JUDGMENT : Heard the parties. 2. The appellant-Corporation has preferred this appeal being aggrieved by the judgment and decree dated 25.07.2006 passed by the learned Sub-Judge- I, Hazaribagh, in Money Suit No.07 of 1997 by which the learned Sub-Judge- I, Hazaribagh has dismissed the suit on contest but without cost. 3. The case of the plaintiff in brief is that the plaintiff-Indian Oil Corporation is a body corporate constituted under the Indian Companies Act, 1956. The plaintiff-Corporation invited tender for the purchase of lands at village Kuju under Mandu Police Station within the District of Hazaribagh under the scheme and policy of the government for installing of oil pump. The defendant submitted tender and offered himself to transfer the land of Khata No.2/190, plot No.364/2946, tauzi No.28 consisting an area of 0.20 acres and also the land situated under Khata No.2, plot No.364 consisting an area of 0.12 acres situated at village Kuju, Loha Gate and projected and demonstrated himself as the absolute owner of the aforesaid land having right, title and possession thereof and also produced documents of title to show that the defendant by way of sale-deed, purchased the land situated under Khata No.2, plot No.364, thana No.154 consisting an area of 0.12 acres under registered sale-deed No.10602 on 14.08.1995 and the said land under Khata No.2/190, plot No.364/2946 consisting an area of 0.12 acres was settled by way of settlement by the State of Bihar vide settlement case No.55/88-89 and the paper of settlement with map issued by the Revenue Authority in the name of the defendant and led the plaintiff to believe that the defendant is the absolute owner of the said land. The defendant also placed the certified copy of the order of Mutation Case No.177/95-96 passed in mutation proceeding started on the petition of defendant and the order of Circle Officer, Mandu was passed which were ventilating that the name of the defendant was mutated vide order dated 25.08.1995 with respect to the land of said Khata No.2 consisting an area of 0.20 acres only and the rent receipt with respect to the said land was ordered to be issued in the name of the defendant. The defendant placed and produced the said documents with an intention to make the plaintiff-Corporation believe that the order of mutation has been passed by the Circle Officer, Mandu, confirming that the defendant is rightful owner of the said property and the name of the defendant has been indexed in the Revenue office of the Circle Officer, Mandu. The defendant also produced the certified copy of one Settlement Parcha for an area of 0.12 acres situated under Khata No.2, plot No.364 of village Kuju with map and government rent receipts to show that the said land was settled in his name by the State of Bihar and also projected and demonstrated before the plaintiff-Corporation that the defendant is the absolute owner of the land and had vendible right and title to transfer the land in favour of the plaintiff-Corporation. The plaintiff-Corporation believed in good faith on the basis of the said documents which were showing that the land is free from the area of Central Coalfields Limited and forest area. The plaintiff-Corporation, thereafter, desired to purchase the lands measuring an area of 0.23 acres on good faith and bonafide belief. The defendant offered to transfer the aforesaid land in favour of the plaintiff-Corporation for a total consideration amount of Rs.4,60,000/- as the documents produced by the defendant prima facie were sufficient for the plaintiff-Corporation to believe that the defendant is the owner of the suit land. Hence, the plaintiff-Corporation agreed to purchase the said land. The plaintiff-Corporation purchased Non-Judicial Stamp for execution and registration of sale deed and also paid required fee for execution and registration of the sale deed and the defendant agreed in writing that the cost of stamp purchased is Rs.67,850/- which has been purchased by the plaintiff-Corporation in the name of the defendant and the defendant has executed the letter in favour of Senior Divisional Manager, Indian Oil Corporation Limited, Jamshedpur. Accordingly, after purchase of the stamp by the plaintiff-Corporation in the name of the defendant for execution and registration of the sale-deed, the sale-deed was bought before the District Sub-Registrar, Hazaribagh for execution and registration of the sale deed and on 16.12.1995, the sale-deed was executed by the defendant being Sale Deed No.14978 and registered in favour of the plaintiff-Corporation and a total consideration amount covering in two bank draft that is bank draft No.842030 dated 11.12.1995 for Rs.4,00,000/- and bank draft No.767848 dated 11.12.1995 for Rs.60,000/- both drawn on State Bank of India, Kuju, were given to the defendant in presence of the District Sub-Registrar, Registration Office, Hazaribagh and the said fact was also recited in the Sale Deed No. 14978 dated 16.12.1995. The defendant on 16.12.1995 executed and granted money receipt in favour of the plaintiff-Corporation with respect to the receipt of the total consideration amount of Rs.4,60,000/- for the transfer of land of Khata No.2/190 consisting an area of 0.20 acres of land. In the recital of the Sale Deed No.14978, it is stated that the land transferred to the plaintiff-Corporation through