IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.584 of 2009 FIRST APPEAL NO.584 of 2009 FIRST APPEAL NO.584 of 2009 a/w. a/w. a/w. CIVIL APPLICATION NO.1805 OF 2009. CIVIL APPLICATION NO.1805 OF 2009. CIVIL APPLICATION NO.1805 OF 2009. Shripati Vithoba Wadhane ..Appellant (Original Defendant) versus Smt.Shobha S. Tambe ..Respondent (Original Plaintiff) Shri Vikas Shivarkar for the appellant Shri Jaydeep Deo for the respondent CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 27th April, 2009. DATED : 27th April, 2009. DATED : 27th April, 2009. P.C. 1. Learned Advocate for the respondent waives service of the notice of First Appeal. By consent First Appeal is taken up for final hearing at admission stage. 2. The respondent had instituted suit for specific performance of agreement dated 21.6.2006 in regard to the property more particularly described in the suit. That suit was heard and decided by the learned Joint Civil Judge, Senior Division and 6th Addl. Judge, Small Causes Court, Pune and (hereinafter referred to as learned trial Judge). The learned trial Judge by his judgment -2- and decree dated 29.1.2009 granted specific performance of the suit agreement upon certain terms and conditions. This judgment and decree dated 29.1.2009 is challenged in this First Appeal. 3. I have heard learned Advocates on both the sides. The learned trial Judge in the impugned judgment has arrived at a conclusion that the respondent was ready and willing to perform his part of contract. This aspect has been held in favour of the respondent in terms of discussion at para 12. In so far as obtaining permission from the Collector for completing the said transaction, the Court is informed that the application for permission was already made. However, the Office of the Collector, District Pune is not processing the said application because the appellant has lost the receipt concerning the said application. The learned trial Judge has directed that the transaction should be completed within two weeks from getting the permission and if the permission is not granted, the respondent is entitled to get Rs.1,25,000/- along with interest at the rate of 12% per annum from the date of filing of the suit till realisation. Learned Advocate for the appellant contended that the learned trial Judge -3- has erred in granting interest at the rate of 12% per annum on the sum of Rs.1,25,000/-. He submitted that this argument is being advanced taking that the Court is against the appellant on merits. According to him, in the suit agreement there is no provision for payment of any interest on the amount to be returned and hence no interest is payable. Learned Advocate for the appellant contended that the impugned decree suffers from a patent defect in as much as the learned trial Judge has not appreciated the evidence in its proper perspective. 4. As against this, the learned Advocate for the respondent contended that the impugned judgment is well considered judgment and the learned trial Judge has considered all the aspects of the matter and has rightly decreed the suit including the question of interest. 5. I have considered the rival contentions, and in my view the judgment delivered by the learned trial Judge, as regards the grant of specific performance is proper. Since the permission has not been granted by the Collector as the receipt of the said application is misplaced, -4- the appellant will have to make a fresh application and after that fresh application is filed the said application can be considered by the Collector within the stipulated time. If the said permission is not granted, undoubtedly the respondent would be entitled to get back Rs.1,25,000/-. In so far as the question of interest is concerned, the argument advanced by the learned advocate for the appellant that no interest whatsoever will be payable to the respondent cannot be accepted because the appellant cannot be permitted to have the benefit of the sum of Rs.1,25,000/- without payment of any interest at the time of returning the said amount, particularly when the respondent is not at fault. The question of returning the amount would come only if the permission is refused by the Collector. If the argument advanced by the learned advocate for the appellant is accepted, it would mean that for no fault of the respondent, the respondent would be deprived of interest on the sum of Rs.1,25,000/- if it is to be repaid by the appellant. Considering the nature of the transaction and the year of transaction, if interest at the rate of 8% is awarded it would meet the ends of justice and to that extent, respondent can be said to be entitled to receive interest at the rate of 8% instead of -5- 12% per annum from the date of the suit till realisation. In my view, this arrangement would meet the ends of justice. 6. For the reasons mentioned aforesaid, the First Appeal is being disposed of by passing the following Order. ORDER ORDER ORDER i. The appellant should file a fresh application for seeking permission from the Collector, District Pune as set out in the agreement dated 21.6.2006. ii. The Office of the Collector shall process the said application as expeditiously as possible and communicate his decision to the appellant and the respondent within a period of three months from the date of filing of this application. iii. If the said permission is granted, the appellant shall execute the sale deed in favour of the respondent within a period of four weeks from getting the permission. If the permission is not -6- granted by the Collector, District Pune, the appellant shall repay to the respondent the sum of Rs.1,25,000/- along with interest at the rate of 8% per annum from the date of the suit till realisation. iv. If the appellant fails to execute the sale deed as mentioned aforesaid, the respondent shall be able to have the sale deed executed in accordance with the provisions of law. v. The first appeal is disposed of in above termks with no Order as to costs. vi. In view of the aforesaid Order, Civil Application No.1805 of 2009 stands disposed of with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)