THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO : 653 of 1999 Dated: 18.11.2010 Between: Shaik Abdul Salam Saheb ..Appellant And 1. Seela Guravappa and another .. Respondents. THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO : 653 of 1999 JUDGMENT: This second appeal is filed by the defendant-appellant against the judgment and decree passed in A.S.No.25 of 1997 on 20.4.1999 by the learned District Judge, Cuddapah modifying the judgment and decree passed by the learned Subordinate Judge, Cuddapah. The appellant is the sole defendant and respondents-1 to 4 are the plaintiffs in the suit. During the pendency of the present appeal, since no batta was paid for respondents-2 and 3, the second appeal against them was dismissed. Therefore, the appeal is being proceeded against respondents-1 and 4. Late S.G. Subbanna is the father of respondents-plaintiffs-1 to 3. He purchased the property belonging to the appellant under an agreement of sale, dated 7.3.1984 and subsequently, the appellant executed the sale deed dated 3.5.1984 in favour of the said Subbanna and another sale deed dated 4.5.1984 in favour of 4th plaintiff after receiving the sale consideration of Rs.60,000/- thereunder. When the said Subbanna, father of plaintiffs-1 to 3 tried to make constructions in the suit site, Sanapureddy people objected them from entering the land on the ground that they have filed suit against the appellant herein and others in O.S.No.35 of 1985 on the file of the Court of the learned Subordinate Judge, Cuddapah. When the said litigation was pending, the plaintiffs-respondents filed the present suit seeking recovery of Rs.60,000/-being the amount received under the two sale deeds dated 3.5.1984 and 4.5.1984 executed in pursuance of the agreement of sale dated 7.3.1984, with costs and future interest. The defendant-appellant having denied the execution of any agreement of sale, admitted the execution of the registered sale deeds referred to above and receipt of consideration as assigned in the said two sale deeds. It is to be noted that the sale consideration mentioned in the agreement was Rs.60,000/- whereas the sale consideration mentioned in the subsequent sale deeds was Rs.40,000/-. The trial Court on a consideration of the evidence on record, found that Ex.A1, agreement of sale was proved by the plaintiffs- respondents and consequently, decreed the suit for Rs.60,000/- as mentioned in the agreement of sale. However, no interest was granted by the trial Court. Questioning the said decree and judgment, the defendant-appellant filed an appeal in A.S.No.25 of 1997 on the file of the learned District Judge, Cuddapah and the plaintiffs-respondents filed cross objections to the extent of disallowing of interest. The lower Appellate Court having concurred with the judgment and decree of the trial Court to the extent of refund of Rs.60,000/-, granted interest on the amount of Rs.40,000/- only at 6% per annum on the ground that the sale consideration mentioned in the sale deeds was only Rs.40,000/- and allowed the cross objections partly to that extent. Aggrieved thereby, the present appeal is preferred by the defendant-appellant. By an order of this Court dated 22.1.2001, the second appeal was admitted on the substantial question of law as mentioned below: “Only on cancellation of a document (i.e., sale dated 3.5.1984) the Court may require any benefit received under the instrument to be restored or compensation be made as per Section 33(2) of the Specific Relief Act. 2. Once parties to the contract agree to substitute a new contract for it or alterate, the original contract need not be performed. Whether the plaintiff can claim refund of the sale consideration on the ground that the vendor is not having marketable title when agreement of sale converted into a sale deed, wherein the sale consideration was shown less than that of the sale consideration in the agreement of sale.” Sri Surender Rao, the learned Counsel for the defendant- appellant contends that the relief so far as refund of the sale consideration, is concerned, could not have been granted by the Court below as the plaintiffs-respondents had filed the present suit merely on initiation of another litigation by a third party questioning the title of the defendant-appellant. It is also contended that the Courts below could not have decreed the amount as mentioned in the agreement when admittedly, the sale deeds supercede the agreement of sale and at the best, the sale consideration as mentioned in the sale deeds alone can be directed to be refunded. Sri S.V. Bhat, the learned Counsel for the plaintiffs-respondents on the contrary pointed out the conduct on the part of the defendant- appellant in not complying with the directions of this Court as to the deposit. It is also contended that both the Courts below decreed the suit for refund of Rs.60,000/- and