KESHAO BALASA SAOJI Vs. SHASHIKARJANKIRAM SAOJI

JUDGEMENT

(1.) These two appeals are filed by the plaintiff, arising out of two different suits filed by him in the Trial Court and they arose out of the following facts :- Plaintiff filed Regular Civil Suit No. 216 of 1965 against the three defendants, who are members of the joint family. That was a suit for refund of earnest money of Rs. 2,700, plus recovery of Rs. 1,200 by way of damages sustained by the plaintiff on account of the non-performance of the contract of the sale by the defendants. We need not go into the details of the contract, inasmuch as the execution of the contract is admitted by the defendants. The plaintiff alleged that both the defendants accepted Rs. 7,000 from him by agreeing to sell the land to him for the amount of Rs. 13,0 0. They did not execute the sale-deed and hence instead of filing the suit for specific performance of the contract, the plaintiff filed a suit for refund of earnest money with damages. The document of agreement shows that the consideration is made up as follows : Rs. 3,000 paid at the time of the agreement and Rs. 4,000 paid earlier.

(2.) Only the defendant No. 2 appeared in the suit and resisted the plaintiff's claim. He denied that he received Rs. 7,000 under the deed. He admitted that he received only Rs. 3,000 in cash on the date of agreement and according to him an amount of Rs. 2,500 was previously borrowed by him from the plaintiff and it was adjusted towards the consideration of this amount. He contended further that in addition to Rs. 2,500 received by him a further amount of Rs. 1,500 was calculated towards the interest, that is how consideration of Rs. 7,000 was made up in Issar Pavati. He denied that the plaintiff suffered damages to the extent of Rs. 1,200 and, therefore, he denied the plaintiff's claim in that respect.

(3.) Issues were framed, and this suit and the second suit were tried together. The learned Trial Judge rejected the contention of the defendants that Issar Pavati was nominally executed and was not to be acted upon. Similarly he rejected the contention of the defendant that they did not receive Rs. 7,000 under the Issar Pavati. He held further that the plaintiff was entitled to recover only Rs. 300 by way of damages. He held that the suit was maintainable and he held further that the charge for the amount ought to be kept on the suit property. He rejected defendant's contention that the plaintiff was a money lender. Consequently he passed a decree in favour of the plaintiff for Rs. 7,300 with costs and with future interest at 3 per cent per annum from the date of the filing of the suit till realisation.