breached the agreement. There is no specific prayer claiming damages for the alleged breach of contract. There is neither pleading nor proof for the loss sustained by the plaintiff. Section 73 of the Indian Contract Act deals with the cases of compensation for breach of contract. The same is extracted here below:

23 “Section 73.Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.— When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.” 25. In view of the above and since the plaintiff has not taken any steps to complete the contract which he could have, the defendant cannot be held to have committed the breach of the contract. In the absence of

24 any proof of damages, the plaintiff is not entitled to any relief sought for. 26. After having considered the pleadings, oral and documentary evidence as well as judgment and decree of the trial Court, we are of the considered and firm view that the trial Court has properly appreciated the facts and circumstances and has rightfully dismissed the suit for specific performance. 27. However, the trial Court while ordering for refund of the advance amount, has directed the defendant to pay interest at the rate of 15% p.a. from the date of the decree. It is to be noted that the plaintiff had specifically sought for enforcement of the agreement and in the alternative refund of the earnest money which is permitted under Section 22 of the Specific Relief Act, 1963. Therefore, there was a deemed demand by the plaintiff to refund the earnest money. Section 34 of the Code of Civil

25 Procedure, 1908 provides for grant of interest, which is extracted here below: Section 34. Interest.(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent. per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.” 28. A reading of the above provisions makes it clear that the trial Court could not have granted interest

26 more than 6% from the date of the suit till realization rather than 15% from the date of decree. Therefore, we deem it appropriate to modify the judgment and decree and hold that the plaintiff is entitled to refund of a sum of Rs.8,00,000/- along with interest at the rate of 6% p.a. from the date of suit till realization. 29. Insofar as cross objection is concerned, the contention of the defendant is that the plaint was presented not by the plaintiff himself but through his Power of Attorney and that the plaintiff had deliberately not filed the Power of Attorney when the suit was presented. It is in this regard, the defendant pressed into service Rule 16 of the Karnataka Civil Rules of Practice. The defendant also brought to our notice the provisions of Order IV of Code of Civil Procedure to contend that the plaint was not properly presented. It is to be noted that the Power of Attorney executed by the plaintiff was dated 26.08.2005 and the plaint was presented much later.

27 There was no impediment for the plaintiff to have furnished Power of Attorney along with the plaint. However, the plaintiff has produced Power of Attorney during the course of the proceedings and therefore we do not feel it appropriate to reject the plaint on this specious ground as Code of Civil Procedure is a procedural law and cannot override the substantive right of the plaintiff to seek specific enforcement of the agreement admittedly entered into between the plaintiff and defendant. The defendant also claimed that the trial Court was not justified in ordering refund when the defendant was entitled to forfeit it. Section 64 of the Contract Act permits that in a voidable contract, the person has received any benefit shall restore such benefit to the person from whom it was received. In the absence of any right to seek forfeiture and in the absence of any proof of loss, the defendant cannot claim the right to forfeit the advance amount received.

28 30. In view of the above, the following order is passed: 31. The judgment and decree of the trial Court rejecting the relief of specific performance is therefore confirmed. However, the decree granting refund of earnest money of Rs.8,00,000/- along with interest at 15% p.a. from the date of decree till realization is modified and it is hereby ordered and decreed that the plaintiff shall be entitled to recover a sum of Rs.8,00,000/- along with interest at 6% p.a. from the date of suit till realization from the defendant. Cross objection filed in RFA Crob.100002/2014 is dismissed as devoid of merit. No order as to costs.

Sd/- JUDGE

Sd/- JUDGE MBS/-