the sale deed is free from charges, encumbrances and also free from any defect of title of the defendant and the sale deed is also vendible that in case any defect of title of the defendant is found, the defendant shall be liable to make all the losses and damages that may be sustained or incurred by the plaintiff-Corporation with the consideration money to the plaintiff-Corporation and that the defendant will be solely responsible for losses if the said property is not found free from all encumbrances at any point of time. The defendant had also promised to refund the consideration amount with all expenses done by the plaintiff-Corporation for transfer of the said land. After purchase of the said land vide Sale Deed No.14978 dated 16.12.1995, the plaintiff-Corporation obtained certified copy of the said sale deed from the office of the District Sub-Registrar, Hazaribagh and applied for mutation of the name of the plaintiff-Corporation before the Circle Officer, Mandu with respect to the said land. The Circle Officer, Mandu disclosed the fact that the land purchased by the plaintiff-Corporation from the defendant is not free from encumbrances and the mutation order in the name of the defendant was wrongly passed and the defendant is not the owner of the land transferred by him. The Circle Officer, Mandu disclosed the fact that the land purchased by the plaintiff-Corporation from the defendant is not free from encumbrances and the mutation order in the name of the defendant was wrongly passed and the defendant is not the owner of the land transferred by him. Then the plaintiff-Corporation came to know that the defendant had cheated the plaintiff-Corporation and made false demonstration of the documents of title with intention to deceive the plaintiff-Corporation and the plaintiff-Corporation had been duped and cheated by the fraudulent acts of the defendant. The plaintiff-Corporation further asserted that the defendant was of full knowledge on the day of execution, presentation and registration of the Sale Deed No.14978 dated 16.12.1995 that he is not the proprietor of the land mentioned in the said sale deed. When approaches were made to the defendant by the agency of the plaintiff-Corporation regarding the commission of cheating and deception, the defendant conceded and became ready to refund the amount of Rs.5,46,250/- to the plaintiff-Corporation being consideration amount, cost of stamp, court-fee, amount and allied expenses and in confirmation to his promise, the defendant submitted an application before the Land Reforms Deputy Collector, Ramgarh under his own signature admitting to return the suit amount due to defect of title land sold/transferred by him in favour of the plaintiff-Corporation and the defendant also on 19.03.1996 executed declaration bond in favour of the plaintiff-Corporation and agreed and promised to pay/return the consideration amount, stamp charges, court-fee and other allied expenses borne by the plaintiff-Corporation. In spite of the promise made by the defendant when he failed to deposit the agreed amount, the plaintiff-Corporation approached to the defendant through its agency for payment of the agreed amount. Then the defendant in confirmation of his promise to pay the agreed amount, deposited a demand draft No.0559276 dated 08.04.1996 of Rs.43,000/- in the office of the plaintiff-Corporation at Jamshedpur on 09.04.1996 and declaration bond was also executed by the defendant and submitted in favour of the plaintiff-Corporation in presence of witnesses. In the declaration bond it was clearly stated by the defendant that he will pay the rest outstanding amount to the plaintiff-Corporation by March, 1997 and this fact clearly goes to show that the defendant has fully agreed and conceded to return the agreed amount to the plaintiff-Corporation. In the declaration bond it was clearly stated by the defendant that he will pay the rest outstanding amount to the plaintiff-Corporation by March, 1997 and this fact clearly goes to show that the defendant has fully agreed and conceded to return the agreed amount to the plaintiff-Corporation. A criminal prosecution was also instituted by the plaintiff-Corporation vide Complaint Case No.54 of 1997 involving the offence punishable under Section 420 of the Indian Penal Code before the Chief Judicial Magistrate, Hazaribagh. When again, the plaintiff-Corporation approached the defendant through its agency, the defendant on 06.10.1996 promised to pay the plaintiff-Corporation a sum of Rs.1,00,000/- out of the outstanding amount by 16.10.1996 but he failed to deposit the said promised amount. The defendant even agreed that he is ready to transfer his truck in favour of the plaintiff-Corporation which was purchased by the defendant out of the amount received by the defendant from the plaintiff-Corporation. The defendant deposited a sum of Rs.1,03,000/- by different demand drafts details of which are:- Demand Draft No.0559276 of Rs.43,000/- on 08.04.1996, Demand Draft No.0560384 of Rs.20,000/- on 18.10.1996, Demand Draft No.0560467 of Rs.10,000/- on 01.11.1996, Demand Draft No.0561166 of Rs.10,000/- on 13.02.1997, Demand Draft No.0561297 of Rs.10,000/- on 25.02.1997 and Demand Draft No.0561465 of Rs.10,000/- on 12.03.1997 and the plaintiff-Corporation filed the suit for recovery of the amount of Rs.4,43,250/- with waiver and interest @ 12% per annum and cost of the suit. 4. After filing of the suit, the defendant did not file written statement within the stipulated time and the defendant was debarred from filing the written statement and the suit was allowed to be proceeded without the written statement after which the plaintiff-Corporation adduced the evidence and the date was fixed for argument as is evident from the order dated 07.01.2003 after the suit was fixed for argument, the defendant appeared in the court with a written statement. His plea for the acceptance of the written statement was allowed subject to payment of cost of Rs.1,000/- to the plaintiff-Corporation vide order dated 12.05.2003. But the defendant did not pay the cost. Hence, vide order dated 19.04.2004, the written statement filed by the defendant was not taken up for consideration. 5. In support of its case, the plaintiff-Corporation altogether examined four witnesses and proved the following documents:- (i) Ext. 1 is declaration bond of the defendant dated 19.03.1996. (ii) Ext. But the defendant did not pay the cost. Hence, vide order dated 19.04.2004, the written statement filed by the defendant was not taken up for consideration. 5. In support of its case, the plaintiff-Corporation altogether examined four witnesses and proved the following documents:- (i) Ext. 1 is declaration bond of the defendant dated 19.03.1996. (ii) Ext. 2 is second declaration bond of defendant dated 09.04.1996. (iii) Ext. 4 is a letter issued from the defendant to the Senior Divisional Manager which was given after advertisement of the plaintiff-Corporation in which he proposed to sell his land to the plaintiff-Corporation. (iv) Ext. 5 is the certified copy of sale deed No.14978. 6. The learned trial court after considering the evidence in the record held that the plaintiff-Corporation could not prove that the said land is defective and it did not make the Circle Officer, Mandu a party to the suit. Further, the trial court observed that the plaintiff-Corporation did not submit any paper to show that on what ground the Circle Officer has detected that the said land was defective because the circle Officer is not a competent authority to determine the title of a person in respect of a land. Hence, it was held by the learned trial court that the plaintiff-Corporation has not been able to prove that the suit land is defective and as the plaintiff-Corporation has not cancelled the sale deed hence, the plaintiff-Corporation is not entitled to receive back the consideration amount. The learned trial court also found fault in the signature of the witness not tallying with the signature on Ext. 1 and also not tallying with signature of the P.W.2. Hence, it held that much reliance cannot be placed on Ext. 2 and also observed that since the defendant has been debarred from filing the written statement, hence, the plaintiff has to stand on its own leg and the plaintiff-Corporation having failed to prove its case and dismissed the suit on contest. 7. Mr. V. Shivnath, learned senior counsel appearing for the plaintiff-Corporation submits that the impugned judgment and decree passed by the learned trial court is contrary to law and against the weight of evidence in record. 7. Mr. V. Shivnath, learned senior counsel appearing for the plaintiff-Corporation submits that the impugned judgment and decree passed by the learned trial court is contrary to law and against the weight of evidence in record. It is further submitted that the learned trial court failed to appreciate the documents put forth by the plaintiff-Corporation in its proper perspective and it erred in holding that the plaintiff-Corporation has failed to establish that the title of the defendant over the suit land was defective. It is further submitted that the learned trial court misdirected itself by observing that the plaintiff has got the sale deed executed by the defendant marked Ext. 5 cancelled and it is lastly submitted that the impugned judgment and decree being not sustainable in law, be set aside and the suit of the plaintiff be decreed with cost. 8. Mr. Amit Kumar Sinha, learned counsel for the respondent, on the other hand defended the impugned judgment and submitted that pleading and evidence in the record is inadequate to establish the plea of the plaintiff that the defendant was having a defective title in respect of the property allegedly sold by the defendant to the plaintiff and the learned trial court has rightly dismissed the suit. Hence, it is submitted that this appeal, being without any merit, be dismissed. 9. Having heard the submissions made at the Bar and after going through the record, this Court is of the considered view that the only point for determination in this appeal is:- “Whether the learned court below, in view of the evidence in the record, was right in dismissing the suit of the plaintiff-Corporation?” 10. Out of the four witnesses examined by the plaintiff-Corporation, the P.W.1- Shree Nivasan Arunachalam is an officer of the plaintiff-Corporation. He has stated that he is Assistant Manager in Law Department of the plaintiff-Corporation and he is also the power of attorney holder on behalf of the plaintiff-Corporation. He has corroborated the averments made in the plaint including the admission of the defendant at different times regarding his liability to pay the money claimed by the plaintiff-Corporation in the suit and that the defendant has even already paid part of the amount to the plaintiff-Corporation. 