HARISH KUMAR Vs. SURESH CHAND & OTHERS

JUDGEMENT

(1.) The learned trial Court decreed the plaintiff's suit, for a recovery of a sum of Rs.3,30,000.00, against, defendant No.1 along with interest 6% per annum, from, the date of agreement i.e. 18.12.1995 , till realization thereof, and, with defendant No.1 Harish Kumar, being aggrieved therefrom, hence, has instituted the instant Regular First Appeal, before this Court.

(2.) The plaintiffs' case, in brief, is that they were owners in possession to the extent of 2/3 rd share in the land measuring 1311.13 sq. meters comprised Khewat No.109 min, Khatauni NO.486 min, Khasra Nos. 967 and 969, Up Mahal Kasbati Mehatpur, Tehsil and District Una, H.P., along with six shops on apart thereof. It has been pleaded that the defendants entered into an agreement to purchase the land of the plaintiffs on 18.12.1995. As per the plaintiffs the defendants have already received an amount of Rs.5,00,000.00 on behalf of the prospective vendors, that is, the plaintiffs and their brother Tara Chand. The sale deed was to be executed on or before 15.8.1996 but lateron the time was extended till 14.2.1997. It has pleaded by the plaintiffs that though defendant No.2 had paid money to defendant No.1 but defendant No.1 did not pay the said amount to the plaintiffs and has misappropriated the same. It is further averred that in pursuance to the agreement to sell defendant No.2 was to file a suit for specific performance of contract which was decreed by this Court, on 27.7.2001. During the pendency of that suit the plaintiffs denied that they ever received the amount of earnest money but defendant No.1 contested that payment was made through receipts by this Court held that the same were forged receipts. As per the plaintiffs that defendant No.1 is liable to make the payment qua the share of the plaintiffs out of the amount of Rs.5,00,000.00. Accordingly to the plaintiffs, defendants No.1 and 2 are jointly and severally liable to make the payment to the plaintiffs even if defendant No.2 had paid the money to defendant No.1, who was not authorized to receive the money and defendant No.2 is still liable to pay in case defendant No.1 does not pay the amount to the plaintiff. It has been pleaded that that they are also entitled to the interest on the principal amount at the rate of 10% per annum from the date of the agreement (18.12.1995) till realization thereof. It is further averred that bonafide dispute between the parties started in the year 1997 which ended on July 27, 2001 and the limitation for the recovery of money started from the date of decision of the suit pending between the parties, that is July 27, 2001. The plaintiffs averred that rest of the amount of sale consideration was deposited by defendants in the Registry of this Court and which was lateron withdrawn by the plaintiffs in the year 2002. The defendants were repeatedly asked to pay the amount received by defendant NO.1 having general power of attorney but it was not paid to the bonafide vendors and defendant No.1 has been putting off the payment of the said amount. The plaintiffs averred that defendants connived with each other and did not pay the amount to the prospective vendors.

(3.) The defendants contested the suit and filed separate written statements. Defendant No.1 in his written statement has taken preliminary objections inter alia maintainability of the suit, limitation, cause of action etc. On merits, defendant No.1 averred that plaintiffs and their brother Tara Chand were owner in possession of 1/6 share in the land measuring 7590.76 sq. meters. He denied, if any agreement to sell was executed inter se the defendants and the plaintiff but the same was entered into with defendant No.2 only on 17.12.1995 and 18.12.1995. Defendant No.1 denied that Tara Chand was his father. It is averred that the amount received by him was duly paid to the plaintiffs and Sh. Tara Chand. According to defendant No.1, he never filed any suit for specific performance as alleged. According to him the said suit was filed by defendant No.2 which was decreed on 27.7.2001. According to defendant No.1, there was no dispute in relation to genuineness of receipts executed by the plaintiffs and no issue was framed before the High Court and as such there was no question of deciding this aspect by the High Court. Defendant No.1 alleged that no verdict against him was delivered by the High Court, and, the plaintiffs have no right to file the present suit on the baseless assumptions. According to him, plaintiff No.1 had received Rs.1,00,000.00, and plaintiff No.2 had received Rs.3,00,000.00 out of the earnest money and now the plaintiffs have no right to ask for the amount. Defendant No.2 in his written statement also has taken preliminary objections qua cause of action, limitation and estoppel. On merits, defendant No.2 admitted that plaintiffs were owners in possession of the land in question. Defendant No.2 averred that plaintiffs and their brother Tara Chand through their duly constituted attorney defendant No.1 had agreed to sell the land along with six shops for a total consideration of Rs.14,50,000.00 vide agreement dated 17.11.1995. It is pleaded that plaintiffs and their brother Tara Chand and defendant No.1 failed to perform their part of agreement for sale for which defendant No.2 had to file civil suit No.29 of 1997 against them for specific performance of contract which was decreed by the High Court. He further averred that at the time of execution of the agreement, he paid a sum of Rs.1,00,000.00 to the plaintiffs as earnest money through defendant No.1 and further a sum of Rs.4,00,000.00 was paid by the answering defendant No.18.12.1995 through defendant No.1. It is further averred by defendant No.2 that he deposited Rs.9,50,000.00, the balance amount in the High Court and as such the total amount of Rs.14,50,000.00 stood paid to the plaintiffs. It is pleaded by defendant No.2 that pursuance to the decree dated 27.7.2001 passed by the High Court, the sale deed of the suit land was duly executed on 26.12.2001 and the same was got registered on 16.2.2002 as per directions of the High Court. According to defendant No.2, he is not liable to pay any amount to the plaintiffs and the matter is only between the plaintiffs and defendant No.1 and that he has been falsely impleaded in the suit.