APHC010260212022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3529] WEDNESDAY,THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR APPEAL SUIT NO: 123/2022 Between: 1. G.ADENNA, S/O LATE GOVINDAPPA, AGED ABOUT 49 YEARS, OCC. ADVOCATE, R/O FLAT NO. F00A, 2ND FLOOR, KCNS ARCADE, JESUS NAGAR, ANANTAPURAM TOWN, ANANTHAPURAM DISTRICT. ...APPELLANT AND 1. A RAGHAVENDRA CHOWDARY, S/O VENKATASWAMY, AGED ABOUT 72 YEARS, R/O FLAT NO.20, MP AND MLA COLONY, JUBILEE HILLS, HYDERABAD, TELANGANA STATE. ...RESPONDENT The Decree and Judgment, dated 23.03.2022 passed in OS. No. 89/2016 on the file of the Court of Learned I Additional District Judge, Anantapur District, Anantapur. IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To grant temporary Injunction restraining the respondents from alienating the Suit Schedule property in OS. No. 89/2016 on the file 2 RRR ,J &TCDS, J A.S.No.123 of 2022 of the Court of Learned I Additional District Judge, Ananthapuram, Which is fully described in the schedule appended hereto, pending disposal of the appeal suit and pass. IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to permit him to amend the prayer in the plaint in O.S.No.89/2016 by adding the prayer “to grant the alternative relief directing the defendant/respondent herein to pay the amount of Rs.30,00,000/- + Rs.2,00,000/- = Rs.32,00,000/- (Rupees Thirty two lakhs only) with interest @ 24% per annum from the date of plaint till the date of realization to the Plaintiff/Appellant” in the interest of Justice and pass Counsel for the Appellant: 1. HANUMANTHA RAO BACHINA Counsel for the Respondent: 1. PATANJALI PAMIDIGHANTAM The Court made the following Judgment: (per Hon‟ble Sri Justice R. Raghunandan Rao) The unsuccessful plaintiff in O.S.NO.89 of 2016 before the I Additional District Judge, Anantapur has filed the present appeal, against the judgment and decree of the trial Court dated 23.03.2022. The parties are being referred to as they are arrayed in the suit itself. 2. Heard Sri A. Chandraiah Naidu, learned counsel appearing on behalf of Sri Hanumantha Rao Bachina learned counsel for the 3 RRR ,J &TCDS, J A.S.No.123 of 2022 appellant/plaintiff and Sri Pathanjali Pamidighantam, learned counsel appearing for the respondent/defendant. 3. The plaintiff filed O.S.No.89 of 2016 before the I Additional District Judge, Anantapur, against the defendant herein for specific performance of an agreement of sale, dated 12.09.2015. The learned trial Judge, after considering the pleadings and evidence adduced by both sides had dismissed the suit on 23.03.2022. Aggrieved by the said judgment and decree, the plaintiff has filed the present appeal. 4. The facts relating to the present case, according to the plaintiff, are as follows: The plaintiff had entered into an agreement of sale dated 12.09.2015, with the defendant, for purchase of Ac.1.4.75 cents of land in Sy.No.136of Brahmanapalli Shotrium village Fields, Gotkuru Panchayat. The details of the said land are set out in the schedule to the agreement of sale (hereinafter referred to „schedule property‟). The terms of the sale, as per the agreement of sale, were that consideration of Rs.14 lakhs per acre would be paid for the land; an amount of Rs.30 lakhs was given as advance; the plaintiff was to remit the balance sale consideration of Rs.1,76,50,000/- to the defendant within eight months from the date of agreement of sale, that is 11.05.2015. The defendant was to execute and register deeds of sale, in favour of the plaintiff or his nominees. The 4 RRR ,J &TCDS, J A.S.No.123 of 2022 plaintiff had paid a further sum of Rs.2 lakhs on 23.06.2016, to the defendant, at Hyderabad, on the demand of the defendant and obtained a receipt for the same. As the defendant was not coming forward to execute the necessary deeds of sale, the plaintiff issued a legal notice, dated 11.07.2016. In this legal notice, it was stated that the plaintiff and others had been ready and willing to perform their part of the contract and obtained registered deeds of sale for the schedule property. It is also stated that the defendant was required to complete survey of the land and furnish exact measurements of the land which had not been done by the defendant and that the defendant was required to get the mortgage over the schedule property, released from M/s. Vijaya Bank, Ananatapur Branch. The plaintiff was reminded of the further payment of Rs.2 lakhs on 22.06.2016 and was called upon to get the property surveyed and released from the mortgage, after which the agreement of sale could be completed by execution of necessary deeds of sale in the name of plaintiff and others, failing which, appropriate legal action would be initiated. As the defendant is said to have given a reply notice setting out wrong facts, the suit came to be filed by the plaintiff. 