26-FA-36-2011 (C).DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 36 OF 2011 Shri. Harakchand Gulabchand Dhoka ...Appellant Versus Sou. Pushpa Kashinath Marathe & Ors. ...Respondents __ Mr. Janay Jain a/w. Rishabh Jadhav i/b. Parinam Law Associates for the Appellant Mr. Tejesh Dande a/w. Mr. Sarvesh Deshpande, Mr. Bharat Gadhvi, Mr. Aniket Shitole, Mr. Pratik Sabrad and Ms. Tanishka Chavan for the Respondent. __ CORAM : ARIF S. DOCTOR, J. DATE : 1st SEPTEMBER 2026 P.C. 1. On the previous occasion the Court noted as follows, viz. “1. Today, Mr. Dande has taken a very fair stand by not contesting the claim for refund. He has only requested the Court to place the matter next week to enable him to compute the relevant figure and submit the same. 2. At his request, stand over to 24th August 2026 (HOB).” 2. Mr. Dande, learned counsel appearing on behalf of Respondent Nos. 1(B) and 1(C), has, today, tendered a computation of the amount which, according to him, would have Basavraj Page| BASAVRAJ GURAPPA PATIL Digitally signed by BASAVRAJ GURAPPA PATIL Date: 2026.09.03 14:38:17 +0530 26-FA-36-2011 (C).DOC to be refunded to the Appellant. He submitted that interest has been computed at the rate of 6% per annum. In support of why interest at the rate of 6% per annum has been computed, Mr. Dande has placed reliance upon the decision of this Court in Abhinav s/o. Gopal Agrawal Vs. Pradeep s/o. Parasram Thakre1 which he points out, in paragraph 11 thereof, noted as follows: ““11. The law, discussed above, would settle the position. It is clear that under section 34 of Code of Civil Procedure, the Court has no discretion to grant interest at the rate exceeding 6% per annum and from any date prior to the date of filing of suit, unless the transaction between the parties to the suit is commercial in nature, or there is express or implied agreement between the parties or there is some statutory provision or there is a mercantile usage duly proved justifying pre-suit interest and at higher rate.”” 3. Mr. Dande submitted that, in the facts of the present case, the Suit was founded upon an alleged oral agreement for sale, of which specific performance was sought. He pointed out that there was neither any agreed rate of interest between the parties nor any evidence on record to establish a commercial rate of interest exceeding 6% per annum. He, therefore, submits that the computation tendered by him, calculating interest at the rate of 6% per annum, is correct. 1 2013 SCC OnLine Bom 1532 Basavraj Page| 26-FA-36-2011 (C).DOC 4. Mr. Dande also then invited my attention to the findings of the Trial Court viz. “58) Here in the present suit, plaintiff failed to prove that amount of Rs. 19,51,000/- is paid towards the consideration of agreement in between him and defendant. It has been held in Balasaheb Dnyandeo Naik. (Dead) through Lrs. & Ors. Vs. Appasaheb Dattatraya Pawar, AIR 2008 Supreme Court 1205) that: “As rightly painted (sic. pointed) out, the claim for refund of earnest money is only their alternative claim. It is not in dispute that in all suits for specific performance, the plaintiff is entitled to seek alternative relief in the event the decree for specific performance can not be granted for any reason, hence there is no infirmity in the alternative plea of refund". Hence, the fact remained that there must be contract and decree of specific performance must be refused by the Court. The facts in the above ruling are different. Here in the present suit, there is no contract. Hence, the same is not applicable to the present suit. 59) Considering that there is no agreement in between the parties and ratio in Bengal Coal Company Ltd. Vs. Prosanna Kumar Bhattacharjee and others, AIR 1932 Calcutta 39, I find that said amount neither consideration amount nor earnest money. Hence, plaintiff is not entitled to get refund of the said amount. Accordingly. I answer this issue in the negative.” Basis the above, he submitted that there was no question of granting interest at a rate higher than 6% per annum. 5. Mr. Jain, learned counsel appearing on behalf of the Appellant, has, however, pressed for interest at the rate of 10% Basavraj Page| 26-FA-36-2011 (C).DOC per annum. In support of his contention, he places reliance upon the decision of the Hon’ble Supreme Court in K. S. Satyanarayana Vs. V. R. Narayana Rao2, and, in particular, paragraph 12 thereof, which reads as under:- “12. We allow the appeal, set aside the judgments of the trial court as well as of the High Court and decree the suit of the plaintiff for Rs.1,36,167 against the 1st defendant with costs throughout. The plaintiff shall also be entitled to interest at the rate of 10% per annum on the principal amount of rupees one lakh from the date of institution of the suit till realisation.” 6. After having heard learned counsel and having perused the impugned order, in particular the findings noted above, I have no hesitation in holding that the figure as computed by Mr.Dande is correct. Though Mr. Jain has strenuously argued that interest should be awarded at 10% based on the decision of the Hon’ble Supreme Court in K. S. Satyanarayana (supra), I find that the said decision would have no application in the facts of the present case. 7. In view of the aforesaid findings, and particularly having regard to the absence of any agreed rate of interest or material warranting the award of a higher rate, I am of the view that the amount liable to be refunded has been correctly computed by 2 (1999) 6 SCC 104 Basavraj Page| 26-FA-36-2011 (C).DOC applying interest at the rate of 6% per annum. The amount so computed shall be refunded to the Appellant within a period of twelve weeks from today. 8. The First Appeal is, accordingly, disposed of. [ARIF S. DOCTOR, J.] Basavraj Page|