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GANG010000692020

Presented on: 10/1/2020

Registered on: 10/1/2020
Decided on: 28/6/2022
Duration: Years Months Days
2 5 18

IN THE COURT OF DISTRICT JUDGE -2 PANAJI SITTING

AT PONDA
(Before Shri Anil Scaria, District Judge-2, Panaji sitting at
Ponda Goa).

Regular Civil Appeal no.3/2020

Mr. T. K. Chandran,
son Kannan, Married,
aged 43 years, businessman
r/o MIG-62,
Goa Housing Board, Curti,
Ponda-Goa. …........Appellant

V/s

1. Smt. Rukmini Vithal Halankar

widow of late Mr. Vithal Halankar,
RCA 3/2020 page 2 of 32

aged 66 yrs,
r/o House no.670,
Rambhuwanwada, Kumbharjua,
Tiswadi-Goa.

2. Smt. Vaishali Vinayak Tari,

daughter of late Mr. Vithal Halankar
and widow of late Vinayak Maddo Tari,
aged 45 yrs,housewife,

3. Mr. Sairaj Vinayak Tari,

son of late Mr. Vinayak Maddo Tari,
aged 18 years, student

4. Mr. Harsh Vinayak Tari,

son of late Mr. Vinayak Maddo Tari,
aged 15 yrs, minor, student,

The respondent no.4 being minor is

represented herein by her mother and
natural guardian the respondent no.2

All residents of House no.58,

Rumdawada, Post Usgaon,
Pale, Bicholim-Goa.

5. Mr. Swapnil Vithal Halankar,

son of late Mr. Vithal Halankar
married, service, aged 39 yrs,
and his wife,

6. Mrs. Saloni Swapnil Halankar,

wife of Mr. Swapnil V. Halankar,
Aged 38 years, housewife,
Both resident of House no.670,
Rambhuwanwada, Kumbharjua,
Tiswadi-Goa.
RCA 3/2020 page 3 of 32

7. Mrs. Ravina Ravindra Khorjuekar,

daughter of late Mr. Vithal Halankar
and wife of Mr. Ravindra Khorjuekar,
aged 43 yrs, housewife,
and her husband,

8. Mr. Ravindra Khorjuekar,

aged 47 yrs, businessman,
Both resident of House no.181/50,
New wado, near Hanuman Temple,
c/o Damodar Stores,
Vasco-Goa.

9. Ms. Pushpagandha Vithal Halankar,

daughter of late Mr.Vithal Halankar
unmarried/spinster, aged 40 yrs, household.

10. Mr. Nityanand Vithal Halankar,

son of late Mr. Vithal Halankar,
aged 32 yrs, service, bachelor,
Both residents of H. no.670,
Rambhuvanwada, Kumbharjua,
Tiswadi-Goa. ….....Respondents

Appellant represented by Ld. Advocate Shri S. Tilve.

Respondents represented by Learned Advocate Ms. J. Sawaikar.

J U D G M E N T
(Delivered on this the 28th day of the month of June of the year
2022).

This is an appeal against the Judgment and Decree

dated 27/5/2019 passed by the Ld. Civil Judge, Junior Division,

RCA 3/2020 page 4 of 32

Ponda, in Regular Civil Suit No.21/2014. By this Judgment and

Decree an agreement of sale dated 24/5/2010 was terminated and

was held to be of no legal consequences. The defendant was

directed to vacate the suit flat premises and hand over vacant

possession of the same to the plaintiffs within 30 days. An inquiry

was ordered to determine mesne profits. The counter claim was

dismissed with costs.

2. The defendant is the appellant. The plaintiffs are the

respondents.

3. In this Judgment, the parties are called the plaintiffs

and the defendant for the purpose of easy reading.