5. The version of the defendant was; the defendant had entered into an agreement of sale with the plaintiff however, the plaintiff did not make any payment of money, other than the initial amount of Rs.30 lakhs 5 RRR ,J &TCDS, J A.S.No.123 of 2022 given as advance at the time of execution of the agreement. The agreement of sale was an agreement in which time was of the essence of the contract and as no payments were made by the plaintiff, the contract had lapsed with forfeiture of the amounts advanced to the defendant. The payment of Rs.2 lakhs on 23.06.2016, is specifically denied by the defendant. 6. In the plaint, the plaintiff had taken the stand that he was only a name lender and that the property was to be purchased by him and five other people who would contribute their share of the sale consideration. It was also stated that there was an agreement between these six persons as to the manner in which the purchase of the schedule property was to be done. This contention of the plaintiff was denied by the defendant in his written statement and additional written statement. The stand of the defendant was that he was never informed of any other person being interested in the purchase of the schedule property and that the agreement between these six persons, said to have been reduced to writing, would amount to a partnership. It was urged that since the said partnership was not registered, no suit for specific performance could have been initiated by the said firm in the view of the prohibition contained in the Partnership Act. Apart from this, the defendant contended that the plaintiff did not have the financial capacity to complete 6 RRR ,J &TCDS, J A.S.No.123 of 2022 the sale transaction and was never ready and willing to fulfill the requirement of payment of sale consideration within eight months from the date of agreement of sale. 7. The learned trial Judge, after considering the aforesaid rival pleadings, had framed the following issues and additional issues: 1. Whether the plaintiff is entitled for specific performance of contract as prayed in the plaint? 2. Whether the time is essence of contract? 3. Whether the plaintiff is always ready and willing to perform his part of contract? 4. To what relief? Additional Issues: 1. Whether the suit is barred under the provisions of Partnership Act? 2. Whether the plaintiff is entitled for the relief of specific performance of contract basing on agreement of sale dated 12.09.2015? 8. In the course of the trial, the plaintiff examined himself as P.W.1, one of the persons who is said to have attested the receipt issued by the defendant, on 23.06.2016 as P.W.2 and one of the six persons who are said to have entered into an agreement for purchase of the schedule land was examined as P.W.3. Exs.A1 to A18 were marked on 7 RRR ,J &TCDS, J A.S.No.123 of 2022 behalf of the plaintiff. The defendant examined himself as D.W.1 and marked Exs.B1 to B5. 9. As recorded above, the suit was dismissed by the learned trial Judge. The findings of the learned trial Judge are that the written agreement between the six persons for purchase of the schedule land should be treated as a partnership; since the partnership was not registered, the suit was not maintainable; the plaintiff did not have the financial capacity either by himself or among the other five members, who are said to have been interested in the purchase of the schedule property; due to lack of financial capacity, the plaintiff was not ready or willing to complete the sale transaction; the alleged receipt dated 23.06.2016 does not appear to have been executed on 23.06.2016. 10. Aggrieved by the said judgment and decree, the present appeal has been filed. 11. After hearing Sri A. Chandraiah Naidu and Sri Pathanjali Pamidighantam, this Court is of the view that the following issues would arise for the consideration of this Court. 1. Whether the defendant had received a sum of Rs.2 lakhs, from the plaintiff on 23.06.2016, and had impliedly given up the stipulation as to time being essential for the performance of the agreement of sale? 8 RRR ,J &TCDS, J A.S.No.123 of 2022 2. Whether the plaintiff and the other persons who are alleged to be persons interested in purchasing the schedule property had the financial capacity and showed their readiness and willingness to pay the remaining sale consideration perform their part of for the purchase of the schedule property? 3. Whether amended prayer of refund of the advance sale consideration should be granted? 