DHARAMVIR Vs. ASHOK KUMAR

JUDGEMENT

(1.) Heard Shri B.N. Singh, learned Senior Counsel assisted by Shri Akhtar Ali, learned counsel for the appellant and Shri M.K. Gupta, and Shri Ram Kaushik, learned counsel for the respondent who have appeared through Caveat. This is defendant's Second Appeal arising out of Original Suit No. 282 of 2004 which was filed by the plaintiff-respondent for specific performance of an agreement for sale dated 23.12.2003. The suit for specific performance was dismissed by Civil Judge (Senior Division), Kairana, Muzaffar Nagar on 11.2.2010. However, the defendant was directed to return Rs. 57,450.00 to the plaintiff alongwith 6% interest. Against the said judgment and decree plaintiff-respondent filed Civil Appeal No. 17 of 2010 which was allowed on 29.11.2011 by Additional District Judge, Court No. 6, Muzaffar Nagar. Suit for specific performance of the agreement was decreed.

(2.) According to the plaint allegations through an agreement for sale dated 23.12.2003 defendant had agreed to sell his agricultural land comprised in plot No. 48 area 0.924 hectare for Rs. 4 lacs out of which Rs. 3 lacs were received by him as earnest money. The sale-deed was to be executed within a year. In the registered agreement for sale it was shown that earnest money of Rs. 3 lacs had already been received by the defendant in the village. The defendant took up the defence that infact it was a transaction of a loan and defendant was to receive Rs. 2 lacs only which amount was also not paid to him. The further case of the defendant was that the plaintiff had assured him that the document which was being signed by the defendant on 23.12.2003 was a document pertaining to the loan and the loan of Rs. 2 lacs would be paid to the defendant afterwards in the village. The plaintiff had further stated that as the land in dispute was mortgaged hence on the request of the defendant the amount of loan which the defendant had taken from the bank (Rs. 57,450/-) and in lieu whereof he had mortgaged the land in dispute with Sehkari Gramin Vikas Bank Branch Shamli, Muzaffar Nagar was deposited by the plaintiff on 28.5.2004. This deposit was admitted by the defendant however he asserted that without there being any request by him in this regard, plaintiff on his own deposited the amount.

(3.) Defendant could not explain that why he did not initiate any proceeding for recovery of Rs. 2 lac which according to him were to be paid immediately after execution of the deed dated 23.12.2003. He also could not explain that what was the necessity for the plaintiff to deposit in the Bank the loan which was to be paid by the defendant. The Trial Court held that it was the duty of the plaintiff to adduce solid evidence for payment of the amount of Rs. 3 lacs as in the agreement itself it was mentioned that Rs. 3 lacs were not paid before the Sub-Registrar but had already been paid in the village. In the agreement defendant admitted that amount of Rs. 3 lacs had already been received by him. This admission was as good as payment before the Sub-Registrar Defendant did not deny his signatures and photo on the agreement for sale. Defendant had pleaded that he was under the impression that he was executing mortgage deed.