4. The plaintiffs case is that plaintiff no.1 is the widow of

late Vithal Mahadev Halarnkar. That, by a Deed of

Sale/conveyance dated 8/6/2010, the Goa Housing Board sold to

Vithal Mahadev Halarnkar, Flat no.MIG-62, on the ground floor of

a building constructed on a part of the property bearing survey

RCA 3/2020 page 5 of 32

no.92 in the village of Curti, Ponda Taluka. This flat is hereinafter

called the “SUIT FLAT PREMISES”. That Vithal Mahadev

Halarnkar had allowed the defendant to occupy the suit flat

premises under a leave and license agreement. That, subsequently,

Vithal Mahadev Halarnkar and plaintiff no.1 executed and

registered an agreement of sale dated 24/5/2010. That by

agreement of sale dated 24/5/2010 the suit flat premises was agreed

to be sold to the defendant for Rs.6,21,000/-. That the defendant

paid Rs.3,00,000/- to Vithal Mahadev Halarnkar and plaintiff no.1

on the date of signing the agreement for sale. That the balance sum

of Rs.3,21,000/- was agreed to be paid within 40 days of the

signing of the agreement of sale. That, it was agreed that on failure

of the defendant to pay the balance sum of Rs.3,21,000/- a sum of

Rs.75,000/- was to be forfeited by the plaintiff and the remaining

amount was to be refunded without interest. That the defendant

failed to pay the balance sum of Rs.3,21,000/-. That Vithal

Mahadev Halarnkar issued notice dated 15/3/2011 through

Advocate Mr. Nelson Soares asking the defendant to vacate the suit

flat premises. That the defendant has replied demanding the

RCA 3/2020 page 6 of 32

execution of the sale deed in his favour. That Vithal Mahadev

Halarnkar died on 9/9/2012. That defendants 2,5,6,8 and 9 are his

children. That plaintiffs no.3 and 4 are the children of plaintiff no.2

whose husband has expired. That plaintiff no.7 is the son in law of

late Vithal Mahadev Halarnkar. That defendant has become a

trespasser in the suit flat premises. That the defendant is liable to

pay Rs.1000/- per day for the illegal occupation of the suit flat

premises from January 2009 to January 2014. That it amounts to a

total sum of Rs.18,25,000/-. Therefore it is prayed that agreement

of sale dated 24/5/2010 be declared null and void and cancelled.

That the defendant be evicted from the suit flat premises and the

plaintiff be given possession of the same. That the defendant be

directed to pay Rs.18,25,000/- for the illegal occupation of the suit

flat premises from January 2009 to January 2014. That the

defendant be ordered to pay the arrears of licence fees of Rs.2,300/-

for the period from January 2009 to the date of disposal of the

present suit.

5. The defendant has filed his written statement setting up

RCA 3/2020 page 7 of 32

a counter claim.

6. The defendants case is that the Goa Housing Board

had issued a letter of offer to Vithal Mahadev Halarnkar. That by

the letter of offer the suit flat premises was offered to Vithal

Mahadev Halarnkar for Rs.2,19,000/-. That Vithal Mahadev

Halarnkar was in need of financial assistance. That Vithal

Mahadev Halarnkar approached the defendant and told him that he

did not have the money to pay the Goa Housing Board. That Vithal

Mahadev Halarnkar, therefore, requested the defendant to purchase

the suit flat premises from him after he had obtained the same by a

deed of sale from the Goa Housing Board. That in the month of

January 2005 Vithal Mahadev Halarnkar and the defendant entered

into the first agreement for sale of the suit flat premises. That the

defendant paid Vithal Mahadev Halarnkar Rs.3,00,000/- on the day

on which the first agreement for sale was executed. The balance

price to be paid was Rs.3,21,000/-. That Vithal Mahadev Halarnkar

did not get the required sale deed executed by the Goa Housing

Board. That, when the defendant inquired regarding the same,

RCA 3/2020 page 8 of 32

Vithal Mahadev Halarnkar told him that another agreement for sale

should be entered into. That, accordingly, they entered into the

second agreement for sale, which was dated 6/4/2009. That when

the second agreement of sale was executed Vithal Mahadev

Halarnkar took back the first agreement of sale saying that it was

no longer necessary. That Vithal Mahadev Halarnkar committed

breach of the second agreement of sale. That, accordingly, a third

agreement of sale was executed. That it was registered in the office

of the Sub-Registrar, Ponda on 3/9/2010. That it provided that the

balance price was to be paid within 40 days, whereupon, a sale

deed would be executed and possession of the suit flat premises

would be handed over to the defendant. That when the third

agreement of sale was executed Vithal Mahadev Halarnkar took

back the second agreement of sale saying that it was not required.

