1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.88 OF 2010 Shri Inacio Albino Lourenco, son of late Xavier M. Lourenco, 39 years old, married, Businessman, residing at Cujira, Santa Cruz, Ilhas – Goa. …. Appellant V/s 1. Smt. Jeremia Sequeira Vaz, widow of Clovis Sequeira Vaz, 68 years old, retired, residing at 12-B, Jolly maker Apartment I, Cuffe Parade, Bombay – 400 005. 2. Mrs. Joan Crasto, r/o. 47/A, Kothachiwadi, Girgaum, Mumbai 400 004. 3. Capt. Rosslyn Crasto, r/o. 47/A, Kothachiwadi, Girgaum, Mumbai, 400 004. 4. Mr. Charles Siqueira Vaz, 6th floor, Surya Apartments, Hill Road, Bandra (west), Mumbai 400 050. 5. Mrs. Joyce Siqueira Vaz, 6th floor, Surya Apartments, Hill Road, Bandra (West), Mumbai 400 050. 6. Shri Lloyd Sequeira Vaz, son of Clovis Sequeira Vaz, major, bachelor, service, Resident of 12-B, 2 Jolly Maker Apartment I, Cuffe Parade, Bombay 400 005. …. Respondents Shri Nigel Da Costs Frias, Advocate for the Appellant. Shri M.B. Da Costa, Senior Advocate with Shri J.A. Lobo, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 24th NOVEMBER, 2011 JUDGMENT: Heard Shri Nigel Da Costa Frias, learned Counsel appearing for the appellant and Shri M.B. Da Costa, learned Senior Counsel appearing for the respondents. 2. Admit on the following substantial question of law: Whether the appellant is entitled for the refund of amount of Rs.1,25,000/- paid to the respondents together with interest thereon at the rate of 18% p.a. from 23/05/1997 up to actual payment. 3. Heard finally with the consent of the learned Counsel. Learned Counsel appearing for the respondents waives service. 4. Appellants had filed a suit for specific performance of an agreement for sale in respect of a flat situated at Miramar, Panaji whereby according to the appellant they had advanced a sum of 3 Rs.1,25,000/- way back in the year 1997 and the total consideration payable by the appellant to the respondents was a sum of Rs.4 lacs. In view of the fact that the respondents were not complying with the terms of the contract the suit came to be filed for specific performance of the agreement for sale in respect of the suit flat. 5. The respondents disputed the right of the appellant for specific performance of the agreement, but however, did not dispute the receipt of the sum of Rs.1,25,000/- from the appellant. The learned Civil Judge, Senior Division at Panaji by judgment and decree dated 27/07/2007 dismissed the suit filed by the appellant. Being aggrieved by the said judgment and decree, the appellant preferred an appeal before the learned Additional District Judge, North Goa, Panaji being Regular Civil Appeal No.60/2010. The learned Lower Appellate Court by judgment and decree dated 30/09/2010 dismissed the appeal preferred by the appellant. Being aggrieved by the judgments passed by the Courts below, the appellant has preferred the present Second Appeal. 6. On perusal of the judgments passed by the Courts below, they have concurrently come to the conclusion that the appellant 4 has failed to establish his right to claim for specific performance of agreement for Sale. Both the Courts below have concurrently held that the appellant has failed to perform his part of the agreement and, as such, refused to grant the relief for specific performance of agreement of sale. 7. In view of the said concurrent findings of the Courts below, I find that there is no substantial question of law which arises in the present appeal on that count. During the pendency of the above appeal the appellant amended the plaint to incorporate therein the relief to refund the sum of Rs.1,25,000/- paid by the respondent together with interest. 8. Considering the facts and circumstances of the case, the fact that the respondents have received a sum of Rs.1,25,000/- pursuant to the Agreement of Sale has not been disputed. Respondents have not alleged that any damages occurred to them for the non performance of the agreement which can be attributed to the appellant. Hence, the respondents are not entitled to retain the said amount despite of the fact that the relief for specific performance came to be rejected. As such, the appellant is entitled 5 for the refund of the said sum of Rs.1,25,000/- together with interest thereon. At this stage, both the learned Counsel pointed out that this Court may fix a consolidated amount as payable by the respondents to the appellant with regard to the refund of the said amount. As such, in the facts and circumstances of the case, considering that the amount was paid in the year 1997, the respondents shall pay to the appellant a consolidated sum of Rs.6 lacs in full and final settlement of their claim for refund of the said amount in respect of the suit transaction. To that extent, the impugned judgment deserves to be modified. At this stage, both the learned Counsel pointed out that the said amount of Rs.6 lacs would be paid by two instalments. Accordingly, Shri M.B. Da Costa, learned Senior Counsel appearing for the respondents states that the respondents will pay to the appellant a sum of Rs.3,50,000/- by Demand Draft dated 22/11/2011, today and shall pay the balance sum of Rs.2,50,000/- within 8 weeks from today. The substantial question of law is answered accordingly. 9. Hence, I pass the following order: ORDER (i) The appeal is partly allowed. 6 (ii) The suit filed by the appellant is partly decreed to the extent that the respondents are directed to pay to the appellant a total sum of Rs.6 lacs by two instalments namely the sum of Rs.3,50,000/- by Demand Draft dated 22/11/2011 delivered today and the balance Rs.2,50,000/- to be paid within 8 weeks from today. (iii) The impugned Judgment and decree is modified accordingly. (iv) Appeal stands disposed of with no order as to costs. F.M. REIS, J. NH/-