1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3353-3354 OF 2018 (ARISING OUT OF SLP (CIVIL) Nos. 22018-22019 OF 2014)

P. Meenakshisundaram        ….Appellant

Versus

P. Vijayakumar  & Anr.    …. Respondents

J U D G M E N T  

Uday Umesh Lalit, J.

1.   Leave granted.

2. These  appeals  by  special  leave  challenge  the  correctness  of  the

judgment and order dated 07.01.2014 passed by the High Court of Madras in

Appeal Suit (MD) Nos. 218-219 of  2010.

3. The facts leading to the filing of these appeals in brief are as under :-

A. The  property  in  question  is  a  plot  admeasuring  about  3708

sq.ft.,  with  a  marriage  hall  (“Suit  Property”,  for  short)  situated  in

Village  Parasuramanpatti,  Madurai  North  Taluk,  Tallakulakam sub-

Division,  Madurai  North.   The  appellant  had  mortgaged  the  suit

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property with the Catholic Syrian Bank (later Federal Bank Ltd.) and

the bank had initiated recovery proceedings, namely, O.S. No.40 of

1996  before  3rd Additional  Sub-Court,  Madurai  which  was  later

transferred  to  DRT,  Coimbatore  and  renumbered  as  Transfer

Application No.1441 of 2002.

B. On  30.06.2000  the  appellant  entered  into  an  agreement

(Ex.A1) intending to sell the suit property to respondent No.1.  The

consideration agreed was Rs.19 lakhs out of which Rs.1 lakh was paid

by way of advance.  This agreement recited an assurance on the part

of the appellant, “…that there is no encumbrance over the Schedule

mentioned property” but went on to state:-

“The 2nd Party says that the original Parent Document in respect of the property is not available with the 2nd party and it is in the bank.  In case, there is any loan availed by the 2nd party either on the schedule property or on other property,  then  the  2nd party  has  to  pay  the  said  loan amount  by getting it  from the 1st party and to  get  the Original Parent Document and other supportive records in respect of the schedule property and the 2nd party has to hand over the same to the 1st party.”

C. The  cheques  issued  thereafter  by  respondent  No.1  were

dishonored (as evident from Notice Ex.A-2 dated 18.09.2000) but the

parties entered into a subsequent agreement on 20.09.2000  (“the suit

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agreement”,  for  short)  under  which the  consideration  was  fixed  at

Rs.37.5 lakhs.  As per this agreement, even the movables utilized for

marriage hall were also included.  Over and above Rs.1 lakh which

was already received as advance, additional sums of Rs.2 lakhs by

way of cheque and Rs.3 lakhs by way of demand draft were paid on

the same day.   The suit agreement recited that the remaining amount

had to be paid and the sale deed to be registered by 20.03.2001 in

following terms:-

“………the 1st party has to pay the remaining amount of sale consideration of Rs.26,50,000/- (Rupees twenty six lakhs and fifty thousand only) within 20.03.2001 either before the Sub Registrar or in person and the 2nd party has to receive the same and give proof to that effect and the said Sale Deed has to be registered by the 2nd party without  any  encumbrance  and  that  there  is  no  other person except the 2nd party to have title over the same.”   

D. Though the relevant terms in the suit agreement were identical

to those in agreement (Ex.A1), the understanding between the parties

as on the date when the suit agreement was entered into was captured

in  the  subsequent  communication  of  respondent  No.1  dated

22.09.2001 (Ex.A6) as under :-

“That on further persuasion and negotiations between the parties, it was agreed to have a fresh sale agreement with reference to the said Kalyana Mandapam and annexe.  As your client wanted to clear the entire loan in the Catholic

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Syrian Bank only by himself, the sale price of the said property was agreed for Rs.37,50,000/- only and a sum of Rs.5,00,000/- (Rupees five lakhs only) through D.D. and Cheque was paid additionally to your client by making the  total  advance  of  Rs.6,00,000/-  including  the  cash advance  of  Rs.1,00,000/-  already  paid  on  the  earlier agreement dated 30.06.2000.   Therefore in supersession of  the earlier  agreement  dated  30.06.2000 a  fresh  sale agreement  was  made  on  20.09.2000  with  the  parties concerned.”

