P.S. Narayana, J.
1. Facts in Brief:
The unsuccessful plaintiff who could not get the relief of the Specific performance of the agreement of sale in question, at the hands of the learned Subordinate Judge, Kovvur in O.S.No. 107 of 1987, had preferred this appeal.
2. The respondent in the appeal who is the defendant in the suit, aggrieved by that portion of the decree ordering refund of Rs.42,500/- with some interest, had preferred the cross-objections raising several grounds.
3. The learned Judge on respective pleadings of the parties, on appreciation of the evidence of P.Ws. l and 2, D.Ws. l to 3 and Exs.A. l to A-8, came to a conclusion that the appellant as plaintiff had not approached the Court with clean hands and a person approaching the Court with a false version is not entitled to the relief of the Specific Performance and accordingly, negatived the same. However, principally, on the strength of Ex.A-8, in which the rest of the amount payable had been specified by the respondent-defendant on a mathematical calculation, the learned Judge came to a conclusion that it may have to be implied that the respondent, defendant had received Rs.42,500/- and accordingly, the decree was passed for refund of the same with interest thereon. Both the parties aggrieved by the judgment and decree and the findings recorded by the learned Judge had preferred the appeal and cross-objections as well.
4. Submissions of Sri K. Sarva Bhouma Rao : Sri K. Sarva Bhouma Rao, the learned Counsel representing the appellant as plaintiff initially pointed out to A.S.M.P. No. 267 of 2006 praying the relief to amend the plaint in O.S. No. 107 of 1987 and also pointed out to A.S.M.P. No. 370 of 2006 an application filed under Order 41 Rule 27 C.P.C. to receive the sale agreement dated 15-8-1983 as additional evidence. The learned Counsel would maintain that though the production of the sale agreement dated 15-8-1983 may not be necessary, in the light of certain findings recorded by the learned Judge, and also in the light of the reasons which had been narrated in the affidavit filed in support of the application, it may be just and proper to receive the same as additional evidence. The learned Counsel also would maintain that it is no doubt true to say that specifically the alternative relief had not been prayed for before the original Court but, however, a decree was made for a particular sum with interest thereon. The learned Counsel would maintain that on the ground of equity, the learned Judge directed the refund of the amount. But, however, inasmuch as specific cross-objections had been preferred and the grounds had been specifically raised, amendment of the relief claiming alternative relief also had been filed.
5. The learned Counsel also while further making the submissions would contend that the proof or otherwise of the payment under the Negotiable Instruments Act, the promissory note in question, is of no consequence at all and it should be taken as if the full payment had been made. The Counsel had also explained the relevancy of Exs.A. 4 and A. 5 in the context of the payment towards the other agreement, which is being produced and the said agreement came into existence to ensure the payment. The learned Counsel would also submit that the very fact that no suit has been filed in relation to the promissory note in question would go to show that the stand taken by the appellant-plaintiff is the correct stand. The learned Counsel also would maintain that the recitals in the agreement of sale itself, are explanatory. When the payment of consideration had been specified, no further proof is necessary. In view of the same, the discretion to be exercised in granting specific performance in accordance with the settled principles, but not in an arbitrary manner. The learned Counsel would also maintain that this Court as appellate Court can rectify the said finding and definitely grant the principal relief of specific performance itself. However, in the alternative, the learned Counsel would submit that even otherwise in the light of the evidence available on record, inasmuch as the recitals of Ex.A.1 being self explanatory and even if the refund is ordered, the total amount specified is to be ordered by way of refund, but not a part of the consideration relying upon Ex.A. 8. The learned Counsel also would maintain that inasmuch as the relief of refund of consideration being only an alternative relief or ancillary relief, when the Court fee was paid on the principal relief, no separate Court fee need be paid and in the light of the facts and circumstances, either the principal relief of specific performance is to be granted or at least the relief granted by the learned Judge is to be modified by granting the refund of the total consideration received by the defendant under Ex.A.1 with interest thereon.
