Chattisgarh High Court
Bhushan Lal Kashyap vs Tahlu Ram Dhruvanshi on 14 June, 2022
Page 1 of 8
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 117 of 2014
Reserved for judgment on : 05.04.2022
Delivered on : 14 /06/2022
Bhushan Lal Kashyap, aged about 50 years, S/o Late Kundan
Lal Kurmi, R/o Village Khamharia, Tahsil Takhatpur, Civil and
Revenue Distt.- Bilaspur (C.G.).
---- Appellant
Versus
Tahlu Ram Dhruvanshi, aged about 70 years, S/o Late Murari
Lal, Caste- Dhuri, R/o Village Bhindarwani, Tahsil- Bhakhara,
Civil and Revenue District- Durg (C.G.).
---- Respondent
For Appellant : Mr. Ravindra Agrawal, Advocate.
For Respondent : Mr. B. P. Gupta, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1. The instant First Appeal has been filed by the
appellant/defendant under Section 96 of the Code of Civil
Procedure, 1908 challenging the judgment and decree dated
14.02.2014, passed by learned 4th Additional Judge to the Court
of First Additional District Judge, Bilaspur (C.G.) in Civil Suit No.
13-B/2013 (Tahlu Ram Vs. Bhushan Lal Kashyap) whereby the
suit has been decreed by the trial Court in favour of the
respondent/ plaintiff directed the appellant/defendant to pay Rs.
4,00,000/- along with interest @ 6% per annum from the date of
filing of suit i.e. 28.01.2012 till its actual payment.
2. For the sake of convenience, parties would be referred to as per
their description shown in the plaint filed before the trial Court.
3. The brief facts, as reflected from record, are that respondent/
plaintiff has preferred a Civil Suit against the appellant/defendant
before learned 4th Additional Judge to the Court of First Additional
District Judge, Bilaspur for recovery of Rs.4,00,000/-, which was
paid by him as advance amount towards part performance of the
contract dated 14.10.2010 and 1.11.2010.
4. The facts of case, as reflected from the plaint, are that suit-land
bearing Khasra Nos. 5, 6 and 13, total area 5.21 acres including
the house constructed over it, Well and irrigation Pump installed
in the land situated at Village Khamharia, P.H. No. 4, Tahsil
Takhatpur, Distt. Bilaspur were owned by the defendant. An
agreement has been executed between the defendant and
plaintiff on 14.10.2010 (annexure P/1) to sell the suit property @
Rs.2,80,000/- per acre and the total consideration was of
Rs.14,58,800/- as advance and an amount of Rs.1,50,000/- was
paid to the defendant on 14.10.2010 and amount of
Rs.2,50,000/- was paid to the defendant on 01.11.2010 by
executing another agreement (Ex.P-2) out of the total
consideration of the suit property. Thus, total an amount of Rs.
4,00,000/- has been paid to the defendant as an advance. As
per aforesaid agreements, after receiving the remaining amount
of Rs. 10,58,800/-, the sale deed has to be executed up to
15.01.2011 but the defendant has failed to perform his part of
contract despite several efforts made by the plaintiff. It has also
been contended that defendant has not prepared necessary
documents i.e. B/1 Khasra panchshala & other relevant
documents, which are required to be present at the time of
execution of registration of the sale deed, therefore, the
performance of the contract could not be done, though the
plaintiff was ready and willing to perform his part of contract.
5. Since, it was apprehension in the mind of the plaintiff that the
defendant may not perform his part of contract therefore, he
requested him to return the amount of Rs. 4,00,000/- but he
refused to do the same, therefore, legal notice has been sent to
the defendant for returning the said amount alongwith interest,
which has also not been given any weightage by the defendant.
In-action of the defendant in returning the amount has
necessitated the plaintiff to file the suit for recovery of Rs.
4,00,000/- along-with interest as per the bank rate applicable at
the relevant time
6. The defendant has filed his written statement admitting the fact
of execution of the agreement to sell and also with regard to
receipt of the amount but denied the other facts and would
submit that defendant was ready and willing to perform his part
of contract whereas the plaintiff deliberately did not perform his
part of contract. It has also been stated that the plaintiff has sent
legal notice to him on 22.12.2011 and reply to the same was also
filed on 23.12.2011 narrating factual aspects of the matter,
despite that the plaintiff did not perform his part of contract and
prayed for dismissal of the suit.
7. Learned trial Court, on pleadings of the parties, has framed as
many as six issues. The issue No. 5(a) which is just & relevant
for deciding the appeal reads as under:-
"5(a) Whether the plaintiff is entitled to get an
advance amount of agreement i.e. Rs.
4,00,000/- from the defendant ?
