MURARILAL AND OTHERS Vs. DR. VIJAY KUMAR TAMRAKAR

JUDGEMENT

(1.) 1. This appeal has been directed against the judgment and decree dated 28-11-1998 passed by the Additional District Judge, Pendra Road, District Bilaspur, in Civil Suit No. 5-A/98, whereby a decree for payment of Rs. 1,15,000.00 along with interest at a rate of 12% per annum has been passed in favour of the plaintiff/respondent against defendants/appellants.

(2.) The respondent/plaintiff instituted a suit against the appellants for specific performance of contract and in the alternative for refund of Rs. 1,90,000.00 along with interest at a rate of 12% per annum averring that appellant No.1 on 25-5-1991 took a loan of Rs. 25,000.00 from him. On 10-2-1992 appellant No. 1 for meeting the expenses of marriage of his daughter again demanded loan, therefore, after adjustment and on acknowledging the earlier loan of Rs. 25,000.00 he was paid the loan amount. He executed an agreement on 10-2-1992 and received Rs. 50,000.00 under three cheques issued by the respondent. In 1994 a money decree was passed against appellant No. 1 in favour of State Bank of India and to satisfy the decreetal amount appellant No. 1 was in need of money, therefore, he entered into an agreement with respondent to sell his house which was occupied by respondent in the capacity of tenant. On 2-1-1995 after acknowledging the balance amount, appellant No. 1 further obtained Rs. 40,000.00 towards earnest money, towards the sale transaction. It was agreed in between them that appellant No. 1 after receiving the balance amount will execute the registered sale deed of house in favour of respondent and till then no rent shall be charged and no interest over the loan amount shall be levied, but appellants vide notice dated 24-7-1995 asked the respondent to vacate the suit house and pay the rent and thereby impliedly denied to execute the registered sale deed in favour of respondent.

(3.) Appellants did not dispute that respondent is in occupation of suit house in the capacity of tenant. They also did not dispute that on 25-5-1991 Rs. 25,000.00, on 10-2-1992 Rs. 20,000.00, on 17-2-1992 Rs. 15,000.00 and 20-2-1992 Rs. 15,000.00 has been received by appellant No. 1 from respondent. Execution of agreement dated 10-2-1992 has also not been disputed. Appellant contested the suit on the grounds that the amount of Rs. 25,000.00 taken on 25-5-1991 has been paid earlier to agreement dated 10-2-1992. In satisfaction of agreement dated 10-2-1992, Rs. 25,000.00 has not been paid to him, appellant No.1 never executed agreement to sale. Rs. 40,000.00 received by him was towards sale of his gold. Suit is time barred. Respondent is money lender who did not follow mandates as prescribed under Money Lenders Act.