Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1465 (RAJ)

Om Prakash Nayak v. Isharram Nayak

2018-07-11

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J. - This appeal is directed against the judgment dated 22.3.2018 passed by the Additional District Judge, Anoopgarh Camp Gharsana, District Sriganganagar ('the Appellate Court'), whereby the appeal filed by the appellant against the judgment and decree dated 10.7.2014 passed by the Civil Judge (Junior Division), District Sriganganagar has been rejected. 2. The appellant - plaintiff filed a suit for specific performance in relation to agreement dated 26.6.2007. It was, inter alia, claimed that by the agreement it was agreed between the parties that a sum of Rs. 35,000/- was advanced by the plaintiff to the defendant and in case, the defendant failed to return the amount by 25.6.2008, the land in question would be transferred in favour of the plaintiff @ Rs. 15,000/- per bigha. A sum of Rs. 22,000/- was paid by the defendant on 14.5.2008 and thereafter on the back of the agreement further agreement was entered into between the parties for rest of the amount of Rs. 13,000/- and as the said amount of Rs. 13,000/- was not paid, the appellant - plaintiff was entitled for specific performance of the agreement dated 26.6.2007 as reiterated on 14.5.2008. 3. The suit was contested by the defendant, inter alia, indicating that only an amount of Rs. 35,000/- was taken on interest, out of which, Rs. 22,000/- has already been paid and the defendant went to the plaintiff for giving the rest of Rs. 13,000/-, however, the same has not been accepted with an intention to grab the land in question. It was submitted that as the transaction pertains to loan only, suit for specific performance deserves to be dismissed. 4. The trial court framed four issues and after hearing the parties came to the conclusion that the nature of agreement is such that it cannot be said to be an agreement of sale and consequently, the suit filed by the plaintiff was rejected. 5. Feeling aggrieved, the appellant filed first appeal. 6. The First Appellate Court after hearing the parties, reiterated the finding recorded by the trial court and dismissed the appeal filed by the appellant. 7. It is submitted by learned counsel for the appellant that both the courts below committed error in not properly appreciating the document specially the endorsement dated 14.5.2008 executed by both the parties and, therefore, the judgments impugned deserves to be set aside. 8. 7. It is submitted by learned counsel for the appellant that both the courts below committed error in not properly appreciating the document specially the endorsement dated 14.5.2008 executed by both the parties and, therefore, the judgments impugned deserves to be set aside. 8. Further submissions were made that once the defendant has failed to comply with the stipulations contained in the agreement, the suit for specific performance was very much maintainable and, therefore, the judgments impugned deserves to be set aside. 9. I have considered the submissions made by learned counsel for the appellant and have perused the material available on record. 10. It is not in dispute that the agreement pertain to a loan of Rs. 35,000/- and it was indicated that in default of the payment of Rs. 35,000/-, the land in question would be transferred to the plaintiff. The defendant paid a sum of Rs. 22,000/- on 14.5.2008. On the said date on the back of the agreement while the appellant - plaintiff indicated that the rest of the terms of the agreement would continue, the amount of Rs. 13,000/- be paid by 14.5.2009. However, the defendant made the endorsement simply indicating that after payment of Rs. 22,000/-, Rs. 13,000/- have remained outstanding which would be paid by 14.5.2009. It is also relevant to notice here that on the said date i.e. on 14.5.2009, a promissory note was also got executed from the defendant, which has been marked as Ex.A/2 regarding a sum of Rs. 13,000/-. 11. The very fact that a promissory note independent of the agreement was got executed on 14.5.2009, necessarily shows that instead of the original agreement dated 26.6.2007, a fresh agreement had come into existence between the parties regarding which, the promissory note was executed. The said fact is also fortified from the circumstance that initially when the agreement was for payment of Rs. 35,000/- and condition of transfer was executed between the parties, no such promissory note was got executed. 12. In view of the above facts and circumstances of the case, the dismissal of the suit/appeal by both the courts below cannot be said to be against the material available on record, no interference is required in the judgments impugned. 13. Consequently, there is no substance in appeal filed by the appellant. The same is, therefore, dismissed.