^. c^' ^^ K&*§8«eii IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. ^ v /2008 Agpellants ^--Balbir Singh aged about 67 year, Defendants / S/o Late Amar Singh, R/o AIG 57, ...•• \^u <-..-''\...v ^5>:'v- n^^^- y^y ^.•-^y' ^^ Maharana Pratap Nagar, Near Niharika Talkies, Behind Petrol Pump, Korba Versus -<•;• ^•'' Respondents Bariyam Singh, aged about 63 year Plaintiffs ^ S/o late Ishwar Singh, R/o Power House Road, Korba FIRST APPEAL UNDER SECTION 96 OF CODE OF CIVIL PROCEDURB HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Prashant Kumar Mishra First Appeal No.112 of 2008 Balbir Singh versus Bariyam Singh JUDGMENT Postfor 9-8-2010 Prashani Kumar Mishra Judge •:.^" ..-^-A^i""».: Jj 1 / '^1-^-^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra First Appeal No.112 of 2008 Appellant Respondent versus Balbir Singh Bariyam Singh Present: Shri Parag Kotecha, counsel forthe appellant. Shri Arun Kumar Agrawal with Shri Viprasen Agrawal, counsel for the respondent. First Appeal under Section 96 of the Code of Civil Procedure JUDGMENT (Delivered on (>9'rtkAugust, 2010) In this first appeal under Section 96 of the Code of Civil Procedure, 1908, the defendant has called in question the legality and validity of the judgment and decree dated 28-4-2008 passed by the trial Court allowing the plaintiffs suit for recovery of Rs.62,100/- as against the plaintiffs claim for Rs.86,466/-. The suit was for refund of the advance paid by the plaintiff to the defendant at the time of entering into an agreement to purchase 1 acre land. 2. The admitted facts, as reftected in the judgment passed by the trial Court, are that the parties to the suit entered into an agreement on 29-4-1998 for purchase of 1 acre land. The plaintiff paid amount of Rs.25,000/- and thereafter additional amount of Rs.33,500/- was paid. The defendant also purchased one battery valued at Rs.3,600/- on 7- 12-1998 from the plaintiffs shop, which was also adjusted towards the advance and thus admittedly the plaintiff had paid Rs.62,100/- to the defendant. 3. According to the plaintiff, the defendant agreed to execute the sale-deed within six months from 29-4-1998, however, when in spite of receiving the amount of Rs.62,100/- as also amount of Rs.10,000/- on 10-10-1998, Rs.5,000/- on 23-10-1998, Rs.2,500/- on 7-12-1998, Rs.5,000/- on 30-1-1999, Rs.1,000/- on 28-2-1999, Rs.500/- on 18-10- 1999 and Rs.500/- on 2-1-2000, the defendant did not execute the sale-deed, a tegal notice dated 21-2-2000 was served for refund of the advance. The plaintiff personally contacted the defendant on 12-4- 2003 and another legal notice was sent on 19-4-2003, which was replied by the defendant on 5-5-2003 and refused to execute the sale- deed and refund the advance. 4. The defendant's case is that the plaintiff had paid Rs.62,100/- and not Rs.86,466/-, however, the plaintiff did not take steps to get the sale-deed executed. When the defendant requested the plaintiff to pay the balance amount and get the sale-deedexecuted, he demonstrated his inability on personal grounds on which one month time was granted on 7-12-1998, however, upon failure of the plaintiff, the agreement stood cancelled. It was also stated that the plaintiff destroyed the agreement by tearing it, but, later on, took the pieces of papers with him on which a report was lodged against the plaintiff and thus no transaction was entered between the parties after 18-10-1999. It was also stated that the suit is barred by limitation. ^y°a tf 1&— S •Vss-^ il>* K 8aa»- '<s .9' 5. The trial Court has found that since the defendant admits receiving Rs.62,100/- from the plaintiff and that since time was not the essence of the contract, the plaintiffs suit is not barred by limitation and deserves to be decreed for the agreed transaction to the extent of Rs.62,100/-. 6 . In course of trial, the defendant's objection regarding the suit being barred by limitation was rejected on 24-3-2004 while dealing with defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. In the said order, the trial Court had found that in response to the legal notice dated 19-4-2003, the defendant sent his reply on 5-5-2003 (Ex. P-4) and since it is by this reply the defendant for the first time took the stand that the agreement stood cancelled and he is not liable to refund the amount and the suit, having been filed on 19-12-2003, is not barred by limitation. 