E. On 21.02.2001 a further sum of Rs.2 lakhs was paid by way of

cheque  by  respondent  No.1.   Though  the  transaction  was  to  be

completed  by  22.03.2001  the  record  is  silent  about  any

communication  between  the  parties  around  that  time  towards

completion of transaction.  However, amount of Rs.10 lakhs was paid

by cheque on 22.09.2001, which according to respondent No.1 was

made over  to  the  appellant  so  that  the  dues  of  the  bank could  be

settled.   

F. The  record  is  again  silent  about  any  developments  after

22.09.2001  till  29.07.2002  when  a  legal  notice  was  issued  by

respondent  No.1  through  his  advocate.   According  to  respondent

No.1 this was responded by the advocate for the appellant and in the

ensuing discussion it was agreed that possession of the suit property

be handed over to respondent No.1.  According to respondent No.1,

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out of the balance amount of Rs.19.5 lakhs, Rs.13.5 lakhs was to be

made over by respondent No.1 to the bank directly and the remaining

sum of Rs.6 lakhs was agreed to be paid to the appellant in cash on

the day the document was to be registered.  According to respondent

No.1, possession of the suit property was handed over to him by the

appellant on 03.08.2002.

The aforesaid case set up by respondent No.1 is disputed and

denied by the appellant and according to him, with the intervention of

local police and other hirelings, the possession was forcibly taken by

respondent No.1 on 16.09.2002.    

G. On  01.09.2002,  a  telegram  was  sent  by  the  advocate  for

respondent  No.1  to  the  appellant.   Immediately  thereafter  i.e.  on

02.09.2002 an IA No.126 of 2002 was preferred by respondent No.1

to  implead  himself  in  the  Transfer  Application  No.1441  of  2002

before DRT,  Coimbatore.   In  his  reply telegram dated 03.09.2002

appellant  denied  all  the  assertions  made  by  the  advocate  for

respondent No.1 and cancelled the agreement dated 20.09.2000.  The

appellant also complained to DIG of the relevant range and sought

police protection and preferred OP No.226 of 2002 in the High Court

of  Madras  against  respondent  No.1,  Inspector  of  Police,

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Oomachikulam  and  Deputy  Superintendent  of  Police  of  the

concerned Division.  According to the appellant, he was threatened

by the hirelings employed by respondent No.1 and possession of the

suit  property  was  taken  over  by  respondent  No.1  on  16.09.2002.

This prompted the appellant to prefer an appropriate petition before

the Superintendent of Police, Madurai, Rural.   

H. In the aforesaid background, on 19.02.2002, respondent No.1

filed  OS  No.764  of  2002  seeking  specific  performance  of  the

agreement dated 20.09.2000.   The plaint was later amended and the

Federal Bank Ltd. through its Branch Manager was added as second

defendant.  As regards arrangement under which respondent No.1 was

put in possession, it was averred:

“……. Meanwhile, as necessary steps have to be taken for settlement of  the loan availed on the suit  property, the advocates of both the sides have held a meeting on 29.07.2002  to  execute  the  Sale  Agreement  made  on 20.09.2000 and it was agreed that this defendant has to execute the Sale Deed in respect  of the suit property on the 18th day of Aadi month of this year (3.08.2002); that the remaining sale consideration of Rs.13,00,000/- out of Rs.19,50,000/- has to be paid by the plaintiff to settle the case  which  is  being  conducted  at  Debts  Recovery Tribunal;  that  the  remaining  amount  of  Rs.6,50,000/- (Rupees  six  lakhs  and  fifty  thousand  only)  has  to  be given to the 1st defendant as cash ….”

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In  respect  of  readiness  and  willingness  on  the  part  of

respondent No.1 to perform his obligations under the suit agreement,

Para 7 of the amended plaint was as under: “(7) While  this  plaintiff  was  ready  to  fulfill  the  sale agreement  on  3.8.2002  as  per  the  above  said arrangement,  as agreed to execute the Sale Deed either on the 3rd day of Aavani Month (19.8.2002) or on 5th day of Aavani (21.8.2002)  and that there is some difficulty according to religious custom in registering the sale deed in the month of Aadi and to give consent to this plaintiff to take the possession of the marriage hall,  this plaintiff took the possession of the suit property on the 18th day of Aadi Month on 3.8.2002 and he has been enjoying the same.  The marriage functions which were being booked by the 1st defendant are being conducted by this plaintiff under his supervision.”

