The main legal point established is that the court found the agreement of sale to be fictitious and granted the plaintiff a decree of Rs.40,000/- along with interest instead of Rs.1,00,000/- as passed by the trial Court.

1. This is defendants' first appeal filed under Section 96 of Code of Civil Procedure, 1908, against the judgment and decree dated 03.07.2007, passed by the District Judge, Dhamtari, in Civil Suit No. 6-A/2006.

2. Brief facts of the case are that, Plaintiff filed a suit for specific performance of contract against the defendants. According to plaintiff, he entered into an agreement of sale (Ex.P-1) with respect to the land bearing Khasra No.1048, area 0.35 dismal, Patwari Halka No. 16 situated at Baniyapara Ward, Dhamtari (C.G.) with the respondents for a sale consideration of Rs.1,50,000/- on 16.5.2003 and paid Rs.1,00,000/- as earnest money. As per the terms of the contract, the defendants have to execute the sale deed within a period of 18 months from the date of execution of agreement after receiving balance consideration at the time of registration. When he learnt, defendants are trying to sell the same to some other person, he raised his objection and issued notices, demanding execution of sale deed in terms of the contract but the defendants did not execute the sale deed in his favour, hence, he filed a suit for specific performance of the contract and in the alternative for refund of earnest money of Rs.1,00,000/- with interest.

3. By filing written statement, defendants denied execution of agreement of sale, receipt of earnest money of Rs.1,00,000/- and pleaded defendants No.1 & 2 had taken a loan of Rs.40,000/- in security thereof, the respondent No.1/ plaintiff obtained their signatures on blank papers and are dishonestly using the same as agreement of sale. It was further pleaded dispute arose when plaintiff demanded Rs.80,000/- in lieu of loan of Rs.40,000/- which in fact they have repaid.

4. The trial Court, dismissed the suit so far as specific performance of the contract holding: transaction as loan transaction but decreed the suit for refund of earnest money of Rs.1,00,000/- with interest. Hence, this appeal.

5. Shri R.S. Patel, learned counsel appearing for the appellants/defendants would submit: trial Court having found the transaction as loan transaction has erred in granting the decree of refund of earnest money of Rs.1,00,000/- with interest, inasmuch as, the defendants have never received Rs.1,00,000/- from the respondent No.1/plaintiff and a loan of only Rs.40,000/- was taken by them and same has been repaid which is also evident from the statement of defendants and their witnesses.

6. Per contra, Shri Malay Kumar Bhaduri, learned counsel appearing for respondent No. 1/plaintiff, supported the judgment and decree and submited that the trial court has rightly decreed the suit for refund of earnest money of Rs.1,00,000/- with interest, having found plaintiff had paid Rs.1,00,000/- to the defendants, which does not call for any interference.

7. I have heard the counsel appearing for the parties, perused the judgment and decree impugned including record of the trial court.

8. The core question, therefore, arises for determination of this Court is whether or not the trial Court was justified in granting decree of Rs.1,00,000/- with interest @ 9% per annum from the date of institution of suit till its recovery in the facts and circumstances of the case.

9. Plaintiff himself had filed a public notice (Ex.P-12) published by his Advocate in newspaper on 15.02.2004 which goes to show that appellants No.1 and 2 have mortgaged the suit land with him as a security of loan taken by them. The agreement of sale was alleged to be executed on 16.05.2003 i.e. much prior to issuance of public notice on 15.2.2004. In that public notice, the plaintiff also did not mention the amount of loan and/or execution of any agreement on 16.5.2003 by appellants. Public Notice (Ex.P-12) also goes to show, the loan was taken by appellants No. 1 & 2 and not by appellant No. 3. The appellants have also denied the thumb impression of appellant No.3 on Ex.P-1. The trial Court also held, thumb impression of appellant No.3 - Ansuiya Bai on Ex