That the defendant was in constant touch with Vithal Mahadev

Halarnkar over the execution of the sale deed. That Vithal Mahadev

Halarnkar handed over the possession of the suit flat premises to

the defendant in December 2010, but he kept delaying the

execution of the sale deed. That Vithal Mahadev Halarnkar died.

RCA 3/2020 page 9 of 32

That, after the death of Vithal Mahadev Halarnkar, the defendant

approached the plaintiffs for getting the sale deed executed. That

plaintiff no.1 informed the defendant that the sale deed cannot be

executed without either getting a Deed of Succession executed or

getting the estate of Vithal Mahadev Halarnkar partitioned in an

inventory proceeding. That the defendant is always ready and

willing and is still ready and willing to get the sale deed executed.

That the plaintiffs are not ready and willing to do so. The

defendants deny for want of knowledge that the Goa Housing

Board had sold the suit flat premises to Vithal Mahadev

Halarnkar by Deed of Conveyance dated 8/6/2010. That Vithal

Mahadev Halarnkar had not informed the defendant regarding the

same. It is denied that late Mr. Vithal Mahadev Halarnkar had given

the suit flat premises to the defendant on monthly compensation of

Rs.2,300/- per month. The defendant states that he did not receive

the alleged notice dated 15/3/2011 of Advocate Shri Nelson Soares

asking him to vacate the suit flat premises as he was in Kerala at

that time. The defendant denies that he sent reply dated 1/5/2011 to

the alleged notice. That the defendant had sent notice dated
RCA 3/2020 page 10 of 32

1/6/2012 to Vithal Mahadev Halarnkar asking him to execute the

necessary sale deed. That the cause of action for the counter-claim

arose for the first time on 19/6/2012 when notice dated 1/6/2012

was posted and was received by the said late Vithal Mahadev

Halarnkar on or before 25/6/2012. That the suit is within the period

of limitation. Therefore, it is prayed that the suit be dismissed and

the counter-claim decreed. That the plaintiffs be directed to execute

a sale deed in respect of the suit flat premises in favour of the

defendant and perform their part of the "Agreements". In the

alternative it is prayed that the plaintiffs be directed to jointly and

severally pay the defendant Rs.6,42,000/- being Rs.3,00,000/-

towards the initial payment and Rs.3,42,000/- being towards

interest at the rate of 12% per annum from 1/1/2005 to date of filing

the present suit. That further interest from date of filing the suit to

date of realisation be ordered to be paid together with costs.

7. Plaintiff no.5 has filed his written statement to the

counter-claim.
RCA 3/2020 page 11 of 32

8. The case of the plaintiff no.5 is that Vithal Mahadev

Halarnkar was not in need of any money. That the defendant had

approached him to purchase the suit flat premises. It is denied that

Vithal Mahadev Halarnkar was given possession of the suit flat

premises after the Goa Housing Board executed a deed of

conveyance in his favour. In other words, Goa Housing Board had

given possession of the suit flat premises to Vithal Mahadev

Halarnkar prior to the deed of conveyance executed by them. That

the defendant was allowed to reside in the suit flat premises from

the year 2005 on leave and licence by Vithal Mahadev Halarnkar. It

is admitted that agreement of sale dated 6/4/2009 was executed.

