A.H. Joshi, J.
1. The appellants herein had filed a suit for specific performance. While granting the decree in favour of the appellants, the Trial Court gave a direction in paragraph No. 4 which consisted an interest clause which has aggrieved the plaintiffs. Said order clause in paragraph No. 4 reads as follows:
4. The plaintiffs are hereby directed to deposit the amount of Rs. 95,000/- along with interest thereon at the rate of 12% p.a. from January 1995 till the date of deposit, within one month in Court. On effecting the transfer in the name of plaintiffs, this amount shall be released in the name of defendants.
2. The appellants proceed on admitted fact that the sum ordered to be paid i.e. the sum of Rs. 95,000/- is due and payable by them. They, however, claimed that there is no liability to pay interest. This denial is based on the contents of the agreement to sell. Xerox copy of agreement of sale Exh. 29 is on record. It is seen that it being admitted, original is not insisted.
3. Admittedly, subject matter of suit is a house property. It is on a plot located within the area developed by CIDCO which is a new town authority under the provisions of the Maharashtra Regional and Town Planning Act. It is a common ground that whenever any house in occupation duly allotted by CIDCO is sought to be sold, it is to be sold, after prior transfer procedure and certain transfer fees and charges etc. being paid to the CIDCO. It could be a matter of covenants between the parties as to who shall pay the same. Admittedly in the present case, the defendants were supposed to pay that amount.
4. The agreement also provides that:
(i) The unpaid consideration will be paid at the time of effecting the transfer in the name of the purchaser.
(Vernacular matter is omitted - Ed.)
(ii) It further provides that registered sale deed or transfer document, if any, if desired by the purchaser, will be executed by the vendor for which expenses to the extent of 1/4th will be borne by the vendor.
(Vernacular matter is omitted - Ed.)
5. On perusal of the agreement, it is not seen that any order of performance is prescribed. It is however obvious that the vendor and buyer will be required to submit some documents such as applications, affidavits etc. to the CIDCO. It is not the plaintiffs case that this compliance was not done by the defendants. On the other hand, Exhs. 43 and 44 which are copies of affidavits submitted by the parties, showing that such affidavits are already submitted on 23-12-1994 or some time around that. It is seen from these documents that certain compliance which was required to be done on the part of the vendor was duly done. The CIDCO authorities were thereafter required to intimate or calculate and inform the vendor and buyer, after enquiry or otherwise, as to what shall be the amount of transfer charges and said amount will then have to be paid to CIDCO by the vendor. It is not the plaintiffs case either in the plaint or oral evidence that such calculation was done, was intimated to the vendor by CIDCO and/or after collecting information from CIDCO by the purchaser. Thus in the sequence of order of performance of reciprocal promises, the eventuality-contingency of payment of transfer charges has not occurred.
6. The payment of transfer charges is a contingency which has to take place only upon CIDCO's calculation and demanding the said amount or either of the party's ascertaining the assessed amount and then the vendor had to pay it. Unless this eventuality occurres, it would not be open for the plaintiffs to say that since that amount of transfer charges was not paid, their liability to pay the balance - unpaid consideration price had not accrued. In fact, the unpaid consideration would become due no sooner the affidavits in support of application are furnished to CIDCO for supporting the request for transfer of rights.
7. In this background that the finding of the Trial Court that while the decree for specific performance was liable to be granted, there was no justification on the part of the plaintiffs to have not tendered the balance/ unpaid consideration, is based on sound reasons.
8. Nobody, would be entitled in law to derive undue advantage or unfair enrichment which in fact plaintiffs were deriving by retaining balance consideration and at the same time, enjoying the possession and use of suit house. In these circumstances, the decree passed by the Trial Court can not be faulted as unjust or illegal.
9. In civil law, unless the decree of Trial Court is shown to be erroneous vis-a-vis the rights of the parties or provisions of law, there can would be no ground available for setting aside the decree just for asking, on the ground that somebody has preferred an appeal being dissatisfied with the decree. It is only after observing the conduct of parties, their tenor and behaviour before the Court, the Trial Court reaches a conclusion of passing a decree. The Trial Court is always a final Court of facts, unless the decree is shown to be erroneous, illegal or otherwise grossly improper, shocking or otherwise wholly unsustainable.
10. In the circumstances, appeal has no merit. The same is dismissed. Parties shall bear respective costs.