I. In his written statement, the appellant denied relevant assertions

made by respondent No.1.  As regards readiness and willingness on

the part of respondent No.1, it was stated:- “It  is  submitted  that  in  spite  of  defendant’s  repeated demands the plaintiff has not come forward either to pay balance sale price or to complete the sale immediately. Even though specific condition to complete the sale on or before 20.03.2001 is mentioned in the sale agreement and time is mentioned as essence of the contract, the plaintiff has  not  completed  the  sale  within  the  stipulated  time. The plaintiff  was not  ready and willing to perform his part of contract even though the defendant was ready to clear the encumbrance over the suit property.”

The matter regarding handing over of possession was elaborated as

under:

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“On  16.09.2002,  the  plaintiff  came  with  his  men  and threatened the defendant that why he had cancelled the sale agreement and if he did not execute sale deed in his favour he would not permit the defendant to enjoy the suit  property.   The defendant  immediately went  to  the office of the Police Commissioner, Madurai City wherein he  was  asked  to  come  tomorrow.   On  17.09.2002  he presented a petition to the Police Commissioner, Madurai City and it was forwarded to SP, Madurai Rural.   When the defendant was in the office of the SP, Madurai Rural, at the instigation of the plaintiff one Karthick Muniasamy of  Pudur  with  his  men  namely  Rajesh,  Kannan, Muniasamy and other attacked the watchman of the suit property and illegally  trespassed into the suit property and damaged the property and took illegal possession of the suit property.  On coming to know about the illegal taking  over  possession  of  the  suit  property  by  the plaintiff’s  men,  the  defendant  immediately  told  this matter to the SP, Madurai Rural who made endorsement on  the  petition  directing  the  Inspector  of  Police, Oomachikulam to register F.I.R. against the plaintiff and his men. .….”

J. In  his  Additional  Written  Statement-cum-Counter  Claim  the

appellant submitted:

“The  application  in  I.A.  No.126/2002  filed  by  the plaintiff in T.A. No. 1441/2002 pending before the DRT, Coimbatore  was  dismissed  on  03.01.2003.   In  the meantime the defendant has also paid Rs.13 lakhs to the Federal  Bank,  Madurai  after  the  filing  of  the  suit  till date.”

He further submitted:

“It  is  submitted  that  the  plaintiff  has  taken  illegal possession of the suit  property as stated above and his possession  is  unlawful.   He  has  been  in  receipt  of

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unlawful gains on account of being in illegal possession and receiving income from the suit  property.   The suit property  used  to  be  booked  for  a  minimum  of  30 Muhoorthams per year.  After deducting all expenses the year  income  from  the  suit  property  is  Rs.1,80,000/-. From  17.09.2002  to  till  filing  of  this  counter-claim approximately  the  past  mesne  profits  would  be Rs.5,40,000/-.  The plaintiff is liable to pay Rs.5,40,000/- as  past  mesne  profits  from  17.09.2002  to  the  date  of filing of this Additional Written statement cum counter claim.   In  these circumstances a  decree  for  mandatory injunction and for mesne profits is to be granted, where the  1st defendant  would  be  put  to  irreparable  loss  and damage.”

The  appellant  in  the  circumstances  prayed  for  delivery  of

possession of the suit  property,  past  mesne profits of  Rs.5,40,000/-

and future mesne profits as well.

K. The Presenting Officer of the Federal Bank Ltd. filed a memo

on 08.12.2009 in the proceedings before DRT Coimbatore that  the

appellant had remitted a sum of Rs.13,42,173/- on 16.11.2009 towards

full and final settlement of the account.  It was therefore prayed by the

Presenting Officer that satisfaction of the claim be recorded.

L. The trial  court  by its  judgment  and decree dated  01.10.2010

decreed OS No.764 of 2002 and dismissed the counter claim preferred

by the appellant. All the issues were answered in favour of respondent

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No.1. The appellant was directed to execute the sale deed in respect of

the suit property and register the same in favour of respondent No.1

after receiving the balance sale consideration within three months and

the  appellant  was  further  directed  to  pay  to  respondent  a  sum  of

Rs.3,23,038/- towards the costs of the suit.  It was observed that time

was  not  the  essence  of  the  contract.   As  regards  readiness  and

willingness on the part of respondent No.1, it was observed as under:

“While considering the readiness and willingness of the plaintiff  as  to  purchase  the  suit  properties  it  was submitted by the counsel for the plaintiff that as agreed the plaintiff did issue the legal notice to the 1st defendant to come forward to register suit properties after getting full  consideration and also the plaintiff was waiting on 03.08.2002 in the suit Sub-Registrar office as to register the suit  properties as  agreed and also the plaintiff  was ready to pay the full amount and willing to purchase the suit properties.”  