8. Plaintiff to substantiate his case has examined himself as PW1
and exhibited documents agreement dated 14.10.2010 (Ex.P-1),
another agreement dated 01.11.2010 (Ex.P-2), postal receipt
sent to defendant (Ex.P-3), acknowledgment (Ex.P-4), copy of
notice dated 11.01.2012 (Ex.P-5), Paper publication in Dainik
Bhaskar Daily News-Paper dated 13.01.2012 (Ex.P-6) whereas
the defendant to substantiate his case has examined himself as
DW-1 and another witness Basant Mahra as DW-2 and placed
one document i.e. reply to the notice sent by plaintiff as Ex.D-1.
9. The plaintiff, in his examination-in-chief has reitreated the
averments made in the plain. The said witness was cross-
examined by the defendant and in the said cross-examination
the factum of receipt of the amount of Rs. 4,00,000/- as an
advance was not rebutted.
10. The defendant has admitted the fact about receipt of the
money but he has stated that since the sale deed was not
executed within the stipulated time in-spite of the fact that he has
made sincere efforts to get the sale deed executed, as such, he
is not entitled to receive the aforesaid amount of Rs.4,00,000/-
as the plaintiff himself has failed to perform his part of contract.
The said witness was cross-examined by the plaintiff, in which,
he has admitted that he has received an amount of Rs.
1,50,000/- on 14.10.2010 and another amount of Rs.2,50,000/-
has received on 1.11.2010. Thus, he has received total amount
of Rs. 4,00,000/- as an advance. He has also admitted that as
per agreement to sell, the entire sale consideration has been
paid up to 15.01.2011 thereafter agreement has to be executed.
11.The learned trial Court, after appreciating the entire evidence
and material available on record, has decided the issue No. 5(a)
in favour of the plaintiff holding that he is entitled to receive an
amount of Rs. 4,00,000/- from the defendant. The learned trial
Court, while appreciating evidence and material on record has
recorded a finding that though the plaintiff has requested to
return the advance money of agreement on 22.11.2021 by
sending him legal notice but neither the same has been replied
nor money has been given, thereafter, he has instituted a suit on
28.01.2012 within limitation. The learned trial Court also
recorded an affirmative finding while deciding the issue No. 1
that whether the plaintiff is ready and willing to perform his part
of contract, as such, he is entitled to get Rs. 4,00,000/- which he
has paid to the defendant along with interest @ 6% per annum
from the date of filing of suit i.e. from 28.01.2012 till its actual
payment.
12. Being aggrieved and dissatisfied with the judgment &
decree of the trial Court, the defendant/appellant has preferred
the instant appeal challenging the same.
13. Learned counsel for the appellant/defendant would submit
the trial Court has erred in decreeing the suit of the plaintiff by
recording findings, which are perverse and contrary to the facts
& circumstances of the case. The learned trial Court has
recorded a perverse finding that the plaintiff was ready and
willing to perform his part of contract. It has been further
contended that prior to 15.01.2011, the plaintiff has not sent any
legal notice to defendant for registration of sale deed and the
plaintiff has not performed his part of contract even after knowing
the fact that the defendant is tried to sell the property to another
person, therefore, the conduct of the plaintiff clearly shows that
he was not ready and willing to perform his part of contract, as
such, the finding recorded by the trial Court to the effect that
plaintiff is ready and willing to perform his part of contract is
perverse and deserves to be set aside. He would further submit
that there was no agreement between the parties that if any
dispute arrived at between the parties with regard to execution of
sale deed, then earnest money could be refunded, therefore, the
finding recorded by the trial Court deserves to be set aside.
Hence, he would pray for setting aside the judgment of the
decree of the trial Court.
14. On the other hand, learned counsel for the respondent
would submit that the finding recorded by the trial Court is
neither perverse nor contrary to the record and the same does
not warrant any interfere by this Court and would pray for
dismissal of the appeal.
15. I have learned counsel for the parties and perused the
record with utmost satisfaction.
16. From the facts and evidence brought on record, it is quite
vivid that the plaintiff has admitted the fact that he has received
the amount of Rs. 1, 50,000/- on 14.10.2010 and Rs. 2,50,000/-
was paid on 01.11.2010 and even in the written Statement, the
defendant has admitted that aforesaid amount has been
received. Thus, it is not in dispute that the amount has been
received and there is no such clause in the agreement, which
provides that in case of any failure on the part of plaintiff to
perform his part of contract, the amount which has been given by
the plaintiff, as an advance, has to be forfeited. In absence of
any clause, in the agreement vide Ex. P/1 & P/2, it cannot be
said that the plaintiff has accrued the right to forfeit the said
amount of Rs. 4,00,000/- which has been received in advance.