11. P.W.2- Mukul Kumar was posted as Assistant Manager (Sales) in Hazaribagh in the plaintiff-Corporation in 1995. He has also corroborated the averments made in the plaint. 12. 11. P.W.2- Mukul Kumar was posted as Assistant Manager (Sales) in Hazaribagh in the plaintiff-Corporation in 1995. He has also corroborated the averments made in the plaint. 12. P.W.3- Dilip Kumar is an Assistant in Registry Office, Hazaribagh. He was examined on being notice issued by the court. He could not say whose signature is appearing on the sale deed No.14978. On the prayer of the plaintiff he was recalled and re-examined on oath and he produced the original sale deed bearing No.14978 dated 15.12.1996. 13. P.W.4- Parmeshwar Sah is the typist who proved the registered sale deed which was marked Ext. 5. To a question from the court he has stated that he knows the defendant for 20-25 years. While deposing to court he has stated that Pankaj Kumar, the typist, is not coming to court now. 14. Perusal of the declaration bond marked Ext. 1 reveals that therein the defendant has admitted that there are certain defect of his title over the land sold by him to the plaintiff-Corporation which he came to know from the Revenue Officer, Mandu. Hence, he declared that he will pay the consideration amount with other expenses borne by the company with damages and losses caused to the plaintiff-Corporation. Similarly, the perusal of the declaration bond which has been marked Ext. 2 reveals that the contents of the same are also to the same effect as the Ext. 1. Perusal of the registered sale deed executed by the defendant in favour of the plaintiff-Corporation reveals that there is recital in the said sale deed to the effect that the land if found defective, the defendant will refund the consideration money. In view of these evidence in the record, particularly the contents of the Exts. 1 and 2, it is crystal clear that the defendant himself has admitted therein that there is defect in his title over land sold by him to the plaintiff-Corporation. The testimonies of the P.W.1 and P.W.2 have remain unchallenged in the absence of any cross-examination of them by the defendant as though the defendant was appearing in the suit all along during trial yet he did not choose to cross-examine the witnesses of the plaintiff-Corporation. The testimonies of the P.W.1 and P.W.2 have remain unchallenged in the absence of any cross-examination of them by the defendant as though the defendant was appearing in the suit all along during trial yet he did not choose to cross-examine the witnesses of the plaintiff-Corporation. Thus this court is of the considered view that the documentary evidence marked Exhibits 1 and 2 corroborated by the testimonies of the P.W.1 and P.W.2 are sufficient to establish the case of the plaintiff-Corporation that there was defect in title of the defendant. More so, in the absence of any pleading or evidence to the contrary put forth by the defendant. Hence, I have no hesitation in holding that the findings of the learned trial court that the plaintiff-Corporation has failed to prove that there was defect in the title of the defendant is perverse and is liable to be set aside. So far as the observation of the learned trial court that the plaintiff-Corporation should have cancelled the sale deed by the competent court of law is concerned, once it is established that the defendant was not having vendible title of the land mentioned in the sale deed obviously no title of any land has been transferred by execution of the sale deed by the defendant to the plaintiff-Corporation. In this backdrop the plaintiff-Corporation not making any prayer of the cancellation of the said sale deed, certainly cannot be a ground to deny the relief of claim of refund of the consideration money and other expenses which indisputably the defendant is liable to pay to the plaintiff-Corporation and part of which he has already paid without demur. 15. Accordingly, the judgment and decree dated 25.07.2006 passed by the learned Sub-Judge- I, Hazaribagh, in Money Suit No.07 of 1997 being not sustainable in law is set aside. 16. So far as the claim of the plaintiff-Corporation is concerned, in the absence of any contract for any right of interest, the claim of pendelite and future interest @ 12% per annum appears to be excessive and the plaintiff-Corporation will be entitled to get interest @ 6% per annum from the date of filing of the suit. 17. Accordingly, the suit of the plaintiff-Corporation is decreed to the aforesaid extent. 18. 17. Accordingly, the suit of the plaintiff-Corporation is decreed to the aforesaid extent. 18. The defendant is directed to pay Rs.4,43,250/- along with pendelite and future interest @ 6% simple interest per annum from the date of filing of the suit that is on 03.04.1997 till the date of payment within three months from the date of this decree; failing which the plaintiff-Corporation will be entitled to levy execution of the same as per law. 19. Accordingly, this appeal is allowed but in the circumstances without any cost. 20. Let the lower court records be sent back to the learned court below along with a copy of this judgment forthwith. Appeal allowed.