IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE G. CHANDRAIAH CITY CIVIL COURT APPEAL No. 17 OF 1990 Between: Smt K. Suryakantham ......Appellant/Plaintiff AND M.V. Shyam Rao & others ......Respondents/Defendants Counsel for the petitioner: Sri P.M. Gopala Rao Counsel for the Respondents: Smt K. Annapurna Reddy The Court made the following:- THE HONOURABLE SRI JUSTICE G. CHANDRAIAH CITY CIVIL COURT APPEAL No.17 OF 1990 JUDGMENT: 1. This appeal is filed against the judgment and decree dated 12.04.1989 passed in O.S.No.1518 of 1983 by the learned III Additional Judge, City Civil Court, Secunderabad. 2. The appellant herein is the plaintiff, Smt. K. Suryakantham, and the respondents are the defendants in O.S. No.1518 of 1983. For the sake of convenience, the parties are referred to as arrayed in the suit. 3. The plaintiff filed suit for recovery of Rs.57,500/- from the defendants, D1 to D6 together with costs and future interest at 15% per annum from the date of the suit till realization. Eventually, the trial Court decreed the suit vide impugned judgment for an amount of Rs.20,000/- together with interest thereon at 10% per annum from the date of legal notice dated 27-12-1982, got issued by the plaintiff, till the date of suit with future interest at 6% per annum from the date of suit till its realization and held that she is entitled to the costs proportionately. Aggrieved of not granting damages, this appeal has been preferred by the plaintiff. 4. The case of the plaintiff is that defendant Nos.1 to 3, 5, 6 and one late M.V. Krishna Rao, who is husband of defendant No.4, had an agreement of sale dated 05-04-1978 from one late A.N. Venkat Subramanian for purchase of 4534 square yards of land in Survey No.73 of Marredpally bearing plot Nos.29, 30, 31, 33, 37, 38 and 40, wherein it was agreed to convey the land to them or their nominees on payment of full sale consideration. Based on that, husband of the plaintiff negotiated with the defendants for purchase of the plot on behalf of plaintiff. 5. Accordingly, defendants entered into an agreement of sale dated 31-10-1980 in favour of the plaintiff agreeing to sell an extent of 250 square yards of land at the rate of Rs.100/- per square yard and received Rs.20,000/- as advance. It was also agreed that the sale would be procured directly in favour of the plaintiff from the owner. In spite of the plaintiff being ready and willing to pay the balance sale consideration of Rs.5,000/- and have the sale transaction completed, the defendants evaded the same on some pretext or the other. Thereafter, plaintiff learnt that the defendants allowed some encroachments upon the suit land by some people, rendering contract of sale in favour of the plaintiff, making incapable for execution. Then, plaintiff got issued a legal notice dated 27-12-1982 to them and also to the widow of A.N. Venkat Subramanian, who was the original owner of the plots and entered into an agreement of sale in favour of the defendants, seeking specific performance of the agreement of sale dated 31-10-1980. In spite of receipt of legal notice on 31.12.1982, defendant No.1 did not reply, whereas the other defendants avoided service of notice. Having received the notice on 28-12-1982, widow of late A.N. Venkat Subramanian got issued a reply notice alleging that the agreement of sale entered into by her husband in favour of the defendants expired as the defendants committed default. Thus, the defendants are incapable of performing the agreement of sale dated 31.10.1980. The market value of the plot in question in the vicinity is Rs.250/- per square yard as on the date of filing of the suit. As a result of breach of the agreement of sale by the defendants, plaintiff suffered damages of Rs.37,500/-, being difference amount in the rate of the plot, and the defendants are liable to refund the advance amount of Rs.20,000/- with interest. Therefore, the suit is filed for recovery of the advance amount of Rs.20,000/- and the damages calculated at Rs.37,500/-, being the difference amount in the rate of the plot from the date of agreement of sale to the date of filing of the suit, with interest and costs. 6. Defendant Nos.1, 4 and 6 filed written statement denying the allegations made in the plaint, inter alia, alleging that the defendants are in possession of the plots in question without there being encroachment by anyone. The Government is standing as an obstacle for the agreement of sale since 1980, as the Social Welfare Department issued notices to the Sub-Registrar, Urban Land Ceiling not to effect any sale over the land/plots in question as they are intending to acquire the same for the purpose of public. 