Pradeep Sharma vs Radheshyam Bansal
2023 Latest Caselaw 651 Chatt

                                                                        Page 1 of 15

                                                                                AFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR

                        Judgment Reserved on : 10.01.2023

                        Judgment Delivered on : 01.02.2023

                                 FA No. 147 of 2018

         Pradeep Sharma S/o Shri Jawahar Prasad Sharma Aged About 47
         Years R/o 762, Sundar Nagar, Raipur, Tehsil And District Raipur,
         Chhattisgarh (As Mentioned In The Plaint) Correct Address Of The
         Appellant- Pradeep Sharma A/o 47 Years, S/o Shri Jawaharlal Sharma,
         R/o H.No.759, Sundar Nagar, P.S. D.D.Nagar, Raipur, Tehsil and
         District Raipur, Chhattisgarh.                       ---- Appellant

                                       Versus

         Radheshyam Bansal S/o Late Shri Kalyan Prasad Aged About 50 Years
         R/o Ashok Vihar Colony, In Front of Mandi Gate, Pandri, Raipur, Tehsil
         And District Raipur, Chhattisgarh (Plaintiff), District : Raipur,
         Chhattisgarh                                        --- Respondent

For Appellant : Mr. B. P. Sharma, along with Mr. Nitesh Jain, Advocate.

     For Respondent          : Mr. H. B. Agrawal, Sr. Advocate with Mr. Ajay
                               Kumar      Barik and Ms. Swati Agrawal, Advocate.


                 Hon'ble Shri Justice Goutam Bhaduri, Judge &
                Hon'ble Shri Justice N.K. Chandravanshi, Judge

                                  C A V Judgment

Per Goutam Bhaduri, J

1)       This appeal is against the judgment and decree dated 18.01.2018

passed by the learned First Additional District Judge, Raipur, in Civil Suit

No.36-A/2010 whereby the suit for specific performance was decreed in

favour of the respondent plaintiff.

2) The brief facts as per the plaint averments are that plaintiff Radheshyam

Bansal filed a civil suit for specific performance and permanent

injunction stating that he has entered into agreement for purchase of

land bearing Kh.No.212/58 of 10,000 square feet. The plaintiff also

prayed for a direction that the suit property should not be sold to any

third party. The respondent/plaintiff further averred that appellant

defendant Pradeep Sharma had purchased the suit land of Kh.No.212

total admeasuring 20,000 sqft., by registered sale deed dated

11.05.2005 from one Gurukul Shikshan Prasar Parishad. Thereafter,

out of the purchased land, 10,000 sqft of land was agreed to be sold in

favour of plaintiff @ Rs.511/- per sqft and on different dates,

Rs.5,01,000/- was received as earnest money. It was further stated

that since another suit was filed by one Lata Dubey against the

appellant/defendant for the subject land which was pending,

consequently the sale deed could not be registered and when defendant

tried to sell out the land in favour of third party, a notice was served to

the defendant to execute the sale deed in favour of the plaintiff. But even

then defendant did not adhere to the demand of such notice.

Consequently the suit was filed for specific performance of sale deed.

3) The appellant defendant filed the reply stating that he has not entered

into any agreement of sale with Radheshyam Bansal for sale of 10,000

sqft and the agreement of sale dated 11.04.2007 does not bear the

signature of the defendant and the document has been forged. The

defendant further stated that the plaintiff has no right to say that the suit

land in question was disputed one. It is also stated that the subject

matter of the land in question was not made clear by the plaintiff,

therefore, the suit filed by the plaintiff is not maintainable. The

defendant further stated that an oral deal was made to sell only 2000

sqft of land @ Rs.511/- per sqft and accordingly, an amount of

Rs.4,51,000/- was received but since the plaintiff did not pay the

remaining sum, as such, the sale deed was not executed. The defence

of limitation was also raised that the suit is barred by time and

compensation was also prayed.

4) The respondent has also filed a cross appeal which is also being

adjudicated. The learned Court of Additional District Judge framed 7

issues. Issue no.1 is that whether the defendant has entered the

agreement to sell the land of Kh.No.212/58 admeasuring 10,000 sqft

for Rs.51,10,000/- @ Rs.511/- per sqft ? The Court gave a finding that it

is proved. Issue no.2 is whether the defendant has received advance

amount of Rs.5,01,000/-. The Court answered that Rs.4,51,000/- was

proved to be received. Issue no.3 was that whether the said Agreement

dated 11.04.2007 was a forged document ? The Court held that it is not

proved. In sum and substance, with respect to Issue nos. 1, 2 & 3 the

Court held that that the defendant has agreed to sell 10000 sqft of land,

out of Khasra No.212/58 @ Rs.511/- per sqft for a total sale

consideration of Rs.51,10,000/- and out of that Rs.4,51,000/- was

received and that the agreement is not forged. With respect to defence

raised by the appellant that he struck a deal for sale of only 2000 sqft of

land, the Court further held that Agreement purports that 10,000 sqft of

land was agreed to be sold by the defendant and not 2000 sqft. and

accordingly decreed the suit for specific performance in favour of the

plaintiff. Hence, the defendant has preferred this appeal and cross-

objection has been preferred by the plaintiff/respondent against the

finding of payment of Rs.4,51,000/- claiming that a sale consideration of

Rs.5,01,000/- was paid.

5(i) Learned counsel for the appellant/defendant would submit that a

perusal of agreement Ex.P-2 would show that particulars in the map of

subject suit property has not been placed. He further submits that when

specific averments have been made that out of 20,000 sqft, only 10,000

sqft was agreed to be sold and the plaint averments shows that the

particulars have been shown in the plaint map but when the plaint map

is missing the suit for specific performance could not have been

decreed. He further submits that when this objection was raised in the

written statement then amendment was carried out in plaint to say that

the property is the same, which was purchased by the defendant from

Gurukul Shikshan Prasar Samiti. It is stated that the map was never

placed to show the identity of property.

5(ii) He further refers to the defence to say that the agreement of sale

was forged and since the amount of Rs.5,01,000/- was said to have

been paid, but the receipt (Ex. P-3) would show it is incorrect. He

submits that the defendant/appellant admitted that as per the oral

agreement, 2000 sqft of land was agreed to be sold, for which

Rs.4,51,000/- was paid. It is stated that the plaintiff failed to abide by

the promise even to purchase that part and was not ready and willing to

perform his part of contract. He refers