M. The  matter  was  carried  further  by  filing  Appeals  by  the

appellant in the Madras High Court, Madurai Bench.  According to

the High Court before the execution of suit agreement the appellant

had  not  disclosed  about  the  existence  of  encumbrance  which  fact

came to the knowledge of respondent No.1 subsequently.  Relying on

the decision of this Court in  S.P. Chengalvaraya Naidu (Dead) by

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LRs v.  Jaganath (Dead) by LRs and Others.1  it  was observed as

under:

“Since the first defendant has suppressed the fact that he obtained loan by way of encumbering the suit property and also pendency of Original Suit No.40 of 1996 at the time of execution of Ex.A3, it is pellucid that the entire defence  put  forth  on the  side  of  the  first  defendant  is based upon falsehood.

…..  But  for  the  reasons  best  known  to  him, schemingly,  deliberately  suppressed  the  existence  of mortgage  over  the  suit  property  and  further  stated  in Ex.A3 to the effect that there is no encumbrance over the same.  Therefore, the entire defence put forth on the side of the first defendant is purely based upon falsehood and as per the dictum given by the Hon’ble Apex Court the defence  put  forth  by the  first  defendant  in  the  present case can summarily be thrown out.”

The High Court found that the readiness and willingness on the

part of respondent No.1 stood established.  The High Court, thus, by

its  judgment  and  order  dated  07.01.2014  dismissed  the  appeals,

namely, Appeal Suit Nos.218-219 of 2010 preferred by the appellant.

4. This Court issued notice on 25.08.2014 in petitions for special leave

to appeal.  The parties exchanged the pleadings and also filed documents on

record.

1 (1994) 1 SCC 1

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We heard Ms. V. Mohana, learned Senior Advocate in support of the

appeals and Mr. V. Prabhakar, learned Advocate for respondent No.1.  After

conclusion of hearing, written submissions were filed by respondent No.1

submitting inter alia:-  

“Apart from having averred regarding the readiness and willingness,

respondent No.1 by his conduct had proved the same which are as below:-

i) Payment of an advance of Rs.6,00,000/- on 20.09.2000.

ii) Further advance of Rs.2,00,000/- paid on 21.01.2001.

iii) Further advance of Rs.10,00,000/- paid on 22.09.2001.  

iv) Notice dated 22.09.2001 issued by the respondent to the petitioner to execute the sale deed.

v) Holding a meeting of the petitioner, his counsel with the respondent  and  his  counsel  for  determining  the  manner  of performance of the Agreement.  The said factum of the meeting and the outcome thereof as set out in the Plaint in Para 6 at Page 136 of Volume II stood admitted by the respondent in the Notice dated 29.07.2002 issued on his behalf which had been marked as Exhibit A15.

vi) Taking possession of the property on 03.08.2002.

vii) Seeking impleadment in the Debt Recovery proceedings with a view to settle the debt due from the Respondent.

viii) Filing of the Suit within 9 days after the telegram dated 03.09.2002 issued by the petitioner cancelling the agreement. Suit had been filed on 12.09.2002. ……………..

The  non  deposit  of  the  balance  consideration  by  respondent

No.1  cannot  be  put  against  respondent  No.1  inasmuch  as  the

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encumbrance came to light after the agreement to sell which ought to

have been cleared by the petitioner by demanding the amount for the

discharge in terms of the recital at page 37 of the SLP paper book2

which was never done by the petitioner.   As per  the recital  in  the

Agreement to sell the petitioner had to handover the original parent

title deed and other supportive documents which was again not done

despite having received nearly half of the sale consideration.  Since

the  parent  title  deed  had  not  been  given  as  required  under  the

agreement, possession was given to respondent No.1.”

5. In Gomathinayagam Pillai and Others v. Pallaniswami Nadar3 after

referring  to  the  observations  of  the  Privy Council  in  Ardeshir  Mama  v.