12. As issues 1 and 2 are interconnected, they are being taken up together. The plaintiff, marked the agreement of sale, dated 12.09.2015 as Ex.A1. An agreement between the plaintiff and five other persons, reduced to writing and signed on 11.09.2015 between the plaintiff and five other persons, setting out the terms on which they would purchase the schedule property as Ex.A2. The receipt, dated 23.06.2016, executed by the defendant acknowledging receipt of Rs.2 lakhs from the plaintiff was marked as Ex.A3. According to these documents, the plaintiff and five others got together, on 11.09.2025, and executed an agreement between themselves. Under this agreement, it was agreed that the six of them would participate in the purchase of the schedule property from the defendant. The respective shares of these six persons were also set out in the agreement. It was agreed, in this document, that the plaintiff would be the front man and would enter into the agreement of sale with the defendant and that the six persons would get separate deeds of sale 9 RRR ,J &TCDS, J A.S.No.123 of 2022 executed by the defendant, at the time of the payment of consideration and execution of documents. 13. After the execution of Ex.A2, dated 11.09.2015, the plaintiff is said to have entered into an agreement of sale dated 12.09.2015, with the defendant for purchase of the schedule property @ Rs.14 lakhs per acre, with the stipulation that the entire sale consideration would be paid, on or before 11.05.206, failing which, the agreement of sale stands cancelled and the advance of Rs.30 lakhs paid on that day would be forfeited. It is an admitted fact that no part of the remaining sale consideration was paid to the defendant by 11.05.2016. However, the plaintiff contends that the defendant asked for money as he was in need of it and a sum of Rs.2 lakhs had been paid to the defendant on 23.06.2016, at Hyderabad, as part of the sale consideration. P.W.2, who is said to have witnessed this transaction, gave evidence that a sum of Rs.2 lakhs had in fact been paid to the defendant, on 23.06.2016. The plaintiff also contended that he had also got a legal notice (Ex.A4) issued, stating that the plaintiff was ready with the balance sale consideration, and requiring the defendant to redeem a mortgage that is said to have been created in favour of Vijaya Bank and to survey and measure the land for the purposes of completing the sale transaction. The plaintiff also took the stand, in the legal notice, that originally time was of the essence in the contract, but the same came 10 RRR ,J &TCDS, J A.S.No.123 of 2022 to be relaxed on account of the defendant seeking time, on different occasions and by receiving Rs. 2,00,000/- on 23.06.2016. 14. It is the case of the defendant that he had entered into an agreement of sale, dated 12.09.2015, for selling the schedule property @ 14 lakhs per acre with the stipulation that the entire sale consideration was to be paid to him on or before 11.05.2016. The defendant further states that he had received a sum of Rs.30 lakhs as advance sale consideration on 12.09.2015 and a further amount of Rs.2 lakhs, paid by the plaintiff for purchase of certain electronic goods, by the daughter of the defendant, in the United States of America and for bringing the same down to India. In his pleadings, the defendant contended that any receipt, produced by the plaintiff, said to have been signed by the defendant, after 12.09.2015 is a fabrication as no such amounts had ever been paid to the defendant. The defendant also stated that he was never informed that the plaintiff was not the sole purchaser of the schedule property and that five other persons were interested in the said transaction. In the course of the trial and arguments, it was contended by the defendant and his counsel that the agreement was only between the plaintiff and the defendant and the plaintiff had introduced these five persons, at the stage of the legal notice in July, 2016 to cover up the fact that he was financially incapable 11 RRR ,J &TCDS, J A.S.No.123 of 2022 of purchasing the land and wanted to show these five persons to contend that all of them together had the capacity to purchase the land. 15. The claim of the plaintiff is that an additional amount of Rs.2 lakhs had been paid on 23.06.2016 and consequently the defendant cannot insist the time of the essence of the contract and refuse to execute necessary deeds of sale thereafter. The case of the defendant is that he had received a sum of Rs.2 lakhs and had given a receipt for the same. However, this money was not given on 23.06.2016 in Hyderabad but was given at the time of execution of the agreement of sale, on 12.09.2015 itself. 