Therefore, the finding recorded by the learned trial Court with
regard to issue No. 5(a) that the plaintiff is entitled to receive a
sum of Rs. 4,00,000/- is neither perverse nor contrary to
evidence material on record nor oppose to terms and conditions
enumerated in the agreement, therefore, this finding is justifiable
legal and does not warrant any interference by this Court.
17. The learned trial Court has also granted interest @ 6% on
the aforesaid amount from the date of filing of suit, till the actual
payment is made. The aforesaid decision on the part of the
interest, is also in accordance with Section 34 of the CPC. In
order to appreciate the aforesaid contention, this Court is
required to consider the scope and ambit of Section 34 of the
C.P.C. which gets attracted in the instant case.
"34. Interest.- (1) Where and in so far as a decree is for the
payment of money, the Court may, in the decree, order
interest at such rate as the Court deems reasonable to be
paid on the principal sum adjudged, from the date of the suit
to the date of the decree, in addition to any interest adjudged
on such principal sum for any period prior to the institution of
the suit, with further interest at such rate not exceeding six
per cent, per annum, as the Court deems reasonable on
such principal sum, from the date of the decree to the date of
payment, or to such earlier date as the Court thinks fit.
Provided that where the liability in relation to the sum so
adjudged had arisen out of a commercial transaction, the rate of
such further interest may exceed six per cent, per annum, but
shall not exceed the contractual rate of interest or where there is
no contractual rate, the rate at which moneys are lent or
advanced by nationalized banks in relation to commercial
transactions.
Explanation .- In this sub section, "nationalized banks" means a
corresponding new bank as defined in the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970.
Explanation I.- For the purposes of this section, a transaction is a
commercial transaction, if it is connected with the industry, trade
or business of the party incurring the liability.
(2) Where such a decree is silent with respect to the payment of
further interest on such principal sum from the date of the decree
to the date of payment or other earlier date, the Court shall be
deemed to have refused such interest and a separate suit
therefor shall not lie"
18. Hon'ble the Supreme Court in Mahesh Chandra Bansal Vs.
Krishna Swaroop Singhal & others1, has held at paragraph 4
held as under:-
4. The submission is that regards interest pendent lite
the main part of sub-section (1) of Section 34 CPC
prescribes that interest has to be awarded at a
reasonable rate. We find merit in the aforesaid
contention of the learned counsel. The main part of
sub section (1) of Section 34 CPC laying down that
during the period the suit was pending in court
interest is to be awarded at a reasonable rate and for
the period subsequent to passing of the decree
interest is to be awarded @ 6% per annum and future
interest at a higher rate can be awarded if the proviso
is attracted. The only question is what would be the
reasonable rate of interest for the period the suit was
pending in the Court. Since the appellant, in his
plaint, has himself claimed interest @ 12% per
annum for the entire period including the period the
suit is pending, we are of the view that pendent lite
interest should be awarded @ 12% per annum".
19. Hon'ble the Supreme Court in C.K. Sasankan Vs. The
Dhanalakshmi Bank Ltd.2 at paragraph 8 has held as under:-
"8. The quantum and rate of interest which the appellant in
the present case is entitled to would be in accordance
1(1997) 10 SCC 681
2(2009) 11 SCC 60
with the provisions of Section 34 of the Code. According
to the provisions of Section 34 of the Code interest is to
be awarded at a reasonable rate and on the principal
amount. It is needless to point out that although the
amount of interest from the date of filing of the suit till
the date of the decree and thereafter till realisation is in
the discretion of the court as is confirmed by the use of
the word 'may' but such discretion has to be exercised
by the court properly, reasonably and on sound legal
principles and not arbitrarily and while doing so the
court is also to consider the parameter, scope and
ambit of Section 34 of Code."
20. Thus, considering the law laid down by the Apex Court in the
afore-cited cases and the provisions contained in Section 34 of
the CPC, it is quite clear that since it is a commercial transaction
and as per the provisions contained in Section 34 of the CPC,
interest on the aforesaid amount from the date of the suit to the
date of decree at a rate not exceeding twelve percent may be
awarded, whereas, the trial Court has granted interest @ 6% per
annum from the date of filing of suit, till its actual payment by
which also in conformity with the provisions contained in Section
34 of the CPC and also in view of the judgments cited by Hon'ble
the Supreme Court in the aforesaid cases, as such amount of
interest @ 6% pa also does not call for any interference.
21. As a fallout and consequence of the aforesaid discussion, the
first appeal, being devoid of substance, is liable to be and is
hereby dismissed.
22. No order as to costs.
Sd/-
(Narendra Kumar Vyas)
Judge
Amita
