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2007 Supreme(Chh) 262
2007 (2) C.G.L.J. 186
IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
Dilip Raosaheb Deshmukh, J.
Chetan Bharti ...Petitioner
VERSUS
Premlal Dewangan ...Respondent
F.A. No. 140 of 2006
Decided On: 10/04/2007
Shri Abhishek Verma Counsel for the appellant defendant
Shri V K Sharma Counsel for the respondent plaintiff
The court's decision was based on the discretionary powers under the Specific Relief Act, considering the nature of the transaction and the equitable relief available.
Headnote:
Specific Performance - Contract for sale of immovable property - Specific Relief Act, 1963, Section 20, Section 22
Fact of the Case:
The plaintiff filed a suit for specific performance of a contract for the sale of a house. The defendant denied receiving any amount or executing any agreement. The trial court found in favor of the plaintiff, but refused specific performance, ordering refund of the advance and costs of goods purchased on credit.
Finding of the Court:
The court found that the defendant had executed the agreement and received the advance, but concluded that the transaction was a loan, not a sale. The court ordered refund of the advance and costs of goods purchased on credit.
Issues: The main issue was whether the transaction was a sale or a loan, and whether specific performance should be granted.
Ratio Decidendi: The court exercised discretion under Section 20 of the Specific Relief Act, finding that the transaction gave the plaintiff an unfair advantage and involved hardship on the defendant. The court also relied on Section 22 to order refund of the advance and costs.
Final Decision: The appeal was dismissed, affirming the lower court's decision to refuse specific performance and order refund of the advance and costs.
This appeal is directed against the judgment and decree dated 3.7.2006 passed by 1st Additional District Judge, Rajnandgaon in Civil Suit No. 48-A of 2003 whereby while refusing to grant a decree for specific performance of contract dated 3.9.2002 in favour of the respondent/plaintiff, it ordered refund of advance of Rs.70,000/- to the respondent/plaintiff which included interest of Rs.6,300/- and costs of goods purchased worth Rs.3,700/- by the defendant on credit from the plaintiff.
2. The respondent/plaintiff filed a Civil Suit No. 48- A of 2003 for specific performance of contract dated 3.9.2002 for sale of the suit house by the defendant. It was alleged that on 3.9.2002 the defendant agreed to sell the suit house to the plaintiff and received an advance of Rs.60,000/-. The Ekrarnama was executed by the respondent/defendant acknowledging receipt of Rs.60,000/-. It was mentioned in the agreement that if the appellant/defendant could not make arrangement for money within next 15 months, he would refund the amount of Rs.60,000/- to the respondent/plaintiff. The plaintiff prayed for a decree for specific performance of contract and in the alternative prayed for refund of advance of Rs.60,000/- with interest of Rs.6,300/- thereon and also the amount of Rs.3,700/- towards articles purchased on credit by the defendant from the shop of the plaintiff.
3. The appellant/defendant while denying the claim in toto pleaded that he did not receive any amount from the respondent/plaintiff and also did not execute any Ekrarnama.
4. On the basis of the wholly unrebutted evidence led by the plaintiff, the learned trial Judge recorded a finding that the execution of the Ekrarnama by the defendant on 3.9.2002 and receipt of Rs.60,000/- from the plaintiff by the defendant, as also purchase of articles worth Rs.3,700/- on credit by the defendant from the plaintiff was proved. However, on the basis of the clear endorsement in the agreement dated 3.9.2002 that if the defendant could not arrange for money within 15 months, he would refund the amount of Rs.60,000/- to the plaintiff, the lower Court came to the conclusion that the transaction between the parties was a loan transaction and on this ground refused to grant specific performance of the contract while granting a decree in favour of the plaintiff for refund of consideration of Rs.60,000/- with interest Rs.6,300/- and the amount of Rs.3,700/- towards cost of articles purchased by the defendant on credit.
5. The respondent/plaintiff did not prefer any appeal against the judgment and decree passed by the Court below.
6. The only ground urged by the learned counsel for the appellant/defendant in this appeal is that once the Court came to the conclusion that the defendant had not agreed to sell the suit house to the plaintiff for a consideration of Rs.70,000/- on 3.9.2002 and the transaction between the parties was a loan transaction, it had no jurisdiction to order refund of Rs.70,000/- to the plaintiff from the defendant. On the other hand, the learned counsel for the respondent/plaintiff argued in support of the impugned judgment and decree while placing reliance on Suresh Chandra vs. Satya Narayan wherein under similar circumstances refund of advance paid by the plaintiff to the defendant was held to be justified.
7. Having heard the rival contentions, I am of the considered opinion that this appeal has no merit and is liable to be dismissed. The evidence led by the respondent/plaintiff regarding execution of the agreement dated 3.9.2002 by the defendant and receipt of an amount of Rs.60,000/- as also purchase of articles worth 3,700/- on credit was wholly unrebutted since the witnesses were not cross-examined by the defendant. The execution of the Ekrarnama Ex.P.1 by the defendant and the receipt of Rs.60,000/- as also goods worth Rs.3,700/- on credit by the defendant was thus fully established. The only fact which weighed heavily with the lower Court in refusing to grant specific performa