Flora Sassoon4, this Court laid down that in a suit for specific performance

of an agreement, the plaintiff must plead and prove that he was ready and

willing to perform his part of the contract since the date of the contract, right

upto the date of the hearing of the suit.  The observations by this Court in

that behalf were as under:-

“But  the  respondent  has  claimed  a  decree  for  specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his  part  of  the  contract.   If  he  fails  to  do  so,  his  claim for

2  As quoted in Paragraph 3(B) above 3 (1967) 1 SCR 227 4 L.R. 55 I.A. 360

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specific  performance must  fail.   As observed by the Judicial Committee of the Privy Council in  Ardeshir Mama v.  Flora Sasson [ L.R. 55 I.A. 360, 372 ]

“In a suit  for specific performance,  on the other  hand,  he  treated  and  was  required  by  the Court to treat the contract as still subsisting.  He had  in  that  suit  to  allege,  and  if  the  fact  was traversed, he was required to prove a continuous readiness  and  willingness,  from  the  date  of  the contract to the time of the hearing, to perform the contract  on his  part.   Failure  to  make good that averment brought with it  the inevitable dismissal of his suit.”

The respondent must in a suit for specific performance of an agreement plead and prove that  he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit.”

6. Similarly  in  J.P.  Builders  and  Another  v. A.  Ramadas  Rao  and

Another5, it was observed by this Court in paragraphs 21 and 25 as under :-

“21. Among the three clauses,  we are more concerned about clause (c). “Readiness and willingness” is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later  inserted with the recommendations of  the 9th Law Commission’s  Report.  This  clause  provides  that  the  person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him.

25. Section  16(c)  of  the  Specific  Relief  Act,  1963 mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance.  It  is  also  clear  that  in  a  suit  for  specific

5 (2011) 1 SCC 429

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performance, the plaintiff must allege and prove a continuous “readiness and willingness” to perform the contract on his part from the date of the contract. The onus is on the plaintiff.”

7. The assurance given by the appellant at the time when the agreement

dated 30.06.2000 (Ex.A1) was executed that there was no encumbrance over

the suit property was not a correct statement of fact.  The further recital that

the “Original Parent Document” was in the Bank again was not a fair and

complete  disclosure.   It  is  true  that  these  averments  were  copied  in  the

subsequent suit agreement dated 20.09.2000.  However the communication

dated 22.09.2001 (Ex.A6) emanating from respondent No.1 records that by

the  time  the  suit  agreement  was  entered  into  the  existence  of  the

encumbrance was a well known fact.  For the purposes of the present matter

what is important is the common understanding with which the parties had

entered into the transaction.  If respondent No.1 was well aware about the

existence  of  encumbrance  over  the  suit  property  at  the  time  when  suit

agreement was entered into, he cannot thereafter submit to the contrary.  In

the face of such clear understanding under which the suit  agreement was

entered into, the High Court was completely in error in observing that the

entire  case  put  forth  on  the  part  of  the  appellant  was  required  to  be

summarily  thrown  out.   Further,  reliance  on  the  decision  in  S.P.

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Chengalveraya Naidu (supra) was also misplaced.  That case did not arise

from a suit for specific performance and more over the plaintiff in that case

was found to have withheld relevant documents and as such the judgment

rendered by the trial Court dismissing his claim was restored by this Court.

The principle laid down therein cannot apply either on facts or in law to the

present case.   

8. As regards suit for specific performance, the law is very clear that the

plaintiff must plead and prove his readiness and willingness to perform his

part of the contract all through i.e., right from the date of the contract till the

date of hearing of the suit.  If respondent No.1 was well aware about the

encumbrance and the parties had chosen that the balance consideration be

paid  to  the  appellant  before  20.03.2001  so  that  the  sale  deed  could  be

registered without  any encumbrance,  it  was  for  respondent  No.1 to  have

taken appropriate steps in that  behalf for completion of transaction.  The

facts on record disclose that the first step taken by respondent No.1 after the

suit  agreement was well  after  four months,  when further  amount of Rs.2

lakhs was paid on 21.01.2001.  Thereafter nothing was done till 20.03.2001

by which the transaction had to be completed.  The record is completely

silent about any communication sent around 20.03.2001 towards completion

of transaction.  As a matter of fact the first step thereafter was six months

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after the deadline namely on 22.09.2001 when the communication (Ex.A6)

was sent along with amount of Rs.10 lakhs.  The written submissions filed

on behalf of respondent No.1 also do not indicate any steps till this time so

as  to  say  that  he  was  all  the  while  ready  and  willing  to  complete  the

transaction.   

