Judgement Key Points

JUDGMENT :- The short question that arises for determination in this second appeal is whether the appellant-plaintiff is entitled for the refund of earnest money with interest from the date of the suit till realisation.

2. Relevant facts are as under :-

The respondent-defendant No. 1 is the owner of agricultural land bearing survey No. 56/7 admeasuring 2.00 acres situated at village Mohaja. He entered into the agreement of sale on 29-9-1979 in favour of the plaintiff and agreed to sale his land for the consideration of Rs. 4,500/-. The Isar Chitthi was also executed though the possession was not delivered. It was agreed that the balance consideration of Rs. 500/- would be paid at the time of execution and registration of the sale deed on or before 30-9-1980. Thereafter, the plaintiff requested the defendant No. 1 to receive the balance about of Rs. 500/- and to execute the sale deed, but in vain. However, the defendant No. 1 sold the same land to the defendant No. 2 by virtue of the sale deed dated 7-1-1983 and also delivered the possession to him. Thus, the plaintiff had filed suit for specific performance of the contract and in the alternative for refund of the earnest money.

3. The defendant No. 1 combated the claim of the plaintiff and contended that he had executed the agreement of sale in favour of the plaintiff by way of security for the amount of loan borrowed by him. He contended that he had repaid the amount of Rs. 4,200/-inclusive of interest, on 27- 1- 1983 in presence of two witnesses. He contended that the plaintiff's father was carrying on the business of money lending and therefore, he was not entitled to the relief of the specific performance of contract. The learned Civil Judge, Junior Division on considering the evidence adduced before him refused to grant specific performance of the contract but decreed the suit for refund of earnest money of Rs. 4,000/-. Being aggrieved by this judgment, the defendant No.1 carried appeal to the District Court. The learned District Judge allowed the appeal, set aside the decree passed by the trial Court and consequently dismissed the judgment dated 15-12-1989. This is how the plaintiff by invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, filed this appeal restricting his claim to refund the amount of earnest money only.

4. Mr. Deshmukh, the learned counsel for the plaintiff contended that the claim of the plaintiff in this appeal is restricted to refund of earnest money only. He contended that the plaintiff himself is not dealing in money lending business and the property and business of his father is entirely separate and therefore, the learned Additional District Judge could not have declared the father of the plaintiff as money lender in the suit when he was not a party. He contended that the plaintiff had paid the amount of Rs.4,000/- as consideration and the execution of the agreement of sale is not denied. He contended that the defendant No. 1 admitted that he had signed on the blank stamp paper and therefore, the execution of the agreement of sale can be very well presumed especially when the defendant No. 1 would not sign the blank stamp paper. He further contended that the plaintiff is certainly entitled to refund of the earnest money. He pointed out that the Additional District Judge has committed error of law and facts and therefore, the judgment refusing to grant refund of earnest money cannot be sustained in law.

5. The learned counsel for the defendant No. 1 contended that the agreement of sale is said to have been executed on 29-9-1979 but the possession was not delivered. The plaintiff is said to have paid substantial amount i.e. 90%. He contended that the amount of loan was paid to the father of the plaintiff who did not issue any receipt for the said amount and he also did not return the document of agreement of sale on the pretext that the agreement of sale was kept in a locker. He contended that the appellate Court has

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