DINESH CHANDRA PANDEY Vs. MALTI DUBEY

JUDGEMENT

(1.) IN this appeal under section 96 of the Code of Civil Procedure, appellant/plaintiff has called in question tenability of the judgment and decree dated 24.4.2004, passed by IInd Additional District Judge, Jabalpur in Civil Suit No. 5 -B/2003, whereby a suit filed against the respondent/defendant for recovery of Rs. 1,30,000/ - has been dismissed.

(2.) ACCORDING to the plaintiff, he was working as Deputy Chief Engineer in Hindalco Industry Limited, Renukoot, Janpad Sonbhadra, in the State of Uttar Pradesh. He retired in July 1999. His elder brother was a permanent resident at Jabalpur and, therefore, after his retirement plaintiff also came to Jabalpur in the year 1999 and wanted to settle down in Jabalpur and start some business. For this purpose, he was in the look out of a suitable house, to be purchased. It was said that initially the plaintiff started staying with his brother and was looking for a suitable residential house when he came into contract with one Ravi Shankar Dubey, husband of the defendant. It is said that the defendant and her husband became friendly with the plaintiff and started helping him in searching for a suitable house. It is the case of the plaintiff that Shri Ravi Shankar Dubey allured and convinced him that House No. 1023/1, Shastri Nagar, Garha, Jabalpur belonging to the defendant was a good house and the plaintiff was offered the said house at a price of Rs. 3 Lacs. It is stated that the plaintiff started bargaining, as the amount of Rs. 3 Lacs was on the higher side, but ultimately price of Rs. 2,75,000/ - was agreed to, which included not only cost of the house but also the cost for payment of stamp duty, typing, registration etc. It is stated that after a decision was taken to purchase the house on such consideration, the defendant told the plaintiff that she was in need of more money for investment in her business and she demanded a sum of Rs. 1 Lac and offered to pay interest @ 2% and undertook the repay the loan within a year. It is stated that this amount was advanced by cheque. Subsequently, after the house was purchased when the plaintiff found that there was no proper water connection in the house, the plaintiff is said to have paid a sum of Rs. 30,000/ - again by cheque for the purpose of boring, but nothing was done and the boring was also not undertaken. It is also stated that the plaintiff paid a sum of Rs. 2,75,000/ - by cheque on 28.4.2000 for purchase of the house and for the same, a registered sale deed was executed on 4.5.2000.

(3.) SHRI Pranay Verma, learned counsel for the appellant, took me through the statement of the witnesses, the material available on record, the sale -deed in question and tried to argue that once it is clear from the sale deed that the entire amount of consideration for the house amounting to Rs. 2,75,000/ - was paid and nothing further was payable for the purpose of sale consideration, the Court should have recorded a finding that the amount of Rs. 1,30,000/ - was paid as stated by the plaintiff and a decree for the same should have been passed. Learned counsel further stated that the court below held that the suit itself was not maintainable on the ground that payment was made to M/s. Malti Construction and M/s. Malti Construction was not impleaded as a party. It was stated that M/s. Malti Construction was a proprietary concern owned by the defendant and once the defendant was a party in the suit, the finding that the suit is not maintainable without impleading the proprietary concern was a perverse finding. Finally, it was submitted that once payment of Rs. 1,30,000/ - by cheque was proved, the suit should have been decreed.