That the original of agreement of sale dated 6/4/2009 is with the

defendant. That the defendant wanted to obtain a loan on the basis

of this agreement. That, however, the defendant found it impossible

to obtain a loan on the basis of an unregistered agreement. That the

defendant told Vithal Mahadev Halarnkar to execute and register

another agreement for sale. That Vithal Mahadev Halarnkar

therefore executed and registered agreement of sale dated

24/5/2010. It is denied that the plaintiffs delayed execution of the

RCA 3/2020 page 12 of 32

sale deed in favour of the defendant saying that a succession deed

or inventory proceeding partitioning the estate of Vithal Mahadev

Halarnkar was necessary before the sale deed could be executed.

That the defendant was not ready and willing to perform his part of

the agreement. Therefore, it was prayed that the counter-claim be

dismissed.

9. The Ld. Civil Judge Junior Division, Ponda partly

decreed the suit with costs. The counter-claim was dismissed with

costs. It was declared that agreement of sale dated 24/5/2010 stands

terminated and is of no legal consequence. That the defendant was

directed to vacate the suit flat premises and hand over vacant

possession of the same to the plaintiffs within 30 days. An inquiry

was ordered into mesne profits.

10. Aggrieved by the same the defendant has preferred this

appeal. The sum and substance of the grounds of appeal are that the

Ld. Civil Judge Junior Division, 'C' Court Ponda had erred in

concluding that the defendant has failed to perform his part of the
RCA 3/2020 page 13 of 32

agreement and that he was not ready and willing to pay the balance

consideration. That the defendant had purchased stamp paper for

the execution of the deed of sale and had printed the sale deed on

the stamp paper. That it shows his willingness to perform his part of

the agreement. That the Ld. Civil Judge Junior Division, 'C' Court,

Ponda failed to see that late Vithal Mahadev Halarnkar was not in

possession of the suit flat premises within the time stipulated in the

agreement for sale for its performance. That the Ld. Civil Judge

Junior Division, Ponda failed to see that the notice issued by the

plaintiffs was not served on the defendants. That the Ld. Civil

Judge Junior Division,"C' Court, Ponda wrongly recasted, amended

and framed additional issue at the time of passing the Judgment.

That the Ld. Civil Judge Junior Division,"C' Court, Ponda failed to

realise that details of deed of conveyance dated 8/6/2010 was

fraudulently entered in agreement for sale dated 24/5/2010 by

Vithal Mahadev Halarnkar. That the Ld. Civil Judge Junior

Division,"C' Court, Ponda erred in concluding that the counter-

claim is barred by limitation. Therefore, it is prayed that the

impugned Judgment and Decree be set aside and the counter-claim

RCA 3/2020 page 14 of 32

be decreed.

11. Heard arguments.

12. The following points arise for my determination and

my findings thereon are as follows:

Sr. POINTS FOR DETERMINATION FINDINGS

No.
1 Did the Ld. Civil Judge Junior Division,"C' In the
Court, Ponda err in holding that the Negative
defendant was occupying the suit flat
premises on a temporary basis under a leave
and licence agreement ?
2. Did the Ld. Civil Judge Junior Division,"C' In the
Court, Ponda err in holding that the Negative
defendant had committed a breach of
agreement for sale dated 24/5/2010 ?
3. Did the Ld. Civil Judge Junior Division,"C' In the
Court, Ponda err in holding that Vithal Negative
Halarnkar was in possession of the suit flat
premises prior to the deed of conveyance
dated 12/7/2010 ?
4 Did the Ld. Civil Judge Junior Division,"C' In the
Court, Ponda err in holding that there was no Negative..
agreement of sale executed between the
defendant and late Vithal Halarnkar in
2005 ?
5 Did the Ld. Civil Judge Junior Division,"C' In the
RCA 3/2020 page 15 of 32

Court, Ponda err in holding that the Negative.

defendant was not ready and willing to
perform his part of the agreement ?
6 Did the Ld. Civil Judge Junior Division,"C' Partly in the
Court, Ponda err in holding that the plaintiffs affirmative.
are not liable to pay Rs.6,42,000/- being the
earnest money paid together with interest ?
7 Did the Ld. Civil Judge Junior Division,"C' Partly in the
Court, Ponda err in holding that counter- affirmative..
claim is barred by limitation ?

