Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1654 (HP)

Harish Kumar v. Suresh Chand

2018-09-13

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The learned trial Court decreed the plaintiff's suit, for a recovery of a sum of Rs.3,30,000/-, against, defendant No.1 along with interest 6% per annum, from, the date of agreement i.e. 18.12.1995 , till realization thereof, and, with defendant No.1 Harish Kumar, being aggrieved therefrom, hence, has instituted the instant Regular First Appeal, before this Court. 2. The plaintiffs' case, in brief, is that they were owners in possession to the extent of 2/3 rd share in the land measuring 1311.13 sq. meters comprised Khewat No.109 min, Khatauni NO. 486 min, Khasra Nos. 967 and 969, Up Mahal Kasbati Mehatpur, Tehsil and District Una, H.P., along with six shops on apart thereof. It has been pleaded that the defendants entered into an agreement to purchase the land of the plaintiffs on 18.12.1995. As per the plaintiffs the defendants have already received an amount of Rs.5,00,000/- on behalf of the prospective vendors, that is, the plaintiffs and their brother Tara Chand. The sale deed was to be executed on or before 15.8.1996 but lateron the time was extended till 14.2.1997. It has pleaded by the plaintiffs that though defendant No.2 had paid money to defendant No.1 but defendant No.1 did not pay the said amount to the plaintiffs and has misappropriated the same. It is further averred that in pursuance to the agreement to sell defendant No.2 was to file a suit for specific performance of contract which was decreed by this Court, on 27.7.2001. During the pendency of that suit the plaintiffs denied that they ever received the amount of earnest money but defendant No.1 contested that payment was made through receipts by this Court held that the same were forged receipts. As per the plaintiffs that defendant No.1 is liable to make the payment qua the share of the plaintiffs out of the amount of Rs.5,00,000/-. Accordingly to the plaintiffs, defendants No.1 and 2 are jointly and severally liable to make the payment to the plaintiffs even if defendant No.2 had paid the money to defendant No.1, who was not authorized to receive the money and defendant No.2 is still liable to pay in case defendant No.1 does not pay the amount to the plaintiff. Accordingly to the plaintiffs, defendants No.1 and 2 are jointly and severally liable to make the payment to the plaintiffs even if defendant No.2 had paid the money to defendant No.1, who was not authorized to receive the money and defendant No.2 is still liable to pay in case defendant No.1 does not pay the amount to the plaintiff. It has been pleaded that that they are also entitled to the interest on the principal amount at the rate of 10% per annum from the date of the agreement (18.12.1995) till realization thereof. It is further averred that bona-fide dispute between the parties started in the year 1997 which ended on July 27, 2001 and the limitation for the recovery of money started from the date of decision of the suit pending between the parties, that is July 27, 2001. The plaintiffs averred that rest of the amount of sale consideration was deposited by defendants in the Registry of this Court and which was lateron withdrawn by the plaintiffs in the year 2002. The defendants were repeatedly asked to pay the amount received by defendant NO.1 having general power of attorney but it was not paid to the bona-fide vendors and defendant No.1 has been putting off the payment of the said amount. The plaintiffs averred that defendants connived with each other and did not pay the amount to the prospective vendors. 3. The defendants contested the suit and filed separate written statements. Defendant No.1 in his written statement has taken preliminary objections inter alia maintainability of the suit, limitation, cause of action etc. On merits, defendant No.1 averred that plaintiffs and their brother Tara Chand were owner in possession of 1/6 share in the land measuring 7590.76 sq. meters. He denied, if any agreement to sell was executed inter se the defendants and the plaintiff but the same was entered into with defendant No.2 only on 17.12.1995 and 18.12.1995. Defendant No.1 denied that Tara Chand was his father. It is averred that the amount received by him was duly paid to the plaintiffs and Sh. Tara Chand. According to defendant No.1, he never filed any suit for specific performance as alleged. According to him the said suit was filed by