6. Submissions of Sri M.V. Durga Prasad :
Sri M.V. Durga Prasad, the learned Counsel representing the respondent-defendant and also the Cross-objector had taken this Court through the allegations made in the plaint and also the inconsistent stands taken relating to the debt in the context of the promissory note. The learned Counsel would maintain that in the absence of proof, it cannot be taken that the promissory note had been discharged, The learned Counsel had taken this Court though the chief-examination of P.W. 1 and also the cross-examination of D.W. 1, as to the absence of any evidence in relation to either the counter agreement or the endorsement and also non-cross-examination of D.W. 1 at least by putting a suggestion in this direction. The learned Counsel also would maintain that Ex.A.8 is no doubt a reply. The alleged payment cannot be taken as a payment unless it is clear and explicit admission for granting of decree on the strength of Ex.A. 8, the finding by the learned Judge, is definitely unsustainable. The learned Counsel also pointed out as to the date of filing of cross-objections and also as to the discrepancies in the evidence of P.W. 1. The learned Counsel would maintain that there is no factual foundation in this regard. While further elaborating the submissions, the learned Counsel would also maintain that that the agreement which is being produced by way of additional evidence here, is not a necessary document. There is no point in invoking the provisions of Order 41 Rule 27 of Civil Procedure Code. Even otherwise, this document may not help the case of the plaintiff in any way. The Counsel while further elaborating the submissions had taken this Court through Sections 22 and 23 of the Specific Relief Act, 1963 and also Section 6(2) and Section 39 of the A.P. Court Fee and Suits Valuation Act, 1956. The learned Counsel further would maintain that this relief which is being prayed for in the amendment application, has to be construed as a substantive relief and the same cannot be styled as an alternative relief or ancillary relief and in that view of the matter, inasmuch as the claim is barred by limitation under the guise of the amendment, the same cannot be introduced at present. The learned Counsel also would submit that ordering interest is not justified. The same is illegal and it cannot be decided on the point of equity. The learned Counsel would maintain that for sufficiently long time, the appellant-plaintiff had been in possession of the property and having derived that advantage, he cannot be given any benefit of interest also on the amount in the event of the refund of some amount being ordered by this Court. The learned Counsel would further comment that Exs.A. 4 to A. 6 are unrelated to the transaction in question. The learned Counsel pointed out to the evidence of PW. 2, the scribe of all the documents in relation to this payment. The Counsel would maintain that the corresponding receipts are not there. The Counsel had drawn the attention of this Court to Exs.A. 3 and A. 7 and the evidence of D.W.1 in relation to Ex.A. 3. While concluding, the learned Counsel would submit that inasmuch as the circumstances under which Ex.A.1 came into existence had been explained and specific plea was taken denying the payment of Rs. 58,000/-and since the plaintiff was unsuccessful in discharging the burden, at the best, the only relief that can be granted is in relation to Rs. 10,000/- advance amount which had been paid under Ex.A.1. The Counsel also would maintain that at any rate, the mathematical calculation arrived at by the learned Judge by taking the alleged admission under Ex.A. 8 also cannot be sustained in the facts and circumstances of the case. The Counsel also placed reliance on certain decisions to substantiate his contentions.
7. The parties hereinafter are referred to as arrayed in the original suit for the purpose of convenience.
8. Points for consideration :
In the light of the rival submissions made by both the Counsel, the following points for consideration arise in this appeal and the cross-objections as well.
1. Whether the plaintiff is entitled to the relief of Specific performance on the strength of Ex.A.1 in the facts and circumstances of the case ?
2. Whether the application in A.S.M.P.No. 370 of 2006 filed under Order 41 Rule 27 C.P.C. be allowed or dismissed in the circumstances of the case
3. Whether the plaintiff is entitled to the alternative relief of refund of the amount ?
4. Whether the application in A.S.M.P.No. 267 of 2006 praying for amendment of plaint to introduce the alternative relief of refund to be allowed or dismissed in the circumstances of the case ?
