r 1 fts/ ^\xy .4 IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH F.A. N0. / r/ /2005 SINGLE BENCH APPELLANT ^Kamalkant Panday S/o Ramlochan ^LAINTIFF ^.Panday Aged About 31 Years, Occ. Farmer R/o Ward No. 6, Pathak Para Takhatpur, Tahsil-Takhatpur, District-Bilaspur, C.G. VERSUS \_.-./' RESPONDENTS ly Q Chandrabhushan Mahobia, aged about 41 ^EFFANDENTS / ^^ 2. ^ s years. Bhawani Shankar Mahobia, aged about 31 years. ,'-^\V ^-f^ Deendayal Mahobia, aged about 28 years ^/ .^. %^ ^y ^XV ^' /;€ w Respondent No. 1 to 3 are S/o Dwarika Prasad Mahobia , Occ. Farmer & Business men, R/o Ward No. 8, Near Bade Mandir, Takhatpur, Tahsil-Takhatpur, District Bilaspur, C.G. ,4. Shiv Prasad Sahu S/o Kriparam Sahu, aged about 50 years, Occ. Farmer, R/oVillage Lelapur, Tahsil- Lormi, Dstrict Bilaspur C.G. .5. State of Chhattisgarh ^ Civil suit No. 1 l^A/^. Through Collector Bilaspur C.G. ^' APPEAL U/S. 96 OF THE CODE OF CIVIL PROCEDURE HIGH COURT OF GHHATTISGARH AT BILASPUR Sinate Bench: Hon'bte Shri Juatice Prashant Kumar Mishra First Appeal No. 1SC of 2005 Kamalkant Pamtey Versus Chandrabhuslian Nlihoblii and (rthere •-."^:. '^ JUDGMENT Poskfor ^7-09^010. Sd//- Prashant Kumar Mishra Judge 0&-QQ-2QW /'\ •^^^.^ '^^^^ HIGH COURT OF CHHAmSGARH AT BILASPURa Sinate Bench: Hon'bte Shri Justice Prashartl KumarNislrisfc F.A.No.186/ APPELLANT RESPONDENTS Versus Ksunatkant Pandey Chandratahushan Mahobiaancfciottwrs* Shri R.K. Jgin, counsel for appellant. Shri PrafuU Bharsrt, counset iwthe resporoiente l^ l^c^ ^ Shri Sameer Behar, Paneiywyerforthe Startefr^po^^ None for respondenf No.4. APPEAL UNDER SECTION 98 OF THE CODE OF CIVU- PROCEDUfffi JUDGMENT tl2-..09.»10) aljtin!tejSe^»T|96 of C.P.G., ':*:.h^'!'<f"R'^<?fc?^^?:^»^y>'^;i'y^:Y.^'-:';'^::;i;-^-'^;;i7":''?'--'^---'^.^'-^;^^ '^-:^^^^a^-^^?s^^^^;3^?-^:^^ :. .:.-.;;/;;-^ the plainttffwhose suit for specific perfpmreinqe^^oo^^ dismissed by the trial Court. (2) The ptain^ pre^T^ thej^ m ws®entered wtth defendants No. 1 to3 on 2^06-2001 <or?|»«|Ghai|M<rf 3.41 acresoftond. Out of totaljigr^epriertim^ said defiendants were pald l^, 77,500^ and ttw s^e-deeift executed wtthin one year j.e. by 2^ W^ ^^ stits'sw^t^s^ balance amount of Rs.22,5pC^. Wl^ in spite of repeaj^ detendants dkl not execute the sale-deed, a (egal notwce viiiissent. However, in between, the said (tefendante sold^^^t defendant No.4 by r^gi^ei^ sale-cteed datedll^ (3) Thectefemtantew^jirooei^e)^^^ fited by them were not takwon reoonl beca^ ^ _.. _ ^ „ . " ' 1"'"1"1 -N' ctosure oftheir right to ffle wrftten statement •'^ m ^t :.:.7;ss.'. ^^w.^^ ,f"! ,.^^^ f X "I :^.. ^•':'^,, i^y-^ :%...l^ ^ (4) The trial Court dtemtesed the «m even atter f|^|n®^|tt^^^^^^ exscutton of the agreement has been proved. Accordii^ to ^e trig|! <3ourt tt has not been stated In the agreemenk as to by whal mpde the amount was paid and that the plaintiff ha®not been abte to provej^iyiT^rt of Rs.77,500/-. (5) tn the agreement dated 29-06-2CX)1 (Ex.P/3) ft has bew s^edtwt the defendante No. 1 to 3 have already receiyed RB.TT^X)^. Th(?