7. Learned counsel for the appellanVdefendant has argued that since the suit is barred by limitation, no decree can be granted in spite of defendant's admission regarding receiving Rs.62,100/- from the plaintiff. He submits that the triat Court committed an error of law by holding that time was not the essence of the contract. He would also urge that the suit should have been filed within three years from the first notice dated 21-2-2000. 8. Per contra, learned counsel for the respondenVplaintiff has argued that in a suit filed by the prospective purchaser for refund of the advance paid to the prospective vendor at the time of entering into an 'agreement to purchase, the amount of advance paid to the prospective 1 1 ""18 B vendor cannot be forfeited unless there is specific term in the agreement. By filing the cross-objection, learned counsel for the respondent/plaintiff submitted that the entire suit should have been decreed. 9. In the agreement (Ex.P-1), it is mentioned that the defendant agreed to sell 1 acre land for Rs.1 Lakh and has received Rs.25,000/- on 29-4-1998. It is further stated in the agreement that he will receive the balance amount within seven months and shall execute the sale- deed in the month of May, 1998. In the reverse side of the Ex. P-1 entries regarding payments made to the defendant have been made. Ex.P-2 is the legal notice dated 19-4-2003 and Ex.P-4 is the reply sent by the defendant's lawyer to the plaintiff on 5-5-2003 inter alia stating that the agreement already stood cancelled in the year 1999 and that the defendant is not liable to refund the amount. There is no other document in the record by which it can be ascertained that prior to 5-5- 2003, the defendant, at any point of time, refused to refund the amount. 10. Article 47 of the Limitation Act, 1963 provides a limitation period of three years for recovery of money paid upon an existing consideration which afterwards fails and the date of commencement of limitation is the date of the failure of the consideration/agreement. In Ram Lal Puri vs. Gokalnagar Sugar Mills Co. Ltd; AIR 1967 Delhi 91, it has been held that Article 47 of the Limitation Act applies to a suit to recover money paid towards price under incomplete sale. In the present case, the failure of the consideration was on 5-5-2003 when the defendant for the first time informed the plaintiff that he is not liable (^^ to refund the amount which he has received. The suit having been filed within three years from 5-5-2003 is, thus, within limitation. In paragraph 4 of the written statement, the defendant has accepted that he had received Rs.58,500/- till 29-9-1998 and that he also obtained delivery of one battery for his truck^valued at Rs.3,600/- from the plaintiffs shop on 7-12-1998. The suit has been decreed for this admitted amount of Rs.62,100/-. Thus, the trial Court has not committed any illegality by decreeing the suit for the above sum. 11. The cross-objection filed by the respondent/plaintiff is to the effect that the entire suit should have been decreed, however, on perusal of the record and on a reading of the evidence, it is found that the finding recorded by the trial Court that the plaintiff has succeeded in proving payment of Rs.62,100/- and not more has been arrived at by carefulappreciation of the evidence. The trial Court has observed that the burden to prove that the entire suit amount was paid to the defendant was on the plaintiff. Referring to the affidavits filed by the plaintiff, it has been observed that they are identiGal. On the other hand, the witnesses of the defendant, namely, Balbir Singh (DW-1) (the defendant himself), Jeet Singh (DW-2), Jitendra Singh (DW-3) and Shyam Singh (DW-4) have stated that the disputed amount (over and above the amount of Rs.62,100/-) has not been paid by the plaintiff to the defendant. 12. In the absence of any clinching evidence in the nature of any writing or receipt written by the defendant to admit that he has received any amount more than Rs.62,100/-, the finding recorded by the trial Court that the plaintiff is entitled to recover only Rs.62,100/- is not ^^ssss, Gopal perverse. The cross-objection filed by the respondent/plaintiff has no substance. 13. In view of the above, the first appeal as well as the cross- objection are dismissed. Parties to bear their own costs. ____—- ,/- prss'aani KumarMishra Judge