5. If so, to what relief the parties would be entitled ?
9. Points 1 and 2 :
The plaintiff filed the suit for the relief of specific performance of agreement of sale deed 15-8-1983 marked as Ex.A.1. The plaintiff pleaded in the plaint as hereunder :The defendant who is the owner of the plaint schedule agricultural land having offered to sell it to the plaintiff for Rs. 68,000/-executed an agreement of sale in his favour on 15-8-1983. On the date of execution of the agreement of sale, plaintiff paid Rs. 10,000/- to her as advance, and executed a pronote in her favour for the balance sale price of Rs. 58,000/- and he was put in possession of the suit schedule property on the same day. It was agreed that the defendant should execute a sale deed in favor of the plaintiff as and when he demands for the same. At the same time, the plaintiff was made to execute an agreement in favour of the defendant and her husband as if he was selling Ac. 1.50 cents of land for Rs. 35,000/- and this, was executed only to see that the amount for which the promissory note has been executed is duly paid. Subsequently, the plaintiff paid the amounts on 6-7-1984, 14-7-1984, 16-7-1984 and 31-7-1985 in full and thus paid away the entire consideration. He also obtained endorsement on the agreement of sale executed by him in favour of the defendant and her husband that the amount has been fully paid by him, and the agreement is cancelled. When the defendants' brother tried to interfere with plaintiffs possession over the suit land he filed O.S. No. 616/83 against him on the file of District Munsif Court, Kowur for injunction and obtained injunction orders. Having received the entire consideration, the defendant failed to execute a sale deed in his favour inspite of repeated demands. Hence he issued a notice to her on 9-5-1987 through his advocate demanding her to execute a sale deed. But she gave a reply admitting the execution of suit agreement of sale and denying the receipt of balance of sale price on various dates with a view to cause trouble to the plaintiff she issued that reply notice with false allegations. The plaintiff has always been ready and willing to perform his part of the contract and he even improved the land by spending huge amount. Hence the suit.
10. The defendant filed a written statement pleading as hereunder :
The defendant admitted the execution of the agreement of sale in question and also receiving an amount of Rs. 10,000/-under it but had denied the other allegations. The defendant also further pleaded as follows:It is true that this defendant who is the owner of the suit land entered into an agreement of sale with the plaintiff agreeing to sell it to him for Rs. 68,000/- and received Rs. 10,000/- from him as advance. It is also true that the plaintiff executed a promissory note in favour of this defendant for the balance sale price Rs. 58,000/-. It is false to allege that subsequently he paid away the balance of sale price and he was put in possession of the property. He has to pay the balance of sale price of Rs. 58,000/- within three months from the date of pronote and then obtain a sale deed in pursuance of the agreement. It is false to allege that the plaintiff executed an agreement for Ac. 1.50 cents in favour of this defendant and her husband to see that the pronote amount is promptly discharged. The part payments dated 6-7-1984, 14-7-1984, 16-7-1984, 31-7-1984 are all not true. This defendant never passed a receipt in his favour for the amounts allegedly paid. Those receipts are rank forgeries. The plaintiff did not pay the entire amount due under the pronote to this defendant and as such he is not entitled for the specific performance of agreement of sale. It is true that the plaintiff filed a suit for permanent injunction against the brother of this defendant for the suit land. At the time of filing of the suit he obtained the signature of this defendant on two white papers representing that those papers are necessary for obtaining temporary injunction. He is yet to return them. The plaintiff filed this suit with the connivance of one Paramahamsa of Yernagudem who might have invented the alleged receipts. The attestors are close associates of the plaintiff. As the plaintiff could not pay the balance of sale price of Rs. 58,000/- this defendant placed the matter before elders like Gade Venkata Ramarao of Yernagudem in the month of July, 1985, and he ultimately settled the dispute and he directed the plaintiff to pay Rs. 8,000/- immediately and for Rs. 25,500/- he has to execute pronote in favour of this defendant. At the request of this defendant, the plaintiff executed a pronote in favour of her sisters Pinnamaneni Dhanalakshmi and V. Durga. The plaintiff who was afraid to deliver the pronote to either this defendant or her sisters requested the mediators to keep it in their custody till payment is made. He undertook to pay the amount within three months from the date of execution of these pronotes. Subsequently, he did not do so. This defendant learnt that the mediator colluded with the plaintiff and got the suit filed. The plaintiff has not paid even Rs. 8,000/- which was directed by the mediators at the time of settlement. Thus, he has to pay Rs. 8,000/- and Rs. 25,500/- to the defendant making a total of Rs. 33,500/- with interest. Unless, it is paid he is not entitled for the relief asked for. This defendant is reserving her right for collecting the unpaid sale consideration. Hence, the suit may be dismissed with costs.
11. On the strength of the pleadings, the learned Judge had settled the following issues :
1. Whether the plaintiff has paid the entire sale consideration payable under the suit agreement to the defendant ?
2. Whether the plaintiff is entitled for specific performance of the contract of sale dated 15-8-1983 ?
3. To what relief ?
12. PWs. l and 2 were examined and Exs.A. l to A.8 were marked on behalf of the plaintiff. D.Ws.l to 3 were examined on behalf of the defendant. No exhibits were marked on behalf of the defendant. The learned Judge recorded reasons in detail and ultimately decreed the suit for Rs. 42,500/- with interest thereon at 18% from the date of the suit i.e., on 17-7-1987, till the date of realization with a direction that charge has to be created for the said amount in favour of the plaintiff over the plaint schedule property.