^^^f^ regardingpayment of Rs.77,50(y- has been mentioned in morettii^c^ paragraph of the agreement. The trial Court hs®found th^ agreement is proved. tn the tegat nottee dsrted 21-p8-20(X2 (Ex.P^S) ft was mentloned that Rs.77^00/- has been paidto^d^Mtei^ Np.1^^^^^ 3. In their reply to the tegal nottee the defendante have not denied the execution of the agreement, though receipt of the amount has been denied. During the cross examination of PW/1 KBmalkanA Pandey a question was posed about the souroe of oMaining Rs.H,SOO/-^^ payment to the defendants No. 1 to 3 however the triat Court €idnc* attow the defendante to put the said quesUon because their right to fite wntten stetement has been ctosed. PW/2 Ramendra Kumar Paithak is a witn^s to the agreement Ex.P/3. He has stated that ttie amoynt pf R8,77,SOO^- was paid by the plaintiff to the defendarts in his presence and in the presence of one Arvinct Pandey on 29-05-2001. In his cross-waminsAion he has again stated that the amount was paid in cash. (6) Thus, in view ofthe ui^controverted pteadin^ aitd the^d^rrier*^ witnesses, the fincBng recorded by the tri^ Court ttwt <ht ^ 3»tedto prove payment d! Rs.77,5<xy- to the defenlgnte, tei>eowree, tt .-^2^ "i'wi^ ;.,^,^;:^,,. :'^ / is hdd that the plair^ff had paid Rs.77,500/- on ttw <Ne' the agreement. (7) The tnal Court has recoreted a findirig that tlv? ^ah^ ^ proved his readiness and wiUir^ness toperfwm hte pat ofthe contract. The trial Court has ateo held that the plairrtiff has not;^r|yeKt fer canceltation of the sate^leed Ex.P/4 executed by the ctetendai^1to;^t to 3 in favow of defendant No.4, therefore, the suit is not maintainable. (8) Regarding the reacfiness and wlllngness the plainttff tesjitea^ para 10 of the written statement that he was alwaysjre^id^and w^ is stilt ready and wltting to perform his part of the contradt by rmWng payment of Rs.22^00/-tothe<tefendantss^to^^t^ registration. tn the absence of any written s^ement by j^e d9fem|i^ this ptea has remain un-controvertect. (n hisdeposftion he hass^ated that the defendwits have always avoided to executethe sale-deed, howwer he has not statect as to what effort has been made by him and on which date or before whom he reqyested the defendants to rec^ye the balance amount and execute the sale-<leed. More over even aftsr the ^(|wgf <rf wg®not serrt immediately but was sert after a^^ the ftnding recorcted by the trial Court thsA the pfe|n8ff (i»|8||!|^tfrove his readiness and wilBngness to perfpnn hte part of the contr|i^Jsttoorne out from the record and is not perverse. (9) Uncter Sectkm 22 of the Specifte Rettef Act the Court hasfie power to grant relief for refund of eamest money. In thematter of SmlE.ii^wmid /^arrf (flea<9 by LRs. Ife. Smt Kamaf Rafrf ^teB<^ MA^ Ji^iSlg^ to ^^^., tfe." • ^ 'm^ .^ }'•/ /> @ AIR 1993 SC 1742 the Horfbte Supreme Court ha®held thaft wWte refusing a decree for specifte performance, refund pf earr^ money c»n be granted, when the defendant did not suffer any tosa. tn the present case the agreement belween the parties was for sate of the su| leu^^ Rs.1 ,QO,QQQt- whereas the defendants has sotd the siMl tetid tojlefewlaiit No.4 for Rs.1,29,000/-. Thus, the defendants have not suffered ai'i^^o@<|. (10) (n the fa^s and circumstances of the case, wNle Gpnfirmhig ^ judgment and decree pa®sed by the trial Court re(Us|nst;j^)ec|Rc performance of ttw contract, instead, a decree for refund of the eame^ money of Rs.77,500/- is granted In fevour of the japRellant, Consequentty, this a^eal partty succeeds and ft »direc^thgli^ respondents No. 1 to 3 shall retum the eamest money of Rs.77,SpO/- to the appeHant/plaintiff wtthin a penofll of two montte from the date of this ^idgment. (11) There shalt be no order as to oosts. (12) A decree be drawn-up accordingly. Sd//- Prashant Kumar Mishra Judge