16. The stipulation in the agreement of sale marked as Ex. A1, was that the agreement of sale itself would stand terminated and the advance amount, of Rs. 30 lakhs, would stand forfeited. This clause is a clear pointer to the understanding of the parties that there was an urgency in completing the transaction. The legal notice of the plaintiff, marked as Ex.A4, and the pleadings in the plaint state that the fact that the defendant had received part sale consideration, of Rs.2 lakhs, after the deadline means that the parties had stopped treating time as the essence of the contract. This stand, of the plaintiff, makes it clear that both parties were clear, at least, at the inception of the agreement that 12 RRR ,J &TCDS, J A.S.No.123 of 2022 time was of the essence of the contract. The plaintiff, to get over this issue, raised Ex. A 3, receipt as an answer to this stipulation. 17. Ex.A3, said to be the receipt, given by the defendant, on 23.06.2016, is admittedly in the handwriting of the defendant. The signature in Ex.A3 is also admitted by the defendant. However, the question that remains is whether this receipt was executed on 23.06.2016. Ex.A3 is dated 23.06.2016. However, the plaintiff, in his cross examination, as PW1, had admitted that this date was added to Ex. A3, by the plaintiff, on the ground that the defendant had left it to him to write the date. Ex.A3 contains signatures of two persons as attestors namely Sri M. Srinivasulu and Sri N. Mahesh. The plaintiff to further strengthen his contention examined Sri N. Mahesh as P.W.2. 18. Sri Pathanjali Pamidighantam drew the attention of the Court, to certain contradictions between the evidence of the plaintiff as P.W.1 and Sri N. Mahesh as P.W.2, in relation to Ex.A3 which are discussed below. 19. According to the plaintiff, Ex.A3 was executed, in Hyderabad, on 23.06.2016, in Venkateswara lodge, Lakdikapool. The evidence of the plaintiff, as P.W.1, in relation to this document is that Sri Sreenivasulu and Sri Mahesh, who is examined as P.W.2, had gone to Hyderabad to meet their advocate in respect of some litigation in his 13 RRR ,J &TCDS, J A.S.No.123 of 2022 office in Dilsukhnagar, Hyderabad, and had subsequently come to Venkateswara Lodge, where the plaintiff paid the sum of Rs.2 lakhs to the defendant and obtained Ex.A3 receipt. According to the cross examination of P.W.1, the P.W.1 had started from Ananthapuram at 12 noon and reached Hyderabad by 4.00 p.m on the date of Ex.A3, which is 23.06.2016. In the same cross examination, P.W.1 states that he had gone to the office of the advocate, handling the case of Sreenivasulu at 8.00 a.m and that the payment under Ex.A3 was made to the defendant between 12 noon to 1.00 p.m. It is clear that these statements are contradicting each other. The plaintiff could not have reached the office of the Advocate in Dilsukhnagar, Hyderabad at 8.00 a.m on the date of Ex.A3 when he is said to have started from Anantapuram at 12 noon and reached Hyderabad at 4.00 p.m. Further, the defendant could definitely not have paid the amount of Rs.2 lakhs to the defendant between 12 noon to 1.00 p.m. in Venkateswara lodge, Lakdikapool, Hyderabad. P.W.2 on the other hand states that the house of the Advocate which he had visited along with P.W.1 and Sreenivasulu is situated in Dilsukhnagar. He states that he started with P.W.1 from Ananthapuram in a car at 3.30 a.m., on 22.06.2016, and visited the office/residence of the advocate, in Dilsuknagar between 12.30 to 1.00 p.m and stayed at the office of the advocate for about 45 minutes. Thereafter, he states that they reached the hotel in Lakdikapool at about 1.30 p.m. 14 RRR ,J &TCDS, J A.S.No.123 of 2022 20. According to P.W.1, payment of Rs.2 lakhs was done between 12 to 1.00 p.m while P.W.2 states that they were at the office of the advocate, in Dilsukhnagar till about 1.00 p.m and had reached at 1.30 p.m. Further, P.W.2 states that they travelled from Dilsukhnagar to Lakdikapool by a city bus. P.W.2 further states he was unaware of what was written in Ex.A3 as well as the date that was mentioned in Ex.A3. P.W.1, in his cross examination, admits that the defendant did not put any date on Ex.A3 receipt and the said date was put on Ex.A3 by him later. P.W.1 states that the defendant had left it open to him to put the date and as such, the date of 23.06.2016 was put on the receipt. 21. The above inherent contradictions in the evidence of P.W.1 and the contradictions between P.W.1 and 2 are sufficient to disbelieve the version of the plaintiff, that money was paid out on 23.06.2016. 