13. P.W. 1 had deposed that he purchased the property under an agreement of sale dated 15-8-1983 from the defendant for a sum of Rs. 68,000/- and she executed Ex.A.1 agreement in his favour and on the date of execution, he paid Rs. 10,000/- as advance and executed pronote for balance amount of Rs. 58,000/- in her favour and he discharged the said pronote debt subsequently and she inducted him into possession of a suit pronote on the date of Ex.A.1 itself. Ex.A.2 is the pronote executed by him. Ex.A.3 is the discharge endorsement of the defendant. Exs.A.4 to A.6 are the payment receipts issued by the defendant. Ex.A.7 is the registered notice. Ex.A.8 is the reply notice. This witness in the cross-examination deposed that the defendant is the daughter of his elder brother and his elder brother has one son by name Satyanarayana and they quarrelled with each other in 1983. P.W. 1 further deposed that the schedule land was gifted to the defendant by her father under a settlement deed. Under those circumstances, she executed the contract of sale in his favour. On the date of agreement, he paid Rs. l0,000/- as earnest money and executed a promissory note for a balance of Rs. 58,000/- in favour of the defendant. He had deposed in detail about the discharge of the sum of Rs. 58,000/- in six installments and the other details.
14. PW. 2 is the scribe who had deposed that the defendant executed Ex.A.1 agreement of sale in favour of the plaintiff. It is not true that the consideration mentioned in it was not paid to her. This witness also admitted that he has scribed Exs.A. l to A. 4 and that on the date of execution of Ex.A. 1, a sum of Rs. l0,000/-was paid to the defendant. This witness was cross-examined at length in relation to Exs.A. 2 to A. 4. This witness deposed several details and had denied several other suggestions put to him in regard to the documents scribed by him.
15. As against this evidence of PWs. l and 2, the evidence of D.W. 1 is available. He deposed that this property was given to her by her parents as Stridhana property and she sold it to the plaintiff under an agreement of sale under Ex.A. 1 for Rs. 68,000/- and that on that date, the plaintiff paid Rs.l0,000/- to as advance and the plaintiff is her father's elder brother. The disputes arose between her and her elder brother. She also deposed that the plaintiff never executed the pronote in her favour for the balance amount of Rs. 58,000/- and he had not issued Ex.A. 3 receipt and the signature in the said document was denied. She also deposed that in her presence, nobody attested Ex.A. 3. The signature on Ex.A. 4 receipt also was denied. The signatures in Exs.A. 5 and Ex.A. 6 receipts were also specifically denied by D.W. 1. This witness also deposed that the plaintiff and her elder brother and P.W. 2 colluded together and brought into existence these receipts. No doubt, in the cross-examination, this witness deposed that it is true that she executed Ex.A. 1 agreement in favour of the plaintiff and the contents of Ex.A. 1 are true. However, this witness deposed that the signature under Exs.A. 4 to 6 are not that of this witness. This witness, no doubt, denied certain suggestions.
16. D.W. 2, no doubt, deposed that in his presence, the plaintiff never paid the amount to the defendant and the defendant had not signed in any receipt acknowledging the payment. The signatures in Exs.A. 2 to A. 6 are that of this witness. The Village Karanam is his friend and he will be going to his house frequently and he has taken his signatures on the blank papers. This witness no doubt was cross-examined.
17. D.W. 3 had deposed that the plaintiff is his elder brother and the defendant is his daughter and he had given Ac.3.00 of land to the defendant towards pasupukunkuma and he does not know anything about the disputes pending between P.W.1 and his daughter with regard to the land and he has no knowledge about the purchase of the suit land by P.W. 1 under Ex.A.1. The signature shown to him in Ex.A. 1 is not that of the signature of this witness and he never signed it and in his presence, no amount was paid by P.W. 1 to the defendant and no document was also executed in his presence. He does not know D.W. 2 and P.W. 2. The signatures in Exs.A. 3 to A. 5 are not that of this witness and his son is not living with him. This witness was cross-examined and certain suggestions put to him were denied. This is the evidence available on record.
18. As can be seen from the oral and documentary evidence available on record, it is clear that the parties are closely related. It is not doubt true that a promissory note had been introduced.