defendant No.2 which was decreed on 27.7.2001. Defendant No.1 denied that Tara Chand was his father. It is averred that the amount received by him was duly paid to the plaintiffs and Sh. Tara Chand. According to defendant No.1, he never filed any suit for specific performance as alleged. According to him the said suit was filed by defendant No.2 which was decreed on 27.7.2001. According to defendant No.1, there was no dispute in relation to genuineness of receipts executed by the plaintiffs and no issue was framed before the High Court and as such there was no question of deciding this aspect by the High Court. Defendant No.1 alleged that no verdict against him was delivered by the High Court, and, the plaintiffs have no right to file the present suit on the baseless assumptions. According to him, plaintiff No.1 had received Rs.1,00,000/-, and plaintiff No.2 had received Rs.3,00,000/- out of the earnest money and now the plaintiffs have no right to ask for the amount. Defendant No.2 in his written statement also has taken preliminary objections qua cause of action, limitation and estoppel. On merits, defendant No.2 admitted that plaintiffs were owners in possession of the land in question. Defendant No.2 averred that plaintiffs and their brother Tara Chand through their duly constituted attorney defendant No.1 had agreed to sell the land along with six shops for a total consideration of Rs.14,50,000/- vide agreement dated 17.11.1995. It is pleaded that plaintiffs and their brother Tara Chand and defendant No.1 failed to perform their part of agreement for sale for which defendant No.2 had to file civil suit No.29 of 1997 against them for specific performance of contract which was decreed by the High Court. He further averred that at the time of execution of the agreement, he paid a sum of Rs.1,00,000/- to the plaintiffs as earnest money through defendant No.1 and further a sum of Rs.4,00,000/- was paid by the answering defendant No.18.12.1995 through defendant No.1. It is further averred by defendant No.2 that he deposited Rs.9,50,000/-, the balance amount in the High Court and as such the total amount of Rs.14,50,000/- stood paid to the plaintiffs. It is pleaded by defendant No.2 that pursuance to the decree dated 27.7.2001 passed by the High Court, the sale deed of the suit land was duly executed on 26.12.2001 and the same was got registered on 16.2.2002 as per directions of the High Court. It is pleaded by defendant No.2 that pursuance to the decree dated 27.7.2001 passed by the High Court, the sale deed of the suit land was duly executed on 26.12.2001 and the same was got registered on 16.2.2002 as per directions of the High Court. According to defendant No.2, he is not liable to pay any amount to the plaintiffs and the matter is only between the plaintiffs and defendant No.1 and that he has been falsely impleaded in the suit. 4. The plaintiffs filed replication, to, the written statements of the defendants, wherein, they denied the contents of the written statements, and, re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs are entitled for the recovery of Rs.5,50,000/- as alleged, if so from whom? OPP. 2. Whether defendant No.1 had already made the payment of Rs.1,00,000/- to plaintiff No.1 and Rs. 3,00,000/- to plaintiff No.2 out of earnest money, as alleged, if so its effect? OPD. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the suit is barred by limitation? OPD 5. Whether the plaintiffs have no cause of action? OPD. 6. Whether the plaintiffs are estopped to file the suit by their act and conduct? OPD 7. Whether the suit is bad for non joinder of necessary parties, as alleged? OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, hence, decreed, the, suit of the plaintiffs/respondents herein. Now defendant No.1/appellant herein, being aggrieved therefrom, has, instituted the instant Regular First Appeal, before, this Court, wherein, he assail the findings recorded, in its impugned judgment and decree, by the learned trial Court. 