R E A S O N S

POINT NO.1

13. The Ld. Civil Judge Junior Division,"C' Court, Ponda

had held that the defendant was holding the suit flat premises on a

temporary basis under a leave and licence agreement. Did the Ld.

Civil Judge Junior Division,"C' Court, Ponda err in doing so ?

14. The plaintiffs have examined plaintiff no.5 (Swapnil

Vithal Halarnkar) as PW1. Shri Mahadev Vinayak Fadte Gaunkar

(PW2) is a person who knows Vithal Mahadev Halarnkar. Nelson

Soares (PW3) is a Notary Public.

RCA 3/2020 page 16 of 32

15. The defendant has examined himself as DW1.

16. Plaintiff no.5 (PW1) deposes that his late father (Mr.

Vithal Halarnkar) had given the suit flat premises to the defendant

on leave and licence on a monthly compensation of Rs.2,300/- per

month.

17. Shri Mahadev Vinayak Fadte Gaonkar (PW2) deposes

that he had visited the suit flat premises along with late Vithal

Mahadev Halarnkar for the purpose of collecting monthly fees from

the defendant to whom it was given on leave and licence.

18. The testimony of plaintiff no.5 (PW1) finds

corroboration in the testimony of PW2.

19. Defendant no.1 (DW1) deposes that there was no leave

and licence agreement between him and Vithal Mahadev Halarnkar

with respect to the suit flat premises.

20. The oral evidence adduced by the parties is equally

RCA 3/2020 page 17 of 32

balanced against each other. Therefore let us look into documentary

evidence to ascertain the truth.

21. The plaintiffs have not produced the leave and licence

agreement. It is their case that the leave and licence agreement is

with the defendant.

22. Nevertheless, the plaintiffs have produced an abstract

from the register of the Notary Public at exh.46. It shows that

Vithal Mahadev Halarnkar and the defendant had executed a leave

and licence agreement with respect to the suit flat premises on a

deposit of Rs.5000/- and a monthly compensation of Rs.2000/-. The

licence was from 1/1/2005 to 30/11/2005. Vithal Mahadev

Halarnkar and defendant no.1 have signed the register.

23. The Notary Public, Nelson Soares (PW3) deposes that

late Vithal Mahadev Halarnkar and the defendant had executed the

leave and licence agreement before him.

RCA 3/2020 page 18 of 32

24. The abstract from the register of the Notary Public

(exh.46) shifts the preponderance of probabilities in favour of the

plaintiffs. Therefore, the Ld. Civil Judge Junior Division, 'C' Court,

Ponda had not erred in holding that the defendant was holding the

suit flat premises on a temporary basis under a leave and licence

agreement. Hence I hold the point of determination no.1 in the

negative.

POINT NO.2

25. The Ld. Civil Judge Junior Division,"C' Court, Ponda

had held that the defendant committed breach of agreement of sale

dated 24/5/2010. Did the Ld. Civil Judge Junior Division,"C' Court,

Ponda err in doing so ?

26. A party should be ready and willing to perform his part

of the contract, whether or not the opposite side is ready and willing

to perform their part of the contract. In other words, a party who is

not ready and willing to perform his part of the agreement cannot

escape by showing that the opposite side was not ready and willing
RCA 3/2020 page 19 of 32

to perform their part of the contract.

27. Agreement for sale dated 24/5/2010 is at exh.36. It

states the price of the suit flat premises is Rs.6,21,000/- out of

which a part of the price being Rs.3,00,000/- has been paid. The

balance was supposed to be paid within 40 days of the date of

execution of the agreement.