7. It is also alleged that the plaintiff has got only right to purchase the land according to condition No.2 of the sale agreement which is to the effect that the sale shall be completed within three months from the date of layout plan sanctioned by the Contonment Board Authority, Secunderabad, but no such layout was approved till date because of the Social Welfare Department. 8. It is further alleged that as per condition No.6 of the sale agreement which states that in the event of no sale being permitted due to urban land ceiling or any other restrictions for the above mentioned plots in favour of the vendees, the vendor shall pay back the advance amount of Rs.20,000/- with interest at 10% per annum. Thus, the defendants have to pay back only Rs.20,000/- being the advance amount received for the plot. 9. Based on the rival pleadings, the trial Court framed the following issues: 1. Whether the plaintiff suffered any damage in respect of sale transaction and if so to what amount is the plaintiff entitled ? 2. Whether the suit is not maintainable? 3. Whether the defendants are entitled to pay the amount to be decreed in installments? 4. To what relief? 10. To substantiate her case, plaintiff got examined her husband as PW.1 and marked Exs.A-1 to A-17. On behalf of the defendants, no evidence was adduced. 11. On appreciation of the evidence on record, the trial Court held on issue No.2, with regard to maintainability of the suit, in favour of the plaintiff. As far as issue No.1 is concerned i.e. with regard to damages, the trial Court taking into consideration evidence of PW.1 and also the terms and conditions contemplated under Ex.A-1, agreement of sale dated 30-10-1980, held that the plaintiff is entitled to recover only advance amount of Rs.20,000/- together with interest at the rate of 10% per annum from the date of the legal notice till filing of the suit and thereafter at 6% per annum till its realization and disallowed the claim of damages. The claim of damages is refused on the ground that there was no evidence on record to show that in 1983 i.e. on the date of filing of the suit, market value of the plot was Rs.250/- per square yard though it was at Rs.100/- per square yards as on the date of agreement of sale in 1980. 12. Learned counsel appearing for the plaintiff - appellant submits that the trial Court ought to have granted damages to the plaintiff as claimed by her as the defendants failed to perform their part of agreement of sale dated 31-10-1980 since they did not execute sale deed in spite of the plaintiff got issuing legal notice dated 27-12-1982 expressing her ready and willingness and the trial Court had committed an error in not awarding damages on the ground that there was no evidence. It is his further contention that the trial Court ought to have granted interest at 10% per annum from the date of the agreement till realization instead of 6% per annum, since the same is agreed upon by the parties in the sale agreement itself. In support of his contention, he relied on a decision of a Division Bench of this Court in MAKKALA NARSIMLU v. GUNNALA RAGHUNANDAN RAO[1] where in it is held that; “The other two items questioned by the learned counsel for the appellant is that the learned Judge has awarded interest on Rs.4,000/- from the date of the suit till realisation even though there was no appeal about it, and there was no court-fee paid thereon. Likewise even awarding of proportionate costs by our learned brother of the trial Court and the appellate Court is challenged before us. Sri Mohan Rao relies on a decision in Syed Mohd. Badsha Hussain, In Re 1957-1 Andh WR 257 to say that court-fee should be paid on disallowed costs. As we have already pointed out, the failure to pay court-fee was taken as a mistake by the learned single Judge. He, therefore, allowed proportionate costs on condition that the plaintiff paid court-fee thereon. We are informed by Sri D.Hanumantha Rao, the learned counsel for the respondent that in pursuance of this direction court-fee has been paid. Awarding of interest on Rs.4,000/- is also challenged by the learned counsel on the ground that no appeal has been preferred in this regard as well. But then the fact remains that the lower Court while awarding a decree for Rs.4,000/- by way of refund, should have awarded interest on that amount and also proportionate costs. It failed to do so and that failure can be rectified by the Appellate Courts even though there was no appeal in this regard. That power is conferred on the Appellate court under R.33 of O.41 of the Code of Civil Procedure, which says that the, Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require; and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree. In view of this clear and categorical power conferred on the Appellate Court, we find no legal objection to the direction given by our learned brother in regard to the interest on Rs.4,000/- from the date of suit and also the proportionate costs of the trial Court.” 