SHANKAR CHAUHAN Vs. SUNIL KUMAR GOEL

JUDGEMENT

(1.) The challenge by means of the first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 13.3.1997 whereby the suit for specific performance of the Respondent/Plaintiff was decreed. The property in question is the property bearing No. WZ-899, Pankha Road, New Delhi and the agreement to sell is dated 10.3.1996 whereby the property was agreed to be sold for a sum of Rs. 2,55,000/- and of which a sum of Rs. 1,55,000/- was paid in cash on the execution of the agreement to sell. This agreement to sell is in fact not in the format of an agreement to sell but is in fact a receipt of a few lines. This receipt is in Hindi and therefore it is not possible to reproduce the same. This receipt is not an exhibited document before the trial Court and has only been marked as "Mark A?.

(2.) There is no dispute that this receipt was executed between the parties. The issue which arose for determination was whether this agreement as comprised in receipt dated 10.3.1996 was cancelled between the parties and the Appellant/Defendant refunded the amount to the Respondent/Plaintiff. The trial Court has held that the Respondent/Plaintiff had not received back the amount which was paid in cash on three occasions and on one occasion by means of a self-cheque and hence the case of the Appellant was disbelieved that the agreement/receipt stood cancelled as the same was torn when the transaction was cancelled by return of the moneys.

(3.) For disbelieving the Appellant that the transaction was cancelled the trial Court has relied upon the inconsistency in deposition of the Appellant and the witnesses of the Appellant in that whereas the Appellant stated that the receipt dated 10.3.1996 was torn by himself, the two witnesses, (one being the father of the Appellant) deposed that the receipt dated 10.3.1996 was torn by the Respondent/Plaintiff.