28. Agreement for sale dated 24/5/2010 was registered on

3/9/2010. That was well beyond 40 days of the signing of the

agreement. Vithal Mahadev Halarnkar had admitted execution of

the agreement for sale dated 24/5/2010 before Sub-Registrar on

3/9/2010. By doing so he has condoned the delay in tendering the

balance price. It also shows that time was not of the essence of the

agreement.

29. In the said agreement for sale dated 24/5/2010 it is

mentioned that the Goa Housing Board has executed a Conveyance

Deed dated 8/6/2010 in favour of Vithal Mahadev Halarnkar

RCA 3/2020 page 20 of 32

(transfering the suit flat premises to him). There is no reasonable

explanation as to how Conveyance Deed dated 8/6/2010 came to be

mentioned in Agreement for sale dated 24/5/2010. It only shows

that Agreement for sale dated 24/5/2010 is pre-dated . We do not

know when this agreement was drafted and when it was signed. We

can only say that it was executed on or before the registration of the

same on 3/9/2010.

30. All this does not absolve the defendant from being

ready and willing to perform his part of the agreement from the

date of execution of the agreement to the date of the suit and even

thereafter. In short, the questions are, whether defendant no.1 was

having the financial capacity to pay the balance price to Vithal

Mahadev Halarnkar and also as to whether he was willing to pay

the sum of money to him.

31. The defendant (DW1) deposes that he had taken a loan

from Indian Bank to pay Vithal Mahadev Halarnkar Rs.3,00,000/-

(i.e. the earnest money). DW1 deposes that he was supposed to

RCA 3/2020 page 21 of 32

borrow the balance amount of Rs.3,21,000/- from his brother and

give it to Vithal Mahadev Halarnkar. This part of the testimony of

DW1 shows that the defendant (DW1) did not have the money to

pay the balance price. He had to borrow money from his brother to

pay the same. The defendant has not examined his brother as a

witness to show that his brother had the required sum of money and

that he was willing to lend it to the defendant.

32. Exh. 34 colly is a notice dated 15/3/2011 issued by the

advocate for late Vithal Mahadev Halarnkar and plaintiff no.1. It

was addressed to the defendant. The defendant received the notice

sent to him by registered post. The postal acknowledgment card is

also at exh.34 colly. The defendant (DW1) admits that his signature

is present on the acknowledgment card.

33. By this notice late Vithal Mahadev Halarnkar and

plaintiff no.1 terminated agreement for sale dated 24/5/2010 and

had asked the defendant to vacate the suit flat premises.

RCA 3/2020 page 22 of 32

34. The defendant did not immediately tender the balance

price and demand the execution of the sale deed.

35. The defendant thereafter sent a notice dated 1/6/2012

(Exh.35) asking the plaintiff to take the balance price and execute a

sale deed transferring the suit flat premises to the defendant. The

notice was sent after a year of late Vithal Mahadev Halarnkar

sending his advocates notice terminating the agreement for sale.

36. The Ld. Advocate for the defendant Shri S. Tilve

argues that the defendant had purchased the required stamp paper

and had typed the sale deed on it. Shri S. Tilve states that this

shows that the defendant was ever ready and willing to perform his

part of the agreement.

37. Purchasing stamp papers late and typing a sale deed on

it does not show that the defendant was ever ready and willing to

perform his part of the agreement. The defendant should show that

he had money to pay the balance price from the date of agreement
RCA 3/2020 page 23 of 32

to the date of the suit.

38. There is nothing to show that defendant had the

required money to pay the balance price. Therefore the plaintiff

was not ever ready and willing to perform his part of the agreement.

He was not able to perform the contract within a reasonable period

of time. Therefore, the Ld. Civil Judge Junior Division,'C' Court,

Ponda had not erred in holding that the defendant committed breach

of agreement for sale dated 24/5/2010. Hence, I hold point for

determination no.2 in the negative.

POINT NO.3

39. The Ld. Civil Judge Junior Division,"C' Court, Ponda

had held that Vithal Halarnkar was in possession of the suit flat

premises prior to the deed of conveyance dated 12/7/2010 by which

Goa Housing Board had sold it to him. Did the Ld. Civil Judge

Junior Division,"C' Court, Ponda err in doing so ?

