CHETAN BHARTI Vs. PREMLAL DEWANGAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 3-7-2006 passed by Ist Additional District Judge, Rajnandgaon in Civil Suit No. 48-A of 2003 whereby while refusing to grant a decree for specific performance of contract dated 3-9-2002 in favour of the respondent/plaintiff, it ordered refund of advance of Rs. 70,000/- to the respondent/plaintiff which included interest of Rs. 6,300/- and costs of goods purchased worth Rs. 3,700/- by the defendant on credit from the plaintiff.

(2.) THE respondent/plaintiff filed a Civil Suit No. 48-A of 2003 for specific performance of contract dated 3-9-2002 for sale of the suit house by the respondent. It was alleged that on 3-9-2002 the defendant agreed to sell the suit house to the plaintiff and received an advance of Rs. 60,000/-. THE Ekrarnama was executed by the respondent/defendant acknowledging receipt of Rs. 60,000/-. It was mentioned in the agreement that if the appellant/defendant could not make arrangement for money within next 15 months, he would refund the amount of Rs. 60,000/- to the respondent/plaintiff. THE plaintiff prayed for a decree for specific performance of contract and in the alternative prayed for refund of advance of Rs. 60,000/- with interest of Rs. 6,300/- thereon and also the amount of Rs. 3,700/- towards articles purchased on credit by the defendant from the shop of the plaintiff. THE appellant/defendant while denying the claim in toto pleaded that he did not receive any amount from the respondent/plaintiff and also did not execute any Ekrarnama.

(3.) THE only ground urged by the learned Counsel for the appellant/defendant in this appeal is that once the Court came to the conclusion that the defendant had not agreed to sell the suit house to the plaintiff for a consideration of Rs. 70,000/- on 3-9-2002 and the transaction between the parties was a loan transaction, it had no jurisdiction to order refund of Rs. 70,000/- to the plaintiff from the defendant. On the other hand, the learned Counsel for the respondent/plaintiff argued in support of the impugned judgment and decree while placing reliance on Suresh Chandra v. Satya Narayan , wherein under similar circumstances refund of advance paid by the plaintiff to the defendant was held to be justified.