22. The defendant contends that the plaintiff never had the financial capacity, to complete the sale transaction. He would also contend that, the plaintiff, except alleging that he had the financial capacity to pay the remaining sale consideration, did not prove such capacity, by showing the money available for this transaction. The defendant invokes section 16 (c) of the Specific Relief Act, which requires a plaintiff to demonstrate ability and willingness to perform his part of the 15 RRR ,J &TCDS, J A.S.No.123 of 2022 contract and contends that this provision of law has not been complied and that the appeal has to be dismissed 23. Section 16 (c) reads as follows: 16. Specific bars to relief—Specific performance of a contract cannot be enforced in favour of a person- (a) .... (b) .... (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. The defendant relies upon the judgments of Ravi Setia vs. Madan Lal1; Shenbagam vs. K.K Rathinavel2; U.N. Krishnamurthy vs. A.M. Krishna Murthy3. 24. The principle enunciated in these judgments, is essentially to the effect that a plaintiff, in order to obtain a decree of specific performance, of an agreement of sale would not only have to plead that he was always ready and willing to perform his part of the contract, but also show, by conduct, that he has the necessary financial capacity and the actual money ready for paying the vendor defendant. It would suffice 1 2019) 9 SCC 381 2 2022 SCC online SC 71 3 (2023) 11 SCC 775 16 RRR ,J &TCDS, J A.S.No.123 of 2022 to extract the following part of the judgment of the Hon‟ble Supreme Court in U.N. Krishnamurthy vs. A.M. Krishna Murthy.4 24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money. 25. In Man Kaur v. Hartar Singh Sangha [Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239] , this Court held that : (SCC p. 531, para 40) “40. … A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the 4 (2023) 11 SCC 775 17 RRR ,J &TCDS, J A.S.No.123 of 2022 plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs 10 lakhs and earnest money of Rs 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not “ready and willing” to perform his obligations.” 26. In Prem Raj v. DLF Housing Co. Construction (P) Ltd. [Prem Raj v. DLF Housing Co. Construction (P) Ltd., 1968 SCC OnLine SC 151 : AIR 1968 SC 1355] cited by Mr Venugopal, this Court speaking through Ramaswamy, J. held that : (AIR p. 1357, para 5) “5. … It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract.…” and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon [Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-28) 55 IA 360 at p. 372 : AIR 1928 PC 208] . 18 RRR ,J &TCDS, J A.S.No.123 of 2022 25. The plaintiff contends that he was ready and willing to pay the balance sale consideration and has marked the extracts of his bank accounts as well as the extracts of the bank account statements of the other five persons who are said to have entered in to an agreement dated 11.09.2015 as Exhibits. It is not the case of the plaintiff that he had other sources available for raising the necessary sale consideration. In the absence of any such contention, this Court would have to look at the extracts of the bank accounts produced by the plaintiffs. A perusal of these statements would show that none of the six persons individually or collectively held any amounts close to the required amount of Rs.1,75,00,000/- for completion of the sale transaction. Further, there is no evidence, that the plaintiff had approached the defendant to receive the balance sale consideration, before the deadline set out in the Ex.A1, Agreement of sale. Another aspect, in this regard, noticed by the trial court, is that the plaintiff claims that the defendant, in June 2016, had requested for payment of Rs, 5 lakhs, but only Rs. Two lakhs could be arranged by the plaintiff. The inability of the plaintiff in paying even Rs. 5 lakhs, in June 2016, makes it amply clear that the plaintiff did not have the capacity to pay the remaining sale consideration to the defendant. The plaintiff has failed, to demonstrate his ability to purchase the said property. 19 RRR ,J &TCDS, J A.S.No.123 of 2022 26. Apart from the above facts, the question of the execution of Ex.A2, dated 11.09.2015, and the question of whether the other five persons had entered in to agreement with plaintiff to purchase of the plaint schedule property remains. Ex.A2 is typed on stamp paper that is said to have been purchased on 10.09.2015, in the name of the plaintiff. P.W.3 is one of the signatories to this agreement. In the course of his cross examination, P.W.3 stated there was no written agreement on 11.09.2015 except an oral understating. He states that the stamp paper on which Ex.A2 is written, was purchased, in the year 2016, and the stamp vendor had given a wrong date on the stamp paper. P.W.3 also admitted that as per Ex.A2 