7. Previous Civil Suit bearing No. 29 of 1997, was, instituted before this Court, and, therein one Shashi Pal Chaudhary, claimed rendition of a decree, of, specific performance, of, apt agreement, enclosed therein as Ex.PW7/A. The decree was espoused to be renderable, upon, one Raghunath, one Tara Chand, and, upon one Harish Kumar, and, the last of the aforesaid, is, the defendant in the instant suit. This Court had, upon, the aforesaid Civil Suit, hence, rendered, a, decree for specific performance, of, an agreement borne, therein, as, Ex.PW7/A. However, therein, a, right was reserved, vis-a-vis defendants No.1 and 3, to proceed against defendant No.4, namely, Harish Kumar for recovering from him, their share out of the amount of sale consideration, of, Rs.5,00,000/-, as, received by, the, latter from the plaintiff, in, the capacity, of, his being, their attorney. The verdict, upon, the aforesaid civil suit came to be rendered by this Court, on, 27th July, 2001. The plaintiffs herein proceeded, to, in consonance therewith, hence institute the instant civil suit bearing No. 4 of 2002, on 15.06.2002. Since as aforestated Civil Suit No. 4 of 2002 stands decreed by the learned trial Court, hence, the instant appeal. 8. Apparently, the plaintiffs herein, were arrayed as defendants No.1 and 3, in the earlier suit, bearing Civil Suit No. 29 of 1997, along with them, one Harish Kumar was arrayed as defendant No.4 therein. Defendants No.1 and 3, had contested qua defendant No.4, in his drawing Ex.PW7/A, with the plaintiff therein, purportedly on anvil, of, his being their General Power of attorney, borne and enclosed therein as Ex.PW11/A, rather his not holding any valid authorisation, (a) given Ex.PW11/A being a sequel, of, fraud and misrepresentation. However, the aforesaid plea reared therein, by defendants No.1 and 3, vis-a-vis, the validity of Ex.PW11/A, was not accepted by this Court. However, the aforesaid plea reared therein, by defendants No.1 and 3, vis-a-vis, the validity of Ex.PW11/A, was not accepted by this Court. With the apt liberty, being preserved, vis-a-vis, defendants No.1 and 3, the plaintiffs herein, both whereof stood, arrayed in the aforesaid capacity, in, Civil suit No. 29 of 1997, by this Court, while recording a verdict, upon, the aforesaid civil suit, hence, (I) the findings returned by the learned trial Court, qua exhibit DW2/B, and, Ex.DW2/C, purportedly comprising the receipts issued by the plaintiffs/respondents herein, vis-a-vis, one Harish Kumar, and, appertaining to theirs, purportedly receiving a part, of, the sale consideration, from, one Harish Kumar, the appellant herein, and, in contemporaneity, vis-a-vis, the execution of Ex.PW7/A, rather being, unreliable and no credence being meteable thereon, are both valid and apt findings, given (a) theirs being anvilled, upon, the report of the handwriting expert, borne in Ex.PW3/A. The apt tenable reliance being placed, upon, Ex.PW3/A by the learned trial Court, in decreeing, the plaintiffs/respondents' suit, for, recovery of a sum of Rs.3,30,000/- along with interest at the rate of 6% per annum, from, the date of agreement till its realization, is also hence not amenable for interference; (b) nor the appellant herein can contend, that, with the suit being filed belatedly since 19.12.1995, the, decree is interferable, (I) given the plaintiffs in Civil Suit No. 29 of 1997, rearing a contention in the written statement qua the apt General Power of attorney, enclosed therein as Ex.PW11/A, being a sequel of fraud, and, misrepresentation; (b) also when hence they were barred to in the alternative thereto, in the earlier suit, rear ,a, contradictory plea, of, one Harish Kumar, appellant herein in contemporaneity, vis-a-vis, execution of Ex.PW7/A, despite, his receiving, the, apt part of the sale consideration, hence, from one Shashi Pal Chaudhary, rather his not liquidating their proportionate share therein; (iii) besides when, hence, in the earlier civil suit, there, was no efficacious remedy hence recourseable by the plaintiffs/respondents herein, given theirs thereat standing arrayed as defendants No.1, and, 3, and, with the appellant herein being therein arrayed along with them, as, co-defendant No.4, to, rather within the ambit, of, any statutory provisions, borne in the CPC. rear any claim, for, recovery of the decretal amount, from, the appellant herein. 9. rear any claim, for, recovery of the decretal amount, from, the appellant herein. 9. The above discussion, unfolds, the fact that the conclusions as arrived by the learned District Judge, Una, being based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned trial Court has not excluded germane and apposite material from consideration. 10. In view of above discussion, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the judgment and decree rendered by the learned District Judge, Una, upon, Civil Suit No. 4 of 2002, is, affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.