9.    The assertion made by respondent No.1 in paragraph 7 of the plaint

is a mere assertion without any relevant details as to what exactly he had

done  towards  fulfillment  of  his  obligations  and  completion  of  the

transaction.   The  factual  aspects  as  detailed  above  are  quite  clear  that

respondent No.1 had completely failed in his obligations and was not ready

and willing to perform his part of the contract.  Even going by the case set

up by respondent No.1, that around 29.07.2002 an arrangement was arrived

at,  under which out of  the balance amount Rs.19.5 lakhs,  Rs.  13.5 lakhs

were to be made over by respondent No.1 to the Bank directly and rest of the

sum of Rs.6 lakhs was to be paid to the appellant in cash, the facts do not

indicate any observance of these conditions.  Beyond filing an application

for impleadment which came to be dismissed, respondent No.1 did not take

any step.  The amount of Rs.13.5 lakhs was independently deposited and

discharge was obtained by the appellant.

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10. If respondent No.1 was put in possession of the suit property pursuant

to the arrangement as suggested by him, his corresponding obligation under

such arrangement was also twofold namely to pay off the dues to the Bank

directly and pay rest of the sum to the appellant.  There is nothing on record

which could be consistent with discharge of such obligation on the part of

respondent No.1.   

11. The case put up by respondent No.1 that he was put in possession

pursuant to an arrangement arrived at on or around 29.07.2002 is not free

from doubt.  In a matter where Rs.19.5 lakhs were still outstanding, it is not

possible to accept that the vendor may put the purchaser in possession when

the original agreement did not contemplate handing over of the possession

even  before  execution  of  the  sale  deed.   The  contemporaneous  facts

including the aspects that the appellant had initiated criminal proceedings

and made complaints to various authorities about forcible possession having

been  taken  by respondent No.1,  also indicate falsity in the claim of   

respondent No.1.  Be that as it may the basic issue is whether respondent

No.1 was ready and willing to perform his part of the contract which in our

considered view has to be answered against him.  We are conscious that two

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Courts  have arrived at  a  finding of  fact  but  in  our  view such finding is

completely opposed to and contrary to the facts on record and is completely

unsustainable.

12. We, therefore, reject the claim of respondent No.1 and hold that the

suit for specific performance preferred by respondent No.1 is required to be

dismissed.   At  the  same time we accept  the  counter  claim made by the

appellant and hold that he is entitled to recovery of possession.  It appears

that  the assertions in the counter  claim that  the Kalyana Mandapam was

fetching Rs.1,80,000/- per annum were not disputed or denied by respondent

No.1.  On the score that the appellant was wrongfully denied and deprived of

the earnings from Kalyana Mandapam for the last 16 years, he would be

entitled to  reasonable return.   But  at  the same time he had retained and

enjoyed sum of Rs.18 lakhs which he had received by way of advance from

respondent No.1.  In the circumstances, though we would direct refund of

the sum of Rs.18 lakhs, we further deem it appropriate to direct that in the

circumstances neither would respondent No.1 be entitled to any interest on

the sum of Rs.18 lakhs which was given by way of advances under the suit

agreement to the appellant nor would appellant be entitled to any sum by

way of mesne profits for last 18 years of wrongful possession of the suit

property by respondent No.1.  

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13. Allowing the appeal, we therefore direct:-

(a) The suit for specific performance filed by respondent No. 1 is

dismissed.  Respondent No.1 shall be entitled to the refund of sum of Rs.18

lakhs paid by way of advance under the suit agreement.  Said sum shall be

refunded  by  the  appellant  within  three  months  from  the  date  of  this

judgment.  No interest shall be payable on said sum.  However, if the said

sum is not paid within three months from today as directed, it shall carry

interest  @ 7½ per  cent  from the  date  of  expiry  of  said  period  of  three

months.  

(b) Counter  claim  preferred  by  the  appellant  is  allowed.

Respondent No.1 shall  deliver vacant and peaceful possession of the suit

property to the appellant within one month from the date of this judgment.

The appellant shall however not be entitled to any mesne profits in respect of

wrongful possession of the suit property by respondent No.1.

(c) The decree passed by the trial court and affirmed by the High

Court  stands modified accordingly.   Each party shall  bear  his  own costs

throughout.  

14. The appeals stand allowed in the aforesaid terms.  

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………………….J.                                           (R. Banumathi)

….……………….J. (Uday Umesh Lalit)  

New Delhi March 28, 2018