Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 106 (CHH)

HALDHAR PATEL v. P. S. THAKUR

2012-04-10

N.K.AGARWAL

body2012
JUDGMENT 1. This is defendants' first appeal filed under Section 96 of Code of Civil Procedure, 1908, against the judgment and decree dated 03.07.2007, passed by the District Judge, Dhamtari, in Civil Suit No. 6-A/2006. 2. Brief facts of the case are that, Plaintiff filed a suit for specific performance of contract against the defendants. According to plaintiff, he entered into an agreement of sale (Ex.P-1) with respect to the land bearing Khasra No.1048, area 0.35 dismal, Patwari Halka No. 16 situated at Baniyapara Ward, Dhamtari (C.G.) with the respondents for a sale consideration of Rs.1,50,000/- on 16.5.2003 and paid Rs.1,00,000/- as earnest money. As per the terms of the contract, the defendants have to execute the sale deed within a period of 18 months from the date of execution of agreement after receiving balance consideration at the time of registration. When he learnt, defendants are trying to sell the same to some other person, he raised his objection and issued notices, demanding execution of sale deed in terms of the contract but the defendants did not execute the sale deed in his favour, hence, he filed a suit for specific performance of the contract and in the alternative for refund of earnest money of Rs.1,00,000/- with interest. 3. By filing written statement, defendants denied execution of agreement of sale, receipt of earnest money of Rs.1,00,000/- and pleaded defendants No.1 & 2 had taken a loan of Rs.40,000/- in security thereof, the respondent No.1/ plaintiff obtained their signatures on blank papers and are dishonestly using the same as agreement of sale. It was further pleaded dispute arose when plaintiff demanded Rs.80,000/- in lieu of loan of Rs.40,000/- which in fact they have repaid. 4. The trial Court, dismissed the suit so far as specific performance of the contract holding: transaction as loan transaction but decreed the suit for refund of earnest money of Rs.1,00,000/- with interest. Hence, this appeal. 5. Shri R.S. Patel, learned counsel appearing for the appellants/defendants would submit: trial Court having found the transaction as loan transaction has erred in granting the decree of refund of earnest money of Rs.1,00,000/- with interest, inasmuch as, the defendants have never received Rs.1,00,000/- from the respondent No.1/plaintiff and a loan of only Rs.40,000/- was taken by them and same has been repaid which is also evident from the statement of defendants and their witnesses. 6. 6. Per contra, Shri Malay Kumar Bhaduri, learned counsel appearing for respondent No. 1/plaintiff, supported the judgment and decree and submited that the trial court has rightly decreed the suit for refund of earnest money of Rs.1,00,000/- with interest, having found plaintiff had paid Rs.1,00,000/- to the defendants, which does not call for any interference. 7. I have heard the counsel appearing for the parties, perused the judgment and decree impugned including record of the trial court. 8. The core question, therefore, arises for determination of this Court is whether or not the trial Court was justified in granting decree of Rs.1,00,000/- with interest @ 9% per annum from the date of institution of suit till its recovery in the facts and circumstances of the case. 9. Plaintiff himself had filed a public notice (Ex.P-12) published by his Advocate in newspaper on 15.02.2004 which goes to show that appellants No.1 and 2 have mortgaged the suit land with him as a security of loan taken by them. The agreement of sale was alleged to be executed on 16.05.2003 i.e. much prior to issuance of public notice on 15.2.2004. In that public notice, the plaintiff also did not mention the amount of loan and/or execution of any agreement on 16.5.2003 by appellants. Public Notice (Ex.P-12) also goes to show, the loan was taken by appellants No. 1 & 2 and not by appellant No. 3. The appellants have also denied the thumb impression of appellant No.3 on Ex.P-1. The trial Court also held, thumb impression of appellant No.3 - Ansuiya Bai on Ex.P-1 is not same as her thumb impression on Exs.P-5 & P-9 i.e. postal acknowledgments. It was not a case of plaintiff when examined in the light of Ex.P-12 that appellant No.3 - Ansuiya Bai had also taken loan from him. Further, why the signature of Appellant No.2 - Ashok Kumar Patel was taken thrice on the first page and twice on the second page of Ex.P1 is also not clear. One of the signature of appellant No. 2 finds place in the middle of the stamp paper. The defendants witnesses have categorically stated, the defendants No.1 & 2 have taken a loan of Rs.40,000/- and have put their signature on the blank stamp papers in security of loan. One of the signature of appellant No. 2 finds place in the middle of the stamp paper. The defendants witnesses have categorically stated, the defendants No.1 & 2 have taken a loan of Rs.40,000/- and have put their signature on the blank stamp papers in security of loan. In view of above, it is crystal clear that appellants have never entered into an agreement of sale with the respondent/plaintiff and the appellants No.1 & 2 have signed the stamp papers as a security of loan taken by them. It is also clear the appellant No.3 did not sign the alleged agreement of sale (Ex.P-1). Once it is held, the parties did not enter into an agreement of sale, no question could arise for refund of sale consideration for the alleged breach of contract on the part of the appellants within the meaning of Section 122 of the Specific Relief Act, 1963 (for short "the Act of 1963"). The agreement of sale (Ex.P-1) being fictitious, no legal right or remedy could be claimed on the basis of the non-compliance of any condition of the said fictitious document. It was for the plaintiff to sue independently of the said document for the recovery of the amount of loan which he had advanced to the defendants and he is not entitled to claim refund of earnest money as envisaged under Section 22 of the Act of 1963 and the decree passed by the trial Court of Rs.1,00,000/- along with interest against the appellants is not sustainable in law. 10. However, in view of specific admission of the appellants that they had taken loan of Rs.40,000/- from the plaintiff and considering the fact that there is no legal evidence available on record showing its refund in equity, in the considered opinion of this Court, plaintiff is entitled for a decree of Rs.40,000/- along with interest @ 6% per annum from the date of institution of suit till its recovery instead of decree of Rs.1,00,000/- as passed by the trial Court. 11. In the result, the first appeal is allowed in part, the judgment and decree dated 03.07.2007 passed by the trial Court is set aside and instead the respondent No.1 /plaintiff is granted decree of Rs.40,000/- along with interest @ 6% per annum from the date of institution of suit till its recovery. 12. 11. In the result, the first appeal is allowed in part, the judgment and decree dated 03.07.2007 passed by the trial Court is set aside and instead the respondent No.1 /plaintiff is granted decree of Rs.40,000/- along with interest @ 6% per annum from the date of institution of suit till its recovery. 12. In the facts & circumstances of the case, parties shall bear their own costs. 13. A decree be drawn accordingly. Appeal Partly Allowed.