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SUPREME COURT OF INDIA
INDIRA BANERJEE, S. RAVINDRA BHAT, JJ.
M/s Fair Communication and Consultants and Another – Appellants
Versus
Surendra Kerdile – Respondent
Civil Appeal No. 106 of 2010
Decided On : 20-01-2020
Civil Procedure Code, 1908 – Order 37 Rule 1 – Benami Transaction Act,2016 – Sections 3 and 4 – Agreement to sell – Recovery suit – Suit decreed by High Court in appeal – Plaintiff had argued that original of that document was with purchaser – Once these were admitted, plaintiff could not be faulted for seeking consequential amendment, that was purely formal, to back his argument that there was sufficient money, after lending Rs. 80,000/- to defendant, which was deposited in his account – Impugned judgment cannot be faulted on this aspect – Plaintiff did not claim return of any amount from buyer; suit is not based on any plea involving examination of a Benami transaction – Besides, plaintiff is not asserting any claim as Benami owner, nor urging a defense that any property or amount claimed by him is a Benami transaction – Defendant appellant’s argument is clearly insubstantial – Appellants did not prove that transaction (to which they were not parties) was Benami – Defendant/appellants never said that plaintiff or someone other than purchaser was real owner; nor was interest in property, subject matter of recovery suit – Appeal dismissed. (Paras 16, 18, 21 and 22)
Facts of the case:
Present appeal by Special Leave challenges a decision of the Madhya Pradesh, High Court, by which a suit for recovery of Rs. 80,000/- was decreed in appeal. The impugned judgment set aside the judgment and decree of Trial Court.
Findings of Court:
Plaintiff did not claim return of any amount from the buyer; the suit is not based on any plea involving examination of a Benami transaction. Besides, the plaintiff is not asserting any claim as Benami owner, nor urging a defense that any property or the amount claimed by him is a Benami transaction. Therefore, defendant appellant’s argument is clearly insubstantial.
Result : Appeal dismissed.
JUDGMENT :
S. RAVINDRA BHAT, J.
1. This appeal by Special Leave challenges a decision of the Madhya Pradesh, High Court, by which a suit for recovery of Rs. 80,000/- was decreed in appeal. The impugned judgment set aside the judgment and decree of the XIII Additional District Judge, Indore (hereafter “trial court”).
2. The plaintiff (respondent in the present case, referred to hereafter as “Surendra”) is the maternal uncle of the defendant-second appellant (hereafter referred to by his name as “Sanjay”). Sanjay is also the sole proprietor of first appellant/defendant (M/s Fair Communication and Consultants). Surendra filed a suit for claiming recovery of Rs. 1,08,000/- alleging that Sanjay and his proprietorship firm owed money lent. Surendra apparently was a resident of Nashik, but had completed his education at Indore. He was an Engineer employed at Nashik and owned some land and a flat (MIG Scheme No. 54, Indore). As Surendra wished to settle eventually in Nashik, he appointed Sanjay who used to reside in Indore as Power of Attorney and executed a deed of General Power of Attorney (GPA) in favour of Sanjay on 30.09.1989 for that purpose. Sanjay entered into an agreement to sell the property to one Niranjan Singh Nagra (“buyer”) on 30.11.1989 and received a sum of Rs. 50,000/- as earnest money. Surendra alleged that Sanjay called him to Indore on 29.01.1990 and requested that the agreement to sell ought to be the buyer had paid Rs. 80,000/-. This amount was returned by Sanjay. Surendra also alleged that the buyer requested for cancellation of the Power of Attorney which was given to Sanjay. Sanjay requested Surendra for an advance in the sum of Rs. 80,000/- for the expansion of his business, which he was carrying on under the style of the first respondent proprietorship concern. Sanjay assured the plaintiff that he would return the amount shortly. Accordingly, Rs. 80,000/- was given by the plaintiff (Surendra) to Sanjay.
3. Sanjay issued three post-dated cheques for the sum of Rs. 16,500/- and Rs. 3,500/- and Rs. 60,000/- all dated 16.02.1990, drawn on the State Bank of India, Indore Branch. Before the due date, Sanjay requested the plaintiff (Surendra) not to present the cheques for collection for a few months; this request was complied with. The cheques, when presented, were returned by the banker to the plaintiff (Surendra). In these circumstances, the suit for recovery of a sum of Rs. 80,000/- (together with interest @ 12% till the date of the filing of the suit and for future interest, consequently, was instituted.
4. Sanjay, in his written statement denied the suit allegations. However, the written statement did not dispute the execution of the GPA or that he had entered - on behalf of the plaintiff, into the agreement to sell with Niranjan Singh Nagra and obtained Rs. 50,000/- as earnest money. The written statement also did not deny that Sanjay requested Surendra for a loan of Rs. 80,000/- which was given to him. However, in the defense, Sanjay alleged that Surendra asked him to return the amount on the same day i.e. 30.01.1990, which he did. The written statement then alleged that Sanjay repeatedly asked for the return of the three cheques but being the maternal uncle, the plaintiff insisted on keeping the three instruments and prevailed upon him as the elder relative. It was also alleged in the written statement that Sanjay was assured that the cheques would be returned on the next day; however they were never returned.
5. After framing issues and recording evidence, the trial court dismissed this suit. The trial court was of the opinion that the evidence clearly showed that a sum of Rs. 80,000/- had been deposited by Surendra in his bank account and that this circumstance, supported Sanjay’s plea that the amount was returned immediately. The trial court was also of the opinion, that the discrepancy in the amount received towards the sale consideration, casts doubt regarding the veracity of the plaintiff’s claim. Aggriev
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