19. The learned Judge recorded the reasons in detail and also came to a conclusion that the receipts produced have no relevance and the other agreement had not been produced thereby, disbelieved the stand taken by the plaintiff in this regard and recorded findings in detail. But no doubt, an application is moved before this Court to receive the sale agreement dated 15-8-1983 executed by the plaintiff in favour of the defendant as additional evidence. The said application is resisted by filing a counter-affidavit in detail. As can be seen from the averments made in the affidavit filed in support of the application, none of the conditions specified under Order 41 Rule 27 of the Code are satisfied. Strong reliance was placed on a decision reported in Mahavir Singhi and Ors. v. Naresh Chandra and Anr. AIR 2001 SC 134, wherein the Apex Court held that in respect of taking additional evidence, the conditions and limitations as stipulated under Order 41 Rule 27 C.P.C. have to be satisfied.
20. In view of the fact that none of the conditions specified under the said provision are satisfied, this Court is not inclined to grant permission to receive additional evidence at this stage. The said application is hereby dismissed.
21. In a suit for specific performance, it is needless to say that it is a discretionary relief. Here is a case where the close relatives are fighting the litigation. The unfortunate lady, the defendant who was placed under peculiar circumstances as explained by her thought it fit to enter into this transaction most probably since she had some problem from her brother and other kith and kin as well. Undisputedly, the other relatives were not interested and for that reason, the defendant intended to part with the property. Though certain receipts were produced before this Court, no explanation had been offered by P.W. 1. That is the reason why, detailed reasons had been recorded in relation to Exs.A.4 to 6. Exs.A. 2 and A. 3 promissory note and discharge endorsement had been disbelieved by the learned Judge.
22. Be that as it may, for want of clear proof, the learned Judge came to a conclusion that plaintiff had not approached the Court with true version or at any rate, he was unable to establish that the total consideration payable under Ex.A. 1 as averred by him, had been paid or established by placing acceptable evidence before the Court. Hence, the learned Judge though that the discretionary relief of the specific performance cannot be granted in the circumstances of the case. This Court is of the considered opinion that taking over all the facts and circumstances, the learned Judge arrived at the correct conclusion in negativing the relief of specific performance and therefore, the same need not be disturbed by this Court especially keeping in view the evidence of P.W. 1 and D.W.1 and also in view of the fact that the parties are close relatives. Accordingly, the said findings are hereby confirmed.
23. Point Nos. 3 and 4 :
The next question which had been argued in elaborate is in relation to the cross-objections which had been filed questioning the granting of relief of refund. An application in I.A. No. 267 of 2006 is moved before this Court praying for alternative relief of refund, in case this Court is not inclined to grant the relief of specific performance. The said application is seriously opposed by filling counter-affidavit in detail. As can be seen from Section 22 of the Specific Relief Act, 1963, in a case of this nature, whatever the stage may be, when an alternative relief is prayed for, the Court may have to allow such prayer. It is also pertinent to note that the learned Judge on the facts and circumstances of the case granted the relief of refund as to the specified portion of the consideration in the light of Ex.A. 8, but, in order to avoid the same, the defendant as cross-objector has thought of filing the cross-objections, raising these objections.
24. It was contended that in the light of Section 39 of the A.P. Court Fee and Suits Valuation Act, 1956, this relief being specific relief, not being an alternative or ancillary one, unless separate Court fee is paid, such relief cannot be granted. This contention cannot hold water for the reason that the main relief is specific performance and this relief of refund is only an alternative relief always. When the Court fee is paid on the main relief, it is needless to say that no separate Court fee need be paid on such an alternative relief. In the light of clear language of Section 22 of the Specific Relief Act, 1963 this Court is of the considered view that at the appellate stage, the application praying for amendment has to be allowed and accordingly, A.S.M.P. No. 267 of 2006 is hereby ordered.
25. The learned Counsel also relied on a decision reported in Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors : [1987]1SCR458 .
26. Inasmuch as, the application praying for the amendment of the relief portion, by introducing the alternative relief is being allowed by this Court, the question which may have to be decided is as to whether the refund of the total amolint has to be granted or the refund of the, amount which had been granted by the trial Court has to be confirmed or whether only the refund of Rs. 10,000/- as admitted by D.W. 1, has to be granted in the facts and circumstances of the case.
