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2003 DIGILAW 924 (PNJ)

Sawaran Singh v. Ajit Singh

2003-07-10

M.M.KUMAR

body2003
ORDER M.M. Kumar, J. - This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-respondent is entitled to a decree for a sum of Rs. 23,000/- with proportionate costs and interest at the rate of 12% per annum. 2. The plaintiff-respondent has filed a civil suit for possession by way of specific performance on payment of balance sale consideration in respect of the suit land. Both the Courts below have categorically held that the agreement to sell dated 15.11.1995 for a sale consideration of Rs. One lac was in fact a money transaction in order to secure the loan. Both the Courts have found that the defendant-appellant never agreed to sell the suit land to the plaintiff-respondent. For the aforementioned conclusion, both the courts have relied upon various other transactions showing that the plaintiff-respondent in fact has been entering into such type of agreements with the defendant- appellant as well as some other persons also. It has also been found that a sum of Rs. 23,000/- has been advanced to the defendant-appellant and the plaintiff-respondent is entitled to recover the same from him, although no such prayer was made by the plaintiff-respondent. Reliance in this regard has been placed on a judgment of this court in the case of Sardari Lal v. Kartar Singh and others, 1998(2) PLJ 55 holding that the Court can always grant relief on the basis of findings recorded by it although the same has not been prayed for. 3. Mr. N.D. Achint, learned counsel for the defendant-appellant has argued that the agreement dated 15.11.1995 has been found to be the result of fraud and misrepresentation and, therefore, no decree on the basis of aforementioned agreement could be passed. The learned counsel has also pointed out that initially only an amount of Rs. 9,000/- was advanced and a sum of Rs. 23,000/- has been worked out by adding interest at the rate of 5% per month and, therefore, decree for a sum of Rs. 23,000/- could not have been passed. 4. After hearing the learned counsel, I do not find any legal infirmity in the findings recorded by the Courts below. Both the Courts have categorically held that a sum of Rs. 23,000/- could not have been passed. 4. After hearing the learned counsel, I do not find any legal infirmity in the findings recorded by the Courts below. Both the Courts have categorically held that a sum of Rs. 23,000/- has been paid by the plaintiff-respondent to the defendant-appellant and he was entitled to recover the same. That findings of fact cannot be assailed under Section 100 of the Code because it is based on cogent evidence. There is no finding that in fact the plaintiff- respondent has advanced a loan of Rs. 9,000/- only and a sum of Rs. 23,000/- has been worked out by adding interest at the rate of 5% per month. There is no such issue framed by the Courts below. Therefore, no interference in the findings of fact is called for and the appeal is liable to be dismissed. 5. The argument of the learned counsel that the agreement to sell dated 15.11.1995 is the result of fraud and misrepresentation cannot be accepted because the findings have to be read in its context. The findings recorded in paragraph 24 of the judgment by the trial Court have to be construed to mean that the agreement was procured fraudulently but it does not mean that an amount of Rs. 23,000/- did not pass on to the defendant-appellant. There is specific finding recorded by the Courts below that the aforementioned sum has been paid to the defendant-appellant. In such cases where there are specific findings, decree for recovery of the aforementioned amount could always be passed. Such a course adopted by the High Court was approved by the Supreme Court in the case of Tej Ram v. Patirambhau, (1997) 9 SCC 634. The observations of their Lordships in this regard read as under :- "........it would appear that there was money transaction between the appellant and the respondent and the respondent, being a moneylender, was taking documents, purporting to be an agreement of sale, from the loanees. In the event of the loanees failure to pay the loan amount along with interest stipulated by him, the documents would, obviously, be executed, with a view to enforce the repayment of loan and interest accrued thereon. It is unlikely that being a moneylender and having parted with Rs. 48,000 as cash, he would have kept quiet either for seeking possession of the property or payment of Rs. It is unlikely that being a moneylender and having parted with Rs. 48,000 as cash, he would have kept quiet either for seeking possession of the property or payment of Rs. 2000 immediately and then sought specific performance; it would be unlikely in the normal circumstances that he would have waited for 3 years for issuing notice and then filing suit on the last date. Under these circumstances, the court below rightly came to the conclusion that it is not an agreement for sale or purports to be a sale in truth and in reality, but in view of the admission made by the respondent by way of endorsement that he had received Rs. 48,000 and in the absence of any specific circumstances and in view of the doubtful conduct of both the parties, it is not possible for us to reach any satisfactory conclusion on the basis of evidence as to what was the amount actually due and paid by the appellant to the respondent and what amount is still payable. Under these circumstances, we are of the considered view that the ends of justice would be met if the conclusion reached by the High Court that a sum of Rs. 48,000 was paid by the respondent to the appellant, is confirmed. ..." For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.