40. As seen above, Vithal Mahadev Halarnkar had let the

RCA 3/2020 page 24 of 32

suit flat premises to the defendant on leave and licence basis from

1/1/2005 to 30/1/2005. Therefore, Vithal Mahadev Halarnkar was

in possession of the suit flat premises prior to the Deed of

Conveyance dated 12/7/2010. The Ld. Civil Judge Junior

Division,'C' Court, Ponda had not erred in holding that Vithal

Mahadev Halarnkar was in possession of the suit flat premises even

prior to Deed of Conveyance dated 12/7/2010. Hence I hold point

of determination no.3 in the negative.

POINT NO.4

41. The Ld. Civil Judge Junior Division,"C' Court, Ponda

had held that no agreement of sale was executed between late

Vithal Mahadev Halarnkar and the defendant in the year 2005. Did

the Ld. Civil Judge Junior Division,"C' Court, Ponda err in doing

so?

42. The defendants case is that an agreement of sale was

executed between Vithal Mahadev Halarnkar and the defendant in

the year 2005.

RCA 3/2020 page 25 of 32

43. The plaintiffs' have denied the same. The plaintiffs

case is that what was executed in 2005 was a leave and licence

agreement.

44. The defendant has not produced the agreement of sale

executed in the year 2005. The defendant states that the original is

with the plaintiffs.

45. The plaintiffs, on the other hand, have produced an

abstract from the register of the Notary Public (PW3) to show that

an agreement of leave and licence was executed between the

defendant and Vithal Mahadev Halarnkar at exh. 46. The Notary

Public (PW3) has identified the signature of the defendant and

Vithal Mahadev Halarnkar on the xerox copy of the register.

46. Therefore, the Ld. Civil Judge Junior Division,"C'

Court, Ponda has not erred in holding that no agreement of sale was

executed between Vithal Mahadev Halarnkar and the defendant in

RCA 3/2020 page 26 of 32

the year 2005. Hence I hold point of determination no.4 in the

negative.

POINT NO.5

47. The Ld. Civil Judge Junior Division,"C' Court, Ponda

had held that the defendant was not ready and willing to perform

his part of the agreement. Did the Ld. Civil Judge Junior

Division,"C' Court, Ponda err in doing so ?

48. For the reasons stated above it is already seen that the

defendant was not ever ready and willing to perform his part of the

agreement. Therefore, the Ld. Civil Judge Junior Division,"C'

Court, Ponda had not erred in holding that the defendant was not

ever ready and willing to perform his part of the agreement. Hence,

I hold point of determination no.5 in the negative.

POINT NO.6

49. The Ld. Civil Judge Junior Division,"C' Court, Ponda

had held that the plaintiffs are not liable to pay Rs.6,42,000/- being
RCA 3/2020 page 27 of 32

the earnest money paid together with interest. Did the Ld. Civil

Judge Junior Division,"C' Court, Ponda err in doing so ?

50. Section 30 of the Specific Relief Act, 1963 reads as

follows:

30.Court may require parties rescinding to do

equity.
"On adjudging the rescission of a contract, 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."

51. A reading of Section 30 of the Specific Relief Act,

1963 shows that whenever there is recession of a contract, there

should be a consequent order for restitution. In this case, the

plaintiffs had alleged that they are entitled to terminate the

agreement and had got it terminated. Now, they must restore the

benefits they have received.

RCA 3/2020 page 28 of 32

52. The defendant had paid Vithal Mahadev Halarnkar

Rs.3,00,000/- as earnest money deposit. The plaintiffs are entitled

to forfeit Rs.75,000/- for breach of contract as per the agreement.

The plaintiffs should refund the balance sum of Rs.2,25,000/- to the

defendant. The agreement provides that the refund would be

without interest. So no interest is given on the said amount.

