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2000 DIGILAW 1013 (MP)

Ishaq Mohammad v. Shakoor Mohammad

2000-09-15

A.K.MISHRA

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This second appeal has been preferred by the judgment and decree passed by District Judge, Guna dated 7.2.97 whereby the decree passed by the trial Court was modified and the suit was decreed for refund of the consideration of earnest money. The plaintiffs filed the suit for specific performance of agreement of sale dated 01.11.90 which is said to be executed by the defendant in respect of certain agricultural land. Consideration fixed was Rs. 20,000/-. The entire amount under consideration was paid and possession of the suit land was delivered to the plaintiffs. Plaintiffs further averred that sale deed was agreed to be executed by 1.5.92. The defendant adopted delaying tactics and did not execute the sale deed, hence after serving the notices suit was filed. The defendant filed the written statement and contended that his son was suffering from cancer and in connection with the treatment he required certain money. Plaintiff is one of his relations, i.e. sister's son as such he obtained money from him and for that an agreement was executed as a collateral security of loan advanced. Land was never intended to be sold and transaction was a loan transaction. It was submitted that the condition was also embodied to that effect in the agreement to repay the amount by 1.5.92. If the amount is not repaid, the entitlement was given to the plaintiff to get the sale-deed executed. That shows the real intention of the parties that transaction was not intended to be that of agreement of sale. It was further averred that agricultural produce worth Rs. 18,000/- has been given to the plaintiff and amount of Rs. 2,000/- remained to be paid. The trial Court passed the decree for refund of Rs. 2,000/- giving a finding that it was a loan transaction. Plaintiff aggrieved by judgment and decree of trial Court dis-allowing the alternative prayer of refund of entire consideration of Rs. 20,000/- filed first appeal before the Court below. The learned first appellate Court ordered payment of Rs. 20,000/- along-with interest with effect from 1.4.94 till realisation at the rate of 18% per annum. This decree has been assailed by the defendant in the present appeal. The second appeal was admitted on the following substantial questions of law : "Whether on the admission of the plaintiffs witness Mohammad Riyaz, amount of Rs. 20,000/- along-with interest with effect from 1.4.94 till realisation at the rate of 18% per annum. This decree has been assailed by the defendant in the present appeal. The second appeal was admitted on the following substantial questions of law : "Whether on the admission of the plaintiffs witness Mohammad Riyaz, amount of Rs. 18,000/- was repaid and appellate Court decreed the whole suit without deducting the amount of Rs. 18,000/- ?" Learned counsel appearing for the defendant/appellant has urged that it is a case where not only the defendant and his witnesses namely Ishaq Mohammed and Halkoo DW 1 and DW 2 deposed that six quintal of gram was given every year for three years to the plaintiff and the value of per quintal gram at the relevant time was Rs. 1000/- to 1100/- only. However, evidence discloses that without weighment such gram was delivered to the plaintiff for three years. The plaintiff s witness Mohammad Riyaz has candidly admitted in para 3 the plea of repayment of loan for a period of three years, and that the plaintiff was given crop of gram by the defendant. He admitted that worth of gram delivered to the plaintiff was Rs. 6000/- per annum. Thus, in all Rs. 18,000/- by way of crop of gram has been paid. Thus, it is submitted that the judgment and decree passed by the learned Court below is illegal. Learned counsel appearing for the respondent has supported the reasonings of Court below and submitted that there was condition in the agreement for supply of crop of gram every year till amount is not paid. Thus that amount is not adjustable as per the agreement. In addition, Rs. 20,000/- were required to be paid. He submitted that no such crop was ever delivered as submitted by the defendant. It is submitted that objective evidence is missing with respect to delivery of gram worth Rs. 18,000/-. After hearing learned counsel appearing for both the parties and perusing the agreement as also evidence on record I am of the opinion that the transaction was totally a loan transaction and it appears that in order to ensure the interest the crop of gram was to be delivered as per clause-II of the agreement. 18,000/-. After hearing learned counsel appearing for both the parties and perusing the agreement as also evidence on record I am of the opinion that the transaction was totally a loan transaction and it appears that in order to ensure the interest the crop of gram was to be delivered as per clause-II of the agreement. It appears that possession was not delivered to the plaintiff, as the real transaction between the parties was that of loan which was advanced for the purpose of treatment of the son of the defendant. In the loan transaction it is usual that interest is secured. The amount of interest which has been fixed by the Court below is 18% p.a., calculated as such, the amount of interest for three years for the crop of gram said to be given, comes to Rs. 10,800 which is the mercantile rate also. Thus, out of the total amount repaid by handing-over the crop of Rs. 18,000/- contained the amount of Rs. 10,800/- on account of interest and 7,200/- on account of principal amount of Rs. 20,000/-. Thus, out-standing principal amount comes to Rs.13,800/-. There is nothing to disbelieve the version of the plaintiff's own witnesses, Mohd. Riyaz PW 2 and the version of the defendant and his witness. The suggestion was also made in the cross-examination of the plaintiff which he denied. Thus, it can be found safely that crop of gram worth Rs.18,000/- was given that contained the amount of interest of Rs.10,800/- Thus, the outstanding amount comes to Rs. 13,800/- out of which this defendant himself has admitted that Rs. 2,000/- was due and payable. Thus, amount of Rs. 13,800/- shall be paid by the defendant which would bear interest at the rate of 6% per annum from the date of decree passed by the learned lower appellate Court. The amount is directed to be paid within four months, else the amount would carry interest at the rate of 10% p.a. Appeal is, thus, partly allowed. The judgment and decree are modified as indicated above. Parties to bear their own costs.