13. The present suit is for recovery of the amount and damages consequent to failure on the part of the defendants in executing the sale deed based on the agreement of sale. The terms of the agreement are as under: “ 1. WHEREAS the VENDORS agree to sell through the owner and the purchaser (VENDEE) agrees to purchase the said plots, for the said consideration of Rs.25,000/- (Rs. Twenty five thousand only) and the vendee has paid today already to the vendors a sum of Rs.20,000/- (Rs. Twenty thousand only) as advance and earnest money, the receipt of which the VENDORS hereby admit and acknowledge as per cash received by them. 2. The sale shall be completed within three months from the date of layout plan granted by the Cantonment Board Authority, Secunderabad. 3. All the expenses for the execution and registration of the sale deed such as stamp duty, registration charges etc., shall be borne by the Vendee only. 4. The VENDORS shall apply and obtain the sale permission from the competent authority, Urban Land (Ceiling & Regulation) Act 1976, before the registration in favour of the Vendee. 5. The owner through VENDORS shall clear all Municipal Tax/Land Tax etc., upto the date of sale. 6. In the event of no sale being permitted due to Urban ceiling or any other restrictions for the above mentioned plots in favour of the VENDEE, the VENDORS shall pay back to the VENDEE the advance amount of Rs.20,000/- (Rs. Twenty thousand only) with an interest of 10% per annum.” 14. When the plaintiff claims damages of Rs.37,500/- stating that the market value of the land in the vicinity of the suit plot was Rs.250/- per square yard as on the date of filing of the suit, it is her duty to prove the same by adducing appropriate evidence, but no such evidence was adduced. On the other hand, condition No.6 of the agreement of sale stipulates that in the event of no sale being permitted due to Urban Land Ceiling or any other restrictions for the land in question, the vendors (defendants) shall pay back the advance amount of Rs.20,000/- to the vendee (plaintiff) with interest at the rate of 10% per annum. Further, there is no clause with regard to damages. Thus, the conditions of the sale agreement are such that the performance of the agreement by the defendants is subject to certain other conditions such as permission to be granted by the authorities under the Urban Land (Ceiling & Regulation) Act, 1976. However, it is not the case of the plaintiff that the defendants have not put any efforts for executing the sale deed as agreed by them under the agreement of sale. The conditions stipulated in the sale agreement are binding on both the parties. There is no evidence to say that the defendants were responsible in not executing the sale deed in spite of the permission being granted by the authorities under the Act. In view of the terms and conditions of the sale agreement, the defendants are partly liable for non-performance of the agreement. Therefore, having regard to condition No.6 of the sale agreement, it has become impracticable for the defendants to execute the sale deed, unless the permission is granted by the U.L.C. authorities since it is mandatory to have necessary permission from the authority concerned. It is also not the case of the plaintiff that the defendants intentionally did not execute the sale deed in spite of there being no restrictions for the same; as such, the suit is not being laid for specific performance of the agreement, but it is for recovery of advance amount. 15. Therefore, the Court below rightly decreed the suit only for recovery of the advance amount of Rs.20,000/- with interest at 10% per annum from the date of legal notice till filing of the suit and thereafter at 6% per annum till its realisation denying the claim of damage on account of there being no evidence to claim such damages. 16. Coming to the question of interest, as agreed by the parties in the sale agreement, the trial Court has awarded interest at the rate of 10% per annum from the date of legal notice till filing of the suit and thereafter at 6% till its realization, which in my view is appropriate and in accordance with law. Therefore, the decision in Makkala Narsimlu’s Case (Supra 1) relied on by the learned counsel for the plaintiff is not applicable to this case as the facts are not similar. 17. In the circumstances, I do not see any illegality or infirmity to interfere with the impugned judgment. 18. Accordingly, the Appeal is dismissed. No order as to costs. 19. Respondent No.3, who was set ex parte in the suit and not preferred any appeal against the impugned judgment, filed cross-objections in this appeal, but there is no representation on his behalf. Therefore, the cross objections are dismissed. ______________________ JUSTICE G. CHANDRAIAH August 26, 2009. IVD/LSK [1] AIR 1977 ANDHRA PRADESH 374(1)