SANTOSH MAHOBIYA Vs. MAHENDRA TAMBOLI

JUDGEMENT

(1.) The present appeal is against the judgment and decree dated 02.01.2004 passed in Civil Suit No.7A of 2002 by the 7th Additional District Judge, Durg, whereby the suit for specific performance was dismissed by holding that the sale was ostensible and money was directed to be returned with interest. The instant appeal is by the plaintiff.

(2.) As per the plaint allegation, the defendant Smt. Mahendra Tamboli owned a house admeasuring 322 sq.ft. at Baraipara Durg wherein she is residing and because of some need of money she wanted to sell the same and agreed to sell the same for Rs.1,00,000/- and agreement of sale was executed on 19.08.2000. It was further pleaded that on 19.08.2000 an amount of Rs.60,000/- was paid as an earnest money whereas the rest of the amount of Rs.40,000/- was to be paid on 19.08.2001. The plaintiff stated that as per the terms on 20.08.2001 he went with the amount of Rs.40,000/- to defendant so as to execute the sale deed but the defendant refused to accept the same and thereby refused to execute the sale deed. The plaintiff stated that he was ready and willing to execute the sale deed on his part but breach was committed by the defendant, as such, notice was served to the defendant on 23.08.2001 to execute the sale deed and despite receipt of the notice, the defendant failed to execute the sale deed. Therefore, the suit for specific performance was preferred.

(3.) The defendant filed her written statement and stated that she had not executed any agreement of sale. It is stated that the husband of the defendant had obtained a loan of Rs.40,000/- for his business and when the amount was demanded, the plaintiff stated that he do not have an amount but he will arrange for the same. Therefore, the money was arranged from one Swami Mahant Goutamanand Bramhachari and eventually the amount of Rs.40,000/- was arranged by way of loan. It was further stated that the terms were arrived at that a sham agreement of sale would be executed and in lieu of Rs.40,000/- loan, interest would be of Rs.20,000/- and Rs.60,000/- would be said to have been paid; whereas agreement of ostensible sale of Rs.1,00,000/- was agreed to be executed which would be returned after the amount is paid. The defendant stated therefore an ostensible agreement of sale was executed on 19.08.2001 and only Rs.40,000/- was paid and in lieu thereof the loan amount of Rs.60,000/- was written in the agreement and the actual amount was paid by one Swami Goutamanand Brahmachari, who was a saint. The defendant stated that the alleged agreement of sale was for security and the loan was not meant for any sale.