JUDGMENT

*********

R.SUBRAMANIAN,J.

AND N.SATHISH KUMAR , J.

Since the scope of the appeal is limited, with the consent of the parties, the appeal itself is taken up for final hearing.

2. This appeal is at the instance of the first defendant in O.S.No.127 of 2009 on the file of the Additional District and Sessions Judge(Fast Track Court), Kanniyakumari at Nagercoi, a suit for specific performance launched by the first respondent herein seeking specific performance of an agreement of sale, dated 07.03.2007. According to the plaintiff, the defendants agreed to sell the property measuring about 7 cents for a total consideration of Rs.15,90,000/- and the same was witnessed by agreement in writing dated 07.03.2007. Apart from paying a sum of Rs.3,05,000/- as advance on the date of the agreement, the plaintiff had paid further amounts on various dates amounting to Rs.13,55,000/-. Offering to pay the balance of sale consideration, the plaintiff launched the suit on 27.07.2009. It is the case of the plaintiff that despite offers made to pay the balance of sale consideration, the defendants did not come forward to execute the sale deed.

3. The suit was resisted by the defendants contending that the suit agreement was not intended to be a sale agreement. It was only a loan transaction which was camouflaged for an agreement of sale.

4. The learned trial Judge on consideration of the evidence on record, rejected the defence to the effect that it is the loan transaction. He however concluded that the plaintiff was not ready and willing to perform his part of the contract. Therefore, he is not entitled to the discretionery relief of specific performance. The learned trial Judge however granted a decree of refund of fund with interest at the rate of 24% per annum from the date of agreement till the date of decree. The learned trial Judge also awarded mandatory costs under Section 74-A of Tamil Nadu Court-Fees and Suits Valuation Act.

5. The plaintiff has not chosen to appeal against the decree. The first defendant has come up on appeal questioning the interest awarded by the learned trial Judge.

6. We have heard Mr.C.Sankar Prakash, learned counsel appearing for the appellant and Mr.T.Selvakumaran, learned counsel appearing for the first respondent.

7. Mr.C.Sankar Prakash, learned counsel appearing for the appellant, would vehemently contend that the trial Court was not justified in awarding exorbitant interest from the date of agreement till the date of decree. He would also fault the learned trial Judge for having awarded mandatory costs on the conclusion that the defence is frivolous.

8. Contending contra, Mr.T.Selvakumaran, learned counsel appearing for the first respondent, would submit that the trial Court was justified in awarding 24% interest since the plaintiff has parted with almost the entire sale consideration.

9. On the contentions of the learned counsel appearing for the parties, the following points emerge for consideration in this appeal:

“(i)Whether the trial Court was justified in granting interest at the rate of 24% per annum from the date of agreement till the date of decree? ;and (ii)Whether the trial Court was justified in granting mandatory costs under Section 74-A of the Tamil Nadu Court-Fees and Suits Valuation Act?

10. The trial Judge has recorded a finding that the plaintiff was not ready and willing to perform his part of the contract. The suit being one for specific performance, the very essential requirement has not been satisfied. Therefore, the trial Court was justified in dismissing the suit. However, while granting a decree for return of advance amount, the trial Court went astray and granted interest at the rate of 24% per annum, even though in the plaint the plaintiff has sought for refund of advance amount with interest at 12% and even in the pre-suit notice, the defendants had offered to repay the advance amount with 12% interest.

11. Section 34 of the Civil Procedure Code, enables the Court to grant pendente lite i