27. The question which had been argued in elaboration is that granting of interest in unjust especially in view of the fact that sufficiently for a longtime, the plaintiff had been in possession of the property. As already referred to supra, with regard to the transaction as to the promissory note in question, the same had been disbelieved by the learned Judge for the reasons which had been recorded in detail and the said findings had been confirmed while answering the points 1 and 2 supra.
28. Ex.A.8 is the reply given by the learned advocate for the defendant. No doubt, the material allegations were denied. Specific stand was taken that the plaintiff had not paid the entire sale consideration and the said stand is a false one. However, for the reasons best known in Para 3, it was specified that :
Your client has no right to demand our client to execute sale deed unless the balance of consideration is paid to our client. Therefore, our client hereby requests your client to stop all unnecessary proceedings and further requests your client to pay Rs. 25,500/- with interest immediately. Else our client will take appropriate legal proceedings for the recovery of the said amount with interest.
29. On the strength of this Ex.A. 8, certain mathematical calculations had been done and a figure had been arrived at by the learned Judge. The learned Counsel for the cross-objector had contended that this cannot be taken as an admission within the meaning of Section 18 of the Indian Evidence Act for the reason that it is only a reply notice unsigned by the party in question and even otherwise, there is no effective cross-examination in relation to these aspects when D.W.1 was in the witness box and therefore, the same cannot be relied upon.
30. As can be seen from the material available on record and also in view of the fact that there is close relationship between the parties, the truth appears to be in between or via media. Hence, this Court is of the considered view that the plaintiff is not coming up totally with a true version.
31. Equally, the defendant is not coming before this Court totally with true version. In such a case, most probably, the learned Judge thought that on appreciation of the overall material available on record and on the ground of equity, it would be just and proper to order refund of Rs. 42,500/- and accordingly, the decree was granted by the Court below to that effect. Had it been the stand of the defendant having denied the receipt of total consideration, the question as to what had prompted her to take a specific stand of payment of the remaining consideration of Rs. 25,500/-, is a matter which needs serious consideration.
32. In the light of the facts and circumstances, the learned Judge came to the conclusion that certain payments were made. However, the stand taken by the plaintiff that the total amount of Rs. 58,000/-covered by promissory note had been discharged in six installments, had not been proved. The stand taken by the defendant may be in the background of the close relationship between the parties, but, the amount which would have been received by her, would be Rs. 42,500/-. This circumstances is a clear probability and the same has to be accepted in the present case. Hence, the stand taken by the learned Counsel for the cross-objector that only the refund of Rs. 10,000/- has to be ordered, cannot be sustained and in the light of the facts and circumstances, the refund of the amount of Rs. 42,500/- which had been ordered by the learned Judge, cannot be found fault. The matter does not stop there. On the material available on record, it is clear that the plaintiff, for sufficiently a longtime, had enjoyed this property being in possession of the property. However, subsequent thereto, it is brought to the notice of this Court that the defendant came into possession of the property. The picture is not clear. Be that as it may, this Court is not inclined to express any further opinion on that aspect. However, the fact remain that at present, the defendant appears to be in possession of the plaint schedule property. In view of the close relationship between the parties, when the plaintiff had taken undue advantage of his possession, being a close relative and taking advantage of the fact that his brother's daughter was not well with the other kith and kin and having entered into the transaction and having been in possession of the property, both on the ground of equity and also in law, this Court is of the considered opinion that such party cannot derive additional advantage of having any interest over the refund which is being ordered by this Court. Hence, the findings recorded by the learned Judge relating to the refund of Rs. 42,500/- no doubt, are hereby confirmed. But, however, the relief as to the granting of interest at 18%, is hereby set aside.
33. It is made clear that the plaintiff is entitled to the refund of an amount of Rs. 42,500/- only without any interest whatsoever in the facts and circumstances of the case.
34. Accordingly, the relief of refund of the consideration of Rs. 42,500/- simplicitor is hereby ordered by this Court. The judgment and decree of the Court below are modified to the said limited extent.
35. Point No. 5 :
Accordingly, the judgment of the lower appellate Court is partly modified with regard to the interest portion. Accordingly the cross-objections are partly allowed to the extent of negativing the relief of interest portion alone. In all, the other respects the findings are hereby confirmed and the refund of Rs. 42,500/- to the plaintiff-appellant is hereby ordered.
36. In the result, the appeal is dismissed and cross-objections are partly allowed to the extent indicated above. No order as to costs.