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2000 DIGILAW 53 (MP)

Pyare v. Kripashankar

2000-01-13

V.K.AGARWAL

body2000
This appeal is directed against the judgment and decree dt. 17.12.1996 in Civil Suit No. 5-A/90 by 1st Additional District Judge, Chhindwara. whereby a decree of Rs. 21,250/- with interest thereon at the rate of 12% p.a. has been awarded. Brief facts leading to the present appeal are that the original plaintiff Ram Khilawan filed a suit against the present appellant for specific performance of sale of his land bearing Khasra No. 54, area 11.005 hectare situate at village Itawa, Tahsil Parasiya, District Chhindwara on the assertion that defendant No. 1 appellant had executed an agreement to sell the same to the plaintiff Ram Khilawan for a consideration of Rs. 25, 000/- on 19.10. 1988. Subsequently also he had obtained the sum of Rs.500/-, 200/- and 550/- on 20.10.1988, 20.12.1988 and 5.8.1989 respectively. Thus, a total amount of Rs. 21,250/- were received by the appellant. The appellant did not execute the sale deed in pursuance of agreement dt. 19.10.1988. Therefore, a notice was served on the appellant on 9.12.1989, whereafter this suit was filed for specific performance and in the alternative for the refund of Rs. 21,250/- with interest @ 2% p.a. The suit was resisted by the appellant/defendant No.1. It was denied by him that there was any agreement between the parties for the sale of agricultural land of the appellant. It was averred by the appellant/defendant No. 1 that he obtained loan of Rs. 3,000/- from plaintiff Ram Khilawan, thereafter he has obtained potatoes worth Rs. 810/- and subsequently Rs. 2,500/- for various purposes. Thus, according to the appellant he has obtained a total loan of Rs. 6,310/- from the plaintiff. During the pendency of the suit, the original plaintiff Ram Khilawan died and in his place his legal representatives- respondents No. 1 to 4 were substituted. The trial Court found that the agreement (EX. P-1) was executed by the appellant/defendant No. 1, yet it found that there was no intention on the part of parties for the sale or purchase of land. It was a loan transaction. It was further found that the sum of Rs. 21,250/- in total was advanced by the deceased plaintiff to the appellant. A decree with interest thereon at the rate of 12% from 5.10.1989 till payment or realisation of the said amount was granted. Learned counsel for appellant urged that the document (Ex. It was a loan transaction. It was further found that the sum of Rs. 21,250/- in total was advanced by the deceased plaintiff to the appellant. A decree with interest thereon at the rate of 12% from 5.10.1989 till payment or realisation of the said amount was granted. Learned counsel for appellant urged that the document (Ex. P-1) alleged to be agreement cannot be relied upon and on that basis inference cannot be drawn that Rs. 20,000/- were advanced to the appellant. It has further been urged that the finding of learned trial Court that the appellant obtained a loan of Rs. 21, 250/- is not justified, in view of the material and evidence on record. It was therefore urged that the grant of interest @ 12% p.a. in the circumstances of the case is excessive, in view of the fact that defendant No. 1/appellant is a poor agriculturist and there is no averment or evidence to justify grant of interest as above. The learned trial Court has recorded a finding that there was infact no agreement to sell the agricultural land by the appellant/defendant No. 1. That finding has not been challenged. Therefore, the question that deserves consideration is as to whether an amount of Rs. 20,000/- and thereafter an amount of Rs. 1,250/- was advanced by the original plaintiff Ram Khilawan to defendant No. 1/appellant. It may be noted that in agreement (Ex. P-l) it has been mentioned that initially an amount of Rs. 20,000/- was paid by Ram Khilawan to the appellant. Subsequently, on three different occasions amounts of Rs. 500/-, Rs. 200/- and Rs. 550/- respectively were acknowledged to have been received by the appellant. It would therefore be clear from the said document Ex. P-1 that total amount of Rs. 21,250/- were paid by the deceased Ram Khilawan to the appellant. Consideration of Rs. 20,000/- having been paid by Ram Khilawan to the appellant is also established by the statements of Amarchand (PW 2), Munnilal (PW 3) and Murlidhar (PW 4) as also by the statement of Kripashankar (PW 1), the son of original plaintiff Ram Khilawan. There is no effective cross-examination of the above witnesses that the above sum was not paid by the deceased Ram Khilawan to the appellant. As against this, defendant Pyare (DW 1) has adduced his own oral evidence in rebuttal and has stated that he obtained only Rs. There is no effective cross-examination of the above witnesses that the above sum was not paid by the deceased Ram Khilawan to the appellant. As against this, defendant Pyare (DW 1) has adduced his own oral evidence in rebuttal and has stated that he obtained only Rs. 3,000/- initially, but the document (Ex. P-1) having been admittedly signed by him negatives his oral statement as above and it appears that the sum of Rs. 20,000/- initially and subsequently different sum amounting to Rs. 1,250/- were paid to the appellant. Therefore, the finding of learned trial Court that the total sum of Rs. 21,250/- was obtained by the appellant from deceased Ram Khilawan appears to be based on appreciation of material and evidence on record. The finding in the above regard appears to be proper and deserves to be confirmed. So far as interest is concerned the trial Court has granted interest on the above amount at the rate of 12% p.a. from 5.10.1989. Learned counsel for appellant has submitted that the rate is excessive. It has been submitted that the appellant is a poor agriculturist and that it was not a commercial transaction. No rate of interest was agreed to between the parties. In the circumstances, it has been prayed that the interest may be granted as provided under Section 34 CPC. The contention of the learned counsel for appellant deserves acceptance. Accordingly, the interest deserves to be awarded at the rate of 6% p.a. from 5.10.1989, till realisation of amount. Accordingly, the appeal is partly allowed and though the decree directing payment of sum of Rs. 21,250/- by the appellant to the respondents No. 1 to 4 is affirmed, but it is directed that the appellant shall pay the above amount with interest at the rate of 6% p.a. from 6.10.1989, till realisation to the respondents No. 1 to 4. The costs of this appeal shall be borne by the parties as incurred.