R.L. Gupta vs Swai Ram (deceased) represented by L.R.'s

D.V. Sehgal, J.—Reply to the application has been filed. The prayer made in this application is that a decree for a sum of Rs. 60,000/- which the Respondent himself admitted to have received from the Appellant as earnest money should be passed in favour of the Plaintiff-Appellant. It is further stated that he gives up the claim for specific performance of the agreement to sell if decree to the above effect is passed in his favour.

Reference to the judgment and decrees of the Courts below make it evident that the Defendant-Respondent in his written statement admitted that he had received a sum of Rs. 60,000/- from the Appellant as part payment under the aforesaid agreement. Issue No. 2 was framed by the trial Court to the effect "whether the Plaintiff paid a sum of Rs. 1,00,000.00 as earnest money". The finding returned on this issue is that he had paid a sum of Rs. 60,000/- only to the Respondent which fact is not disputed by the latter.

In view of the above position it is evident that the Appellant is entitled to grant of decree as prayed for by him. I, therefore, partly allow this appeal and decree the suit in favour of the Appellant and against the Respondent for recovery of Rs. 60,000 with proportionate costs. His prayer for decree for specific performance is declined. The Appellant shall be entitled to grant of future interest at the rate of 10 percent per annum from the date of this decree till the date of recovery of the decretal amount by him from the Respondent.