AFR HIGH COURT OF CHHATTISGARH, BILASPUR F.A. No. 352 of 2018  Bajrang Sahu, S/o Shri Ramkhilawan Sahu, aged about 32 years, R/o Bahtarai Chowk, Near Police Station Sarkanda, Bilaspur, Tahsil and District Bilaspur (C.G.).

---- Appellant/

Defendant No.1 Versus

1. Dinesh Jaiswal, S/o Patelram Jaiswal, R/o Bahtarai Chowk, Near Police Station Sarkanda, Bilaspur, Tahsil and District Bilaspur (C.G.). ……… Plaintiff

2. State of Chhattisgarh, Through – Collector, Bilaspur, District Bilaspur (C.G.)

---- Respondent/ Defendant No.2 For Appellant : Mr. Sourabh Sharma and Mr.

Sourabh Gupta, Advocate.

For Respondent No.1 : Mr. Ratnesh Kumar Agrawal, Advocate General.

For Respondent No.2/State : Mr. Abhishek Singh, P.L.

Hon'ble Shri Justice Goutam Bhaduri &

Hon'ble Smt Justice Rajani Dubey Judgment on Board by Goutam Bhaduri, J

03 /07/2024

1. This appeal is filed by the defendant No.1/appellant herein against the judgment and decree dated 22.02.2018 passed by the VI Additional District Judge, Bilaspur (C.G.) in Civil Suit No. A/77/15, whereby the suit filed by the plaintiff/respondent No.1 herein for specific performance of contract though was dismissed, however, it was ordered that the plaintiff is entitled to receive the earnest money of Rs.10,39,000/- with interest @ 6% per annum from the defendant No.1/appellant herein.

2. The case of the plaintiff, in short, is that the plaintiff/respondent No.1 filed a suit on the ground that he was a tenant of 04 shops of appellant/defendant and has been a tenant of the suit shops in past, therefore, on 24.06.2009, defendant No.1 entered into a deal for sell of the suit shops with plaintiff. It was agreed to purchase two shops & earnest money of Rs.10,39,000/- was paid and the total sale consideration was of Rs.15,00,000/-. The plaintiff pleaded that in lieu of such agreement, the possession of the suit shops were handed over to him. Since there was a dispute going on between the family members of the seller, it was agreed by the defendant that only after the resolution of property dispute, sale-deed would be executed in favour of the plaintiff. However, the defendant did not execute the sale deed instead, a notice was served on 10.04.2015 to the plaintiff by the defendant to vacate the possession of four shops with the averments that the plaintiff is tenant of suit shops and possession of the two shops have been parted with third party and sub-tenancy is created without the consent of landlord. In respect of other two shops, the plaintiff averred that an agreement to sell has already been entered into and earnest money has been received but instead of execution of sale deed, the notice of termination of tenancy and vacating the shops was served, which eventually led to filing of civil suit by the respondent/plaintiff.

3. In order to substantiate the claim of the plaintiff, he examined himself along with two witnesses namely Raj Kumar Kashyap (PW/2) and Ramdin Jaiswal (PW/3). The defendant has also examined two witnesses to counter the suit of plaintiff. The learned Additional District Judge though dismissed the suit for specific performance of contract, however, ordered for return of earnest money with interest, therefore, this appeal by the defendant/seller.

4. Mr. Sourabh Sharma, learned counsel for the appellant/defendant would submit that the entire case of plaintiff was based on oral agreement and oral agreement has not been proved in accordance with law. He would further submit that source of the amount wherefrom the amount was paid and the mode has also not been proved. Learned counsel also submits that in order to prove the oral agreement, the evidence beyond reasonable doubt should be on record and the statement of plaintiff itself would show that it is contradictory. It is stated that the plaintiff admitted that he continued with the tenancy whereas at one time he stated that he had stopped the payment of rent, under these circumstances, the oral agreement was not proved. Learned counsel also submits t