SHIVCHARAN Vs. MOHANLAL

JUDGEMENT

(1.) THE appellant/defendant has preferred this appeal being aggrieved by the judgment and decree dated 11. 9. 95 passed by the District Judge, Sagar in Civil original Suit No. 5-A/95 whereby the suit of the respondent No. 1 has been decreed against him to refund Rs. 55,000/-along with interest.

(2.) THE facts giving rise to this appeal in short are that the respondent No. 1 filed the suit against the appellant for specific performance on the basis of the agreement to sale dated 24. 9. 93 with alternative prayer to pass the decree for refunding the earnest money. As per averment of the plaint, the aforesaid agreement took-place between the parties in respect of the land comprising Survey no. 132/2 area 3 acre and Survey No. 132/4 area 2 acre, total 5 acres situated at village Sattadhana. As per terms of the contract the appellant agreed to sale the aforesaid land in consideration of Rs. 1,05,000/-, out of which Rs. 55000/-was paid to him by to the appellant as earnest money. As per further terms, the registered sale-deed was to be executed by the appellant in favour of the respondent No. 1 within a year after receiving the remaining consideration. At the time of execution of the agreement, the Bhu-Adhikar Rin Pustika and copy of B-1 Khatoni of the aforesaid land was also given to respondent No. 1. After 8-9 months from the date of the agreement, in order to perform his part of the contract, he asked the appellant to execute the sale-deed after taking the remaining consideration. He also sent a notice dated 9. 12. 94. The same was returned back with an endorsement "refused to take". Accordingly, the respondent No. 1 was remain ready and willing to perform his part of the contract while the appellant has not performed his part in this regard by executing the sale deed. With these pleadings the aforesaid suit was filed.

(3.) IN the written statement of appellant/defendant, the execution of the agreement and receiving the earnest consideration of Rs. 55000/-are denied. In addition, it is pleaded that the appellant took Rs. 5000/-from the respondent as loan. At the time of such transaction, the alleged stamp was given to the respondent No. 1 and on repayment of the loan amount the aforesaid document was to be returned to the appellant. Such amount has been refunded, inspite it, such document are not returned by the respondent No. 1. It is also pleaded that the land along with one house and its Well, is belonging to the joint family having the worth of Rs. 5 lacs. The respondent No. 1 took its Bhu-Adhikar Rin Pustika, copies of Khasra and B-1 Khatoni by giving an assurance that with the assistance of his relatives, he will make available the loan to the appellant from Tehsil. Subsequently, the respondent No. 1 filed the suit on false pretext. Besides this, rs. 5000/- is also claimed as special damages under Section 35-A of the C. P. C.