MUKESH PRAKASH PUJARI Vs. MUKUND DAMMANI

JUDGEMENT

(1.) By this appeal under Section 96 of the Code of Civil Procedure, the appellant has challenged the legality and propriety of the judgment & decree dated 12.5.2011 passed by the 3rd Additional District Judge, Raipur, in Civil Suit No.20A/11, whereby the trial Court has decreed the suit for recovery of Rs.7 lacs along with 6% simple interest per annum against the appellant/defendant.

(2.) As per plaint allegation, the respondent entered into an agreement with the appellant for purchase of the land bearing Kh.No.50, area 0.421 hectare situate at village Puraina, P.H.No.113, tahsil and district Raipur at the cost of Rs.125 per sq.ft. Advance was paid on 6.3.2006 and agreement Ex.P/1 was executed. As per condition of the agreement, sale deed was required to be executed within three months of execution of an agreement and in case of any delay the respondent was at liberty to get the sale deed executed in his favour with the intervention of the Court. The appellant instead of showing the original land has shown another land to the respondent. Even the appellant has failed to demarcate the land and to hand over the possession to the respondent. Finally, the land was demarcated at the instance of the respondent and it was noticed that certain person has encroached upon the land. As per pleading, the appellant has cheated the respondent and when it came into notice of the respondent, the appellant has prayed for apology and agreed that after vacating the land from encroachment he will execute the sale deed and in case the sale deed is not executed, then he will return advance along with 1.5% interest per month. The appellant failedito comply with his part and committed fraud, then the respondent filed criminal complaint before the Chief Judicial Magistrate, Raipur in Criminal Case No. 1538/2007 under Sections 406 and 420 of the IPC, which is pending for consideration. On account of such fraud and advance paid to the appellant, the respondent has filed the suit for recovery of Rs.7 lacs along with damages of Rs.3,88,500/-with 1.5% interest per month.

(3.) By filing written statement, the appellant/defendant has denied the adverse allegation and has admitted that the appellant entered into an agreement to sale the land as alleged by the respondent/plaintiff, but advance was not paid in lumpsum, it was paid in different installments of Rs.2,50,000/-, Rs.1,00,000/-, Rs.1,50,000/- and Rs.2,00,000/-. At the time of agreement, some persons were in possession of the part of land, therefore, the appellant entered into an agreement to sell his land at low rate. The respondent was agreed for demarcation, he was having knowledge about encroachment. The respondent failed to comply with his part for execution of sale deed within the stipulated period, therefore, the agreement came to an end automatically. The appellant has not committed fraud upon the respondent. The respondent and one Ramkhilawan forcefully obtained signature of the appellant in four blank cheques and also filed the complaint against him and Ramkhilawan Parghania, jwithess of the agreement, has filed criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 on the basis of alleged blank cheques. On the basis of aforesaid pleading, the appellant has prayed for dismissal of suit.