therefore, there is no reason to restrict the interest payable on Rs.40,000/- instead of Rs.60,000/-, that too at 6% p.a. Therefore, the learned Counsel contends that by exercising the powers under Order 41 Rule 33 C.P.C., the quantum of interest may be modified and the same may be allowed on Rs.60,000/- , which was decreed. Section 33 of the Specific Relief Act would be relevant to be noted and it will also substantially answer the substantial question of law arisen in this appeal: Section:33: POWER TO REQUIRE BENEFIT TO BE RESTORED OR COMPENSATION TO BE MADE WHEN INSTRUMENT IS CANCELLED OR IS SUCCESSFULLY RESISTED AS BEING VOID OR VOIDABLE: (1) On adjudging the cancellation of an instrument the Court may require the party to whom such relief is granted, to restore, so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require (2) Where a defendant successfully resists any suit on the ground. (a) that the instrument sought to be enforced against him in the suit is voidable the Court, may, if the defendant has received any benefit under the instrument from the other party, require him to restore, so far as may be, such benefit to that party or to make compensation for it. (b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been competent to contract under Section 11 of the Indian Contract Act, 1872(9 of 1872). The Court may, if the defendant has received any benefit under the agreement from the other party require, him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefited thereby. The execution of the sale deeds is not in dispute and consequently, the passing of sale consideration of Rs.40,000/- to the defendant-appellant, also cannot be disputed. Whatever the reason, it was held by a competent Court in another litigation that the defendant- appellant had no title and as such, the conveyance made by him in favour of the 4th respondent-plaintiff as noted by lower appellate Court in para 14 of judgment. Further the allegation of evidence of respondents/plaintiffs as to lack of title was not contraverted by appellant/defendant by leading any evidence warranting adverse inference to be drawn against them. Accordingly, in terms of section 33 of the Specific Relief Act, the plaintiffs-respondents are entitled to recover the amount paid by them. I am however unable to appreciate the contention of the learned Counsel for the plaintiffs-respondents that the plaintiffs-respondents could be entitled to the restoration of benefit to the extent of consideration shown in the agreement of sale. The said contention cannot be accepted at least for two reasons viz., (1) the agreement of sale is superceded by two registered sale deeds which can alone be looked into for the purpose of ascertaining the benefit which was passed on to the defendant-appellant, as vendor and (2) in any case, the agreement of sale is followed by two sale deeds and it may be that the parties agreed that the title would be conveyed to the plaintiffs- respondents on receipt of Rs.40,000/- as against Rs.60,000/- which was mentioned in the agreement of sale. The decree granted by both the Courts below amounts to ignoring the sale consideration mentioned in the registered sale deeds and in terms of Section 33 of the Specific Relief Act, the benefit which was accrued to the defendant-appellant under the two sale deeds, can alone be restored back to the plaintiffs-respondents. In this view of the matter, the decrees of both the Courts below are required to be modified to that for an amount of Rs.40,000/- only which the plaintiffs- respondents shall be entitled as against Rs.60,000/-. To that extent, the substantial question of law is answered in favour of the defendant- appellant. In so far as the contention of the learned Counsel for the plaintiffs-respondents with regard to the awarding of interest is concerned, it is to be noted that there is no appeal or cross appeal by the plaintiffs-respondents before this Court. Apart from that, the cross-objections filed by the plaintiffs- respondents are partly allowed by the lower Appellate Court. But, the plaintiffs-respondents have not preferred any appeal or cross appeal in that regard. Having failed to do so, it would not be proper for this Court to exercise the powers under the provisions of Order 41 Rule 33 C.P.C. The interest at the rate of 6% p.a., was already awarded by the lower appellate Court on Rs.40,000/- . Therefore, it needs no interference. In the result, the second appeal is partly allowed to the extent indicated above. Consequently, the suit in O.S. No. 176 of 1989 on the file of the learned Subordinate Judge, shall stand decreed for Rs.40,000/- with interest at 6% p.a., from the date of the suit till the realization of the amount. _________________________ Justice Vilas V. Afzulpurkar Dated: 18.11.2010 Gurc THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO : 653 of 1999 18.11.2010