TEJRAM Vs. PATIRAMBHAU

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the Division Bench of the Bombay High Court, made on July 30, 1985 in First Appeal No. 46/1979.

(2.) The admitted facts are that the appellant had 22.38 acres of land in village Gondia. A document purporting to be an agreement of sale was executed on April 20, 1972 for sale of 11.76 acres out of the said land for a consideration of Rs. 50,000/-. The recital therein and an endorsement on the foot of it is to the effect that a sum of Rs. 48,000/- was received as consideration for sale of the said lands and balance of Rs. 2,000/- was required to be paid within one year and sale deed was required to be executed thereon. Since the sale deed was not executed within one month prior to the date of the expiry of 3 years period from the date of agreement on March 13, 1975, the respondent got issued the suit notice calling upon the appellant to execute the sale deed. On failure thereof, he filed the suit on the last day of the limitation. The trial Court dismissed the suit. But on appeal, the High Court, while rejecting the relief of specific performance, directed payment of a sum of Rs. 62,280/- inclusive of the principal sum of Rs. 48,000/-, interest accrued thereon and cost plus 6% future interest on the principal amount of Rs. 48,000/-. Thus, this appeal by special leave.

(3.) The contention raised by Shri Deshpande, learned counsel for the appellant, is that the High Court and the trial Court concurrently disbelieved the agreement purporting to be for alienation of the land but was, in fact, in truth and in reality a money transaction. Having come to that conclusion, the High Court would have agreed that the amount payable was towards interest on the unpaid loan taken by the appellant from the respondent. On the admitted finding that the respondent was money-lender it would be unlikely that he had paid Rs. 48,000/- as cash consideration for that agreement; and would not have kept quite without asking for the delivery of the possession and then without paying Rs. 2,000/- for 3 years and filing the suit on the last date. Under these circumstances, necessary conclusion would be that the purported endorsement was not, in fact, receipt of the amount but dues owed to him. Shri Uday Umesh Lalit, learned counsel for the respondent, on the other hand, contends that in view of the fact that the respondent executed endorsement as consideration of Rs. 48,000/- for sale transaction and the capacity to pay the amount having not been put in issue, the conclusion reached by the High Court that the amount of Rs. 48,000/- was paid as a fact is a finding of fact. Therefore, it needs no interference.