the plaintiff did not have a right to get the sale deed for the entire property. P.W.1, in his evidence, stated that the understanding between the persons referred in Ex.A2 was orally concluded on 10.09.2015 and that stamps, for Ex.A2 were purchased on 10.09.2015. These statements are in contraction to the admissions made by P.W.3. The contradiction in the evidence between P.W.1 and 3 would also raise any amount of doubt regarding the veracity of the alleged agreement between the plaintiff and five other persons, which is alleged to have been reduced to writing in Ex.A2. The fact that the alleged agreement between the plaintiff and the other five persons, mentioned in Ex.A2, was never raised nor mentioned between the plaintiff and the defendant nor mentioned in any of the documents of that period would 20 RRR ,J &TCDS, J A.S.No.123 of 2022 militate against accepting Ex.A2 and the agreement between the six persons. 27. A conspectus of the above facts would make it clear that the contention of the plaintiff that Ex.A3 had been issued by the defendant, on 23.06.2016, cannot be believed. Further, the alleged execution of agreement, Ex.A2, on 11.09.2015, also cannot be believed. This agreement appears to have been created only for the purposes of obtaining the financial strength of the other five persons, to demonstrate the financial capacity of the plaintiff to purchase the suit schedule property. Unfortunately, for the plaintiff, even the combined financial strength of these six persons is not sufficient to demonstrate that they have a capacity to purchase the schedule property. 28. Another issue, that has been raised, was whether the agreement in Ex.A2 would have to be treated as a partnership and consequently whether there was a bar against the filing of the suit itself. In view of the fact that this Court has disbelieved Ex.A2, the question of going into the issue of whether Ex.A2 would amount to the creation of a partnership would not arise and this Court does not have to go into the question. 29. During the course of this Appeal, the plaintiff had filed I.A.No. 1 of 2025, to amend the prayer in the plaint, for refund of the advance 21 RRR ,J &TCDS, J A.S.No.123 of 2022 paid by the plaintiff, to the defendant, on 12.09.2015. This application was allowed on 21.07.2025 and the plaintiff has amended his prayer to claim refund of Rupees thirty two lakhs, on the ground that the sum of Rupees two lakhs paid on 23.06.2016, should also be included in the refund claim. The plaintiff also claims interest, at the rate of 24% per annum, from the date of the plaint till the date of realisation. 30. The terms of the agreement, dated 12.09.2025, provided for forfeiture of the advance amount, if the balance consideration was not paid by the deadline set in the agreement of sale. However, such a clause can be enforced if the defendant had suffered a loss, on account of the breach of contract by the plaintiff. There is no such pleading on the part of the defendant. In fact, the defendant had pleaded that the value of the land had increased tremendously. In such a situation, it would be equitable to order refund, of the advance amount which has been forfeited. 31. The plaintiff claims that he had paid Rupees Thirty lakhs on 12.09.2015 and Rupees Two lakhs, on 23.06.2016. This court has already disbelieved the version of the plaintiff, that a sum of Rupees two lakhs had also been paid, on 23.06.2016, as part consideration. Consequently, the plaintiff would be entitled to refund of Rupees thirty lakhs only. 22 RRR ,J &TCDS, J A.S.No.123 of 2022 32. The plaintiff seeks interest, of 24% per annum, on the refund amount. The transaction was not a commercial transaction, and interest at the rate of 12% per annum would be equitable. The plaintiff sought interest to be calculated from the date of the plaint. The claim for refund was raised for the first time, on 29.01.2025, during the course of the appeal. It would be fair to both sides to award interest from that date only. 33. In the circumstances, we do not find any reason to interfere with the judgment of the trial court, except to the extent of directing refund of Rupees thirty lakhs, to the plaintiff, with interest at the rate of 12% per annum from 29.01.2025 till date of realisation. This appeal is disposed of accordingly. There shall be no order as to costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed. _______________________ R.RAGHUNANDAN RAO, J ________________ T.C.D. SEKHAR, J RJS 23 RRR ,J &TCDS, J A.S.No.123 of 2022 HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO HON’BLE SRI JUSTICE T.C.D. SEKHAR A.S.No.123 of 2022 (per Hon’ble Sri Justice R. Raghunandan Rao) Dt: 17.09.2025 RJS