DURGA PRASAD BISWAL Vs. PURNA CHANDRA PATI

JUDGEMENT

(1.) Defendants in Title Suit No. 10 of 1975 of the Court of Subordinate Judge, Sambalpur, have preferred this appeal challenging to the judgment and decree passed on 4th October, 1978.

(2.) Plaintiff-respondent filed the aforesaid suit for specific performance of contract with respect to plaint-schedule 'A' property and in the alternative to grant a decree for Rs.9,496/- with costs and future interest. In that respect, plaintiff's case is that from 3-5-1972 to 28-5-1972 the defendants borrowed from the plaintiff both in cash and kind i.e., gold and clothings from his shop amounting to Rs. 8,000/-. Having no means to repay the same but acknowledging the amount due, defendants proposed to sell the Schedule 'A' property in favour of the plaintiff to discharge that loan. Accordingly, from the money taken from the plaintiff, defendants purchased non-judicial stamp paper worth Rs. 560/- on 13-5-1972 and a sale deed was scribed on that (Ext. 11). The defendants on a different pretext did not come forward to register that document. Thus, plaintiff obtained a promissory note (Ext. 9) from the defendants for Rs. 8,478.22 paise. While executing that pronote, defendants prayed for a fortnight's time to take a decision relating to sale of the Schedule 'A' property. When the defendants tried to delay the matter, on 5-8-1972 a Panchayati was convened in the village. In that Panchayati defendants admitting their liabilities executed an agreement (Ext. 10) undertaking therein either to repay the whole amount by Phalguna Purnima i.e., by 18-3-1973 or else to liquidate the loan by executing and registering the sale deed for Schedule 'A' land. In spite of such undertakings and promise defendants defaulted in repaying the loan or transferring the Schedule 'A' land and therefore, plaintiff prayed for the relief of specific performance of contract or recovery of the aforesaid amount with costs and future interests.

(3.) Defendants filed a joint written statement denying to the allegation of entering into a contract for sale of Schedule 'A' land at a price of Rs. 8,000/-. They also denied to the liability to the extent of the aforesaid amount, but while admitting about taking clothes and cash etc. on credit, defendants admitted their liability to the extent of Rs. 2,320.20 paise. Defendants also pleaded that plaintiff is a money-lender and therefore his suit is not maintainable.