Therefore, the plaintiffs should be ordered to pay the defendant

Rs.2,25,000/- as the refund of the earnest money. The Ld. Civil

Judge Junior Division,'C' Court, Ponda, had partly erred in holding

that the plaintiffs are not liable to pay the defendants Rs.6,42,000/-

being earnest money paid together with interest. Hence I hold point

of determination no.6 partly in the affirmative.

POINT NO.7

53. The Ld. Civil Judge Junior Division,"C' Court, Ponda

had held that the counter-claim is barred by limitation ?. Did the

Ld. Civil Judge Junior Division,"C' Court, Ponda err in doing so ?

54. Exh.34 colly is a notice dated 15/3/2011 issued by the

RCA 3/2020 page 29 of 32

advocate of late Vithal Mahadev Halarnkar and plaintiff no.1. It

was sent to the defendant by registered post. The defendant

received the notice on 16/3/2011. The postal acknowledgment card

is also at exh.34 colly. The defendant (DW1) admits that his

signature is present on the acknowledgment card. By this notice late

Vithal Mahadev Halarnkar and plaintiff no.1 terminated agreement

for sale dated 24/5/2010 and had asked the defendant to vacate the

suit flat premises. The counter-claim was filed on 4/8/2014. It was

more than 3 years after receipt of notice that specific performance

was refused. Therefore, the counter-claim for specific performance

of the agreement is barred by Article 54 of the Limitation Act,

1963.

55. The next relief which the defendant has claimed in his

counter-claim is refund of earnest money. As seen above, Section

30 of the Specific Relief Act, 1963 provides that the right to refund

of earnest money arises when a decree rescinds the agreement. The

question of such refund arises when the Court recinds the

agreement. It can never be barred by the law of limitation.

RCA 3/2020 page 30 of 32

56. Therefore, the Ld. Civil Judge Junior Division,'C'

Court, Ponda had not erred in holding that the relief for specific

performance of agreement for sale dated 24/5/2010 is barred by the

law of limitation. Nevertheless, the Ld. Civil Judge Junior

Division,'C' Court, Ponda had erred in holding that the prayer for

refund of earnest money is barred by the law of limitation. Hence, I

hold point of determination no.7 partly in the affirmative.

57. The Ld. Civil Judge Junior Division,'C' Court, Ponda

had ordered an inquiry into mesne profits. He is entitled to do so

under Order 20 Rule 12 CPC.

58. The portion of the Judgment and Decree, decreeing the

suit requires no interference. But, the portion of Judgment and

Decree dismissing the counter-claim should be set aside and the

counter-claim should be partly decreed providing for restitution of a

portion of the earnest money.

RCA 3/2020 page 31 of 32

59. A sum of Rs.3,00,000/- was paid as earnest money. A

sum of Rs.75,000/- was allowed to be forfeited if the defendant did

not perform his part of the agreement within the stipulated time.

This sum should be deducted from the earnest money. The balance

is Rs.2,25,000/-.

60. The agreement provides that the refund would be

without interest. Therefore, he is not entitled to any interest on the

earnest money. The plaintiffs (respondents) should be directed to

pay the defendant (appellant) Rs. 2,25,000/- on the date of delivery

of the vacant possession of the suit flat premises to the plaintiffs

(appellants).

61. Hence, I pass the following:-

ORDER

The portion of the impugned Judgment and Decree

partly decreeing the suit is upheld. The portion of the impugned

Judgment and Decree dismissing the counter-claim is set aside. The

counter-claim is partly decreed. The respondents shall pay the

RCA 3/2020 page 32 of 32

appellant Rs.2,25,000/- as refund of the earnest money. This

amount shall be refunded on the date of the appellant handing over

vacant possession of the suit flat premises to the respondents.

No Orders as to costs.

Pronounced in the Open Court.

Ponda.

Dated: 28/6/2022
( Anil Scaria )
District Judge-2,Panaji
sitting at Ponda.
Sf*