JUDGMENT

It is against the decree granting return of advance amount in a suit for specific performance of the contract for sale, the plaintiff came up in appeal.

2. The defendant No.1 and 2 are brothers. An advance amount of Rs.4,00,000/- was received at the time of execution of Ext.A1 agreement. Another amount of Rs.5,00,000/- was received on 14/10/2011 through the brother of first defendant, who is the second defendant in the suit, which was duly endorsed in Ext.A1 agreement, since the first defendant was fully bed ridden at that time. The first and second defendants in turn joined in the written statement and disputed the third payment through the third defendant for an amount of Rs.6,00,000/- as on 30/11/2011 alleged by the plaintiff. It is the specific case of the plaintiff that at that time the first defendant was fully bed ridden and the second defendant was abroad and as such, payment was effected through the third defendant, a relative of first defendant. The person who received the third instalment, the third defendant did not mount on the box to give direct evidence, though there is an endorsement as that of him on the reverse side of Ext.A1 agreement regarding receipt of Rs.6,00,000/- as alleged by the plaintiff. The trial court granted a decree for return of the advance amount received by first and second defendants, which comes to Rs.9,00,000/- with interest.

3. It is submitted that there is no privity of contract between the plaintiff and the third defendant since the alleged transaction is in between the plaintiff and the first defendant and the second defendant, who acted on his behalf and hence, no decree can be granted as against the third defendant for recovery of the said amount of Rs.6,00,000/-. There is no satisfactory evidence to show that the third defendant was authorised to receive the said amount for and on behalf of the first defendant. Necessarily, no decree for the recovery of the said amount of Rs.6,00,000/- can be passed against the first or second defendant. But at the same time, the endorsement made by the third defendant on the reverse side of Ext.A1 agreement would separately constitute a concluded contract by its nature and receipt of Rs.6,00,000/- by the third defendant, if it is proved to be genuine, for which the plaintiff had given oral evidence besides production of the endorsement as part of Ext.A1 agreement. No contra evidence was adduced by the third defendant by mouting on the box. The signature as that of the third defendant affixed in the endorsement was also not properly challenged by giving direct evidence. 4. The contention that the photocopy given and notarised did not contain the endorsement as that of the third defendant and hence the endorsement made in Ext.A1 can only be a subsequent fabrication cannot be sustained in view of the fact that photocopy of Ext.A1 agreement was notarized on 7/4/2011 and the third instalment alleged to have been paid and endorsement made thereof is a subsequent one dated

30/11/2011.

5. At this juncture, the learned counsel for the third defendant submitted that it is due to lack of proper legal advice he could not mount on the box and to give direct evidence and pressed for an opportunity. Hence, while confirming the decree and judgment of the trial court as against defendant No.1 and 2 regarding return of the advance amount i.e. the first and second instalments, the issue of entitlement of third instalment, which comes to Rs.6,00,000/- from the third defendant is remanded back to the trial court for fresh consideration and disposal after giving the third defendant a chance to give direct evidence and additional evidence and the decree of the trial court will stand set aside to that extent. It is made clear that the decree as against the first and second defendants shall not be reopened as it has become final and conclusive. For the abovesaid purpose, the plaintiff and the third defendant shall appear before the trial court on 14/11/2022.

The app