ORAL JUDGMENT

1. The present appeal is filed under Section 96 of the Civil Procedure Code, 1908 (for short, hereafter referred to as `the Code’) challenging judgment and decree dated 11.8.2009 passed by the learned Principal Senior Civil Judge, Junagadh in Special Civil Suit No.105 of 1997 partly allowing the suit of the plaintiff whereby relief of specific performance and permanent injunction were rejected and refunded Rs.2,01,111/- @ 8%

p.a. interest from the date of suit till realization.

2. Heard learned advocate Mr. Ashish M. Dagli for the appellant. Though served, none appeared for the respondent. Perused the record.

3. The facts in brief of the case are as under:

* The appellant – original plaintiff had filed Special Civil Suit No.105 of 1997 before the learned Principal Senior Civil Judge, Junagadh for a relief of specific performance of contract and a relief of permanent injunction and alternatively prayed for refund of earnest money at the rate of

23% p.a..

* An agreement to sell was executed between the plaintiff and defendant on 8.9.1994. The case of the appellant – plaintiff is that defendant is the owner of an immovable property situated at Mangnath Street, Muni. Ward No.6, Block No.12, City Survey No.8, Ruka No.10/70-71, plot admeasuring 220 square yards. The sale consideration was agreed at Rs.3,11,111/-. Defendant accepted Rs.1,111/- towards Bana amount on 8.9.1994 and it was agreed that Rs.3,00,000/- to be paid to defendant within 6 months from 8.9.1994 and Rs.10,000/- was to be paid at the time of execution of registered sale deed.

* The defendant was to handover possession of his part, except the possession occupied by some tenants in the suit property. It was agreed between the plaintiff and defendant that the existing building was to be demolished and apartment was to be constructed over the land and on the 3rd floor, two flats of super built are of 1000 square feet were to be handed over to the defendant. Till the construction of flat is complete, defendant was to be allotted some other place for residence for a period of one year. As defendant refused to execute registered sale deed, plaintiff – appellant filed the suit.

4. The defendant appeared and filed Written Statement at Exh.10 and admitted the execution of the agreement to sell and contended that the transaction was a transaction of money lending. It is further contended that the plaintiff is in the business of construction activity and also engaged in the business of money laundering. The payment of money which is claimed to be considered was towards the payment of interest.

5. Issues were framed at Exh.13 which are reproduced hereunder:

“(a) Whether the Plaintiff proves that the Respondent has executed agreement for sale in favour of the Plaintiff for the house under ownership and occupation of the Respondent?

(b) Whether the Plaintiff proves that the Respondent has received only total Two Lakh One Hundred Eleven Rupees at various times mentioned in the Suit?

(c) Whether the Respondent proves that less amount of Court Fee stamp is afÏxed in this case?

(d) Whether the Respondent proves that this was only a money lending transaction?

(e) Whether the Respondent proves that the Suit is barred by delay and latches?

(f) Whether the Respondent proves that the Suit is barred by ‘non-

joinder of parties’?

(g) Whether the Plaintiff is entitled to the relief sought?

(h) What order and decree?

6. The plaintiff has examined himself at Exh.53 and also examined witness at Exh.67. Defendant has examined himself at Exh.87.

7. Being aggrieved and dissatisfied with the non-

granting of a relief of specific performance, the plaintiff – appellant is before this Court.

8. Learned advocate for the appellant submitted that an agreement to sell dated 8.9.1994 was executed between the plaintiff and defendant and as per the terms and conditions of the agreement to sell, the defendant was supposed to handover possession of the portion of the suit property occupied by the defendant. The agree