Munna Lal Sinha vs Sugreev Ram Sinha And Anr
2022 Latest Caselaw 4443 Chatt

                                                                                                 NAFR
                     HIGH COURT OF CHHATTISGARH, BILASPUR

                                   First Appeal No.154 of 2012

                 Munna Lal Sinha, S/o Late Sonsay Sinha, aged about 62 years,
                 R/o Village Mongragahan, Tahsil and District Kanker,
                 Chhattisgarh
                                                                                        --- Appellant
                                                   versus
          1.     Sugreev Ram Sinha, S/o Shri Kachheriya Sinha, aged about 55
                 years, R/o Village Kariha, Tahsil Charama, District North Bastar
                 Kanker, Chhattisgarh
          2.     State of Chhattisgarh, through Collector, North Bastar Kanker,
                 Chhattisgarh
                                                                                   --- Respondents

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For Appellant : Shri Vidya Bhushan, Advocate on behalf of Shri B.P. Singh, Advocate For Respondent No.1 : Shri Ravindra Sharma, Advocate For Respondent No.2/State : None

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Hon'ble Shri Justice Arvind Singh Chandel

Judgment on Board 13.7.2022

1. The instant appeal has been preferred by the plaintiff being

aggrieved by the judgment dated 25.7.2012 passed by the

Additional District Judge, North Bastar Kanker in Civil Suit No.1A of

2012, whereby the Trial Court has dismissed the suit for specific

performance of the agreement.

2. According to the pleadings of the Appellant/plaintiff, Respondent 1/

defendant 1 received an amount of Rs.1,46,000 as a loan on

3.5.2010 for his personal use and made an agreement (Ex.P1) to

refund the said amount of loan upto 31.5.2010. In the said

agreement, it has also been mentioned that if the amount is not

refunded within the stipulated period mentioned in the agreement

then he will sell the land which is situated on the way of Chhapar

Bhumi Haradula and according to the Patwari record the said land

bears Khasra No.11/38 area 0.41 RA. Respondent 1/defendant 1

completely failed to refund the above loan amount and did not

execute the sale-deed in favour of the Appellant/plaintiff within the

stipulated period. The plaintiff contacted defendant 1 many times

for execution of the sale-deed as well as for getting the refund of

the given amount, but, defendant 1 failed to do so. The plaintiff

also sent legal notices twice, but, despite that defendant 1 did not

reply the notices and neither he refunded the loan amount nor did

he execute the sale-deed. Thus, the civil suit was filed by the

plaintiff.

3. Before the Trial Court, despite service of notice, defendant 1

remained absent and the Trial Court proceeded ex parte. After

recording of the evidence of the plaintiff, the Trial Court, vide the

impugned judgment dated 25.7.2012, dismissed the suit on the

ground that in the agreement to sell description of the land is not

mentioned and, therefore, the agreement is not executable. Hence,

this appeal.

4. Learned Counsel appearing for the Appellant/plaintiff submits that

both the Appellant/plaintiff and his witness in their statements under

Order 18 Rule 4 of the Code of Civil Procedure clearly mentioned

the description of the suit land, but, despite that, the Court below

dismissed the suit, which is contrary to the evidence available on

record. Alternatively, it is argued by Learned Counsel that if any

decree for specific performance of the agreement cannot be

granted then the loan amount of Rs.1,46,000 be ordered to be

refunded to him along with interest.

5. Learned Counsel appearing for Respondent 1/defendant 1 submits

that from perusal of the agreement (Ex.P1) it is clear that the

agreement is not executed for sell of any property. Rather, it is

executed as a security against the loan taken by defendant 1 from

the plaintiff. Therefore, specific performance of the agreement to

sell the land in question on the basis of the agreement is not

possible. It is further submitted that as in the plaint there is no

claim by the plaintiff for refund of the loan amount of Rs.1,46,000,

therefore, as contained in sub-section (2) of Section 22 of the

Specific Relief Act, the relief of refund of the loan amount cannot be

granted to the plaintiff.

6. I have heard Learned Counsel appearing for the parties and

perused the record of the Trial Court including the evidence

adduced by the plaintiff with due care.

7. From perusal of the agreement (Ex.P1), it is established that Ex.P1

is not an agreement to sell any property. Rather, it is an agreement

which was executed between the plaintiff and defendant 1 as a

security for refund of the loan amount of Rs.1,46,000. Therefore, in

my considered view, on the basis of the agreement (Ex.P1), a

decree for specific performance of the agreement to sell the suit

property cannot be granted.

8. With regard to refund of the loan amount of Rs.1,46,000, though

this relief has not been claimed in the plaint, in the light of a

judgment of a Division Bench of this Court in Shankarlal Bijreja v.

Ashok B. Ahuja, 2011 (1) CGLJ 498, in which this Court has

observed that in appropriate cases where specific performance is

refused the Court may direct refund of amount to the plaintiff even

though he has not specifically asked for it in the plaint, the relief of

refund of the loan amount can be granted to the plaintiff.

9. Resultantly, the instant appeal is partly allowed. The impugned

judgment dated 25.7.2012 is set aside. The loan amount of

Rs.1,46,000 be refunded to the Appellant/plaintiff along with simple

interest @ 6% per annum from the date of filing of the civil suit

before the Court below till final payment.

10. A decree be drawn up accordingly.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal