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Judgment
K.L. Manjunath, J.—The unsuccessful plaintiff has filed this appeal, being aggrieved by the judgment and decree dated 30-6-2010 passed by the II Addl. Senior Civil Judge, Mysore in OS No. 300 of 1995. For the sake of convenience, the parties would be referred to as per their status before the trial court.
Facts leading to this appeal are that: The plaintiff filed the suit declare that the tender notification dated 31-8-1995 published in the Kannada Prabha daily dated 4-9-1995 by the defendant as arbitrary, illegal null and void and also for a perpetual injunction, restraining the defendant from allotting the land in the possession of the plaintiff to any other person and that the plaintiff is entitled to continue to be in possession till the lease transactions are finalized under the deed dated 13-4-1994 and direct the defendant to hand over the entire 10 acres of land situated at Doddakere Maidan, Mysore. Alternatively, the plaintiff sought for refund of a sum of Rs. 4,68,750/-, which was paid towards earnest money deposit [EMD] by the plaintiff to the defendant in a sum of Rs. 5.00 lakh, after adjusting the rent payable by the plaintiff, and interest in a sum of Rs. 6.75 lakh till 15-9-2000 and thereafter at the rate of 24% p.a. on the principal amount of Rs. 4,68,750/-. The plaintiff has also sought for damages of Rs. 10.00 lakh by means of compensation.
According to the plaintiff, pursuant to the tender notification issued by the defendant, the plaintiff agreed to take 10 acres of land for establishment of an amusement park at Doddakere Maidan, Mysore, which is considered as Dasara exhibition place. According to plaintiff, it participated in the tender process and agreed to pay Rs. 5.00 lakh every year as rent for a period of 15 years. The offer made by the plaintiff was accepted and a draft lease deed was submitted by the plaintiff to the defendant and a sum of Rs. 1.50 lakh was deposited on 20-9-1994 towards previous year''s participation and also paid a sum of Rs. 2.50 lakh towards 50% of the rent to the defendant as demanded. Though the defendant agreed to execute a lease agreement leasing the premises for a period of 15 years, it was not materialized and the same was not executed. Plaintiff was allowed to use a portion of the area to use it as an amusement park. Later, a fresh short term tender notification was issued and the same was challenged by the plaintiff in the suit. At the first instance, the prayer was only to enforce the agreement and later on an amendment application was filed to seek an alternative prayer to refund the amount paid by the plaintiff.
The respondent filed a detailed written statement raising several contentions. In so far as refund is concerned, it was contended by the defendant that the claim made by the plaintiff was barred by limitation and the defendant is not liable to pay the same.
The trial court after framing necessary issues and considering the evidence let in by the parties, dismissed the suit, holding that the plaintiff is not entitled for relief of specific performance of the agreement and also the alternative prayer for refund of the amount was dismissed on the ground of limitation. Therefore, the present appeal is filed.
In this appeal, the appellant has restricted his claim only for the alternative prayer for refund of the amount deposited. Therefore, we have not traversed the entire pleadings, issues and evidence concerning the prayer for specific relief. Since the appellant is questioning the judgment and decree of the trial court in dismissing the claim on the ground of limitation, we have focused our attention only in respect of the said prayer.
The main contention of Sri G. Balakrishna Shastry, learned counsel for the appellant-plaintiff, is that the trial court has committed an error in holding that the plaintiff has not paid the EMD of Rs. 5.00 lakh. According to him, the trial court also committed an error in dismissing the suit on the ground the same was barred by limitation. According to him, though the suit was filed in the year 1995 the plaintiff had not sought for relief of refund of EMD, subsequently, an application came to be filed under Order VI Rule 17 CPC for amending the plaint, which application came to be allowed without any restriction. According to him, when the amendment application has been allowed, such amendment would relate back to the date of presentation of the suit, and since the suit was filed in the year 1995 challenging the notification issued in the year 1994, the same could not have been dismissed as barred by limitation. Therefore, he requests the court to allow the appeal and set aside the judgment and decree of the trial court.
Sri A. Nagarajappa, learned counsel for the respondent-defendant, submits that, at the first instance, the appellant has failed to prove that it had paid Rs. 5.00 lakh towards EMD. According to him, the trial court has held that Rs. 1.50 lakh was paid by the appellant towards the previous year''s demand and that the appellant had not paid Rs. 5.00 lakh. He further contends that since the amendment application was allowed in the year 2000, the same is barred by limitation. He further submits that the appellant is also liable to pay ground rent payable by it to the area in possession. In the circumstances, he requests the court to dismiss the appeal.
Having heard the learned counsel for the parties, the following points are to be considered by this court:
a) Whether the suit filed by the plaintiff seeking refund of advance amount was barred by time?
b) Whether the plaintiff proves that it had paid an EMD of Rs. 5.00 lakh and if so, whether it is entitled to claim interest at the rate of 24% p.a. on the said amount?
c) Whether the respondent is entitled to forfeiture of the amount paid by the plaintiff towards lease charges?
The facts are not in dispute to the effect that the appellant was a lessee in pursuant to the notification issued by the respondent and that it was doing business for a short period. Since the main relief is not granted to the plaintiff-appellant and as the appellant is also not pressing this prayer, the question is what was the EMD paid by the plaintiff and whether the prayer for refund of the said amount is barred by time?
In so far as the payment of EMD amount is concerned, no positive evidence is let in by any of the parties to show that the plaintiff has paid Rs. 5.00 lakh as EMD. The trial court has held that Rs. 1.50 lakh paid by the plaintiff was towards past demand of lease rent. Since the respondent is an authority under the control of the state government, no payment can be made by cash. It is also not the case of the plaintiff that the amount was paid in cash. When the amount is paid through a negotiable instrument, there was no difficulty for both parties to place material to show the actual amount paid towards EMD. Similarly, we have also noticed that the defendant has not placed any material to show what was the arrears payable towards the lease rent and if the rents are not paid, whether the defendant is entitled to seek deduction out of the amount paid by the plaintiff towards EMD?
In so far as the limitation is concerned, as rightly pointed out by the learned counsel for the appellant-plaintiff when once the amendment is allowed, it relates back to the date of presentation of the suit. If the trial court while allowing the application for amendment had held that the amendment would be prospective and not retrospective in nature, we would have appreciated the findings of the trial court. When such a contention is not urged by the defendant, we cannot justify the judgment and decree of the trial court to hold that the demand for refund was barred by time. Therefore, the finding of the trial court on the question of limitation is to be set aside.
In so far as the payment of EMD and the claim of the defendant towards lease amount are concerned, the same is required to be reconsidered by the trial court afresh. Similarly, the trial court is also required to find out the rate of interest payable, if at all the plaintiff is entitled for refund of the EMD. Since these matters are not considered properly by the court below, we have no other option but to set aside the judgment and decree passed by the trial court and remand the matter for fresh consideration in accordance with law. In the result, the appeal is allowed in part and the judgment and decree dated 30-6-2010 passed in OS No. 300 of 1995, on the file of II Addl. Senior Civil Judge, Mysore is hereby set aside and the matter is remanded to the trial court to consider the alternative prayer for refund of the EMD amount. Both parties are at liberty to lead evidence and the trial court is directed to dispose of the suit within six months from today. In view of the order of remand, the appellant-plaintiff is entitled for refund of court fee as per rules. Both parties should appear before the trial court on 27-1-2014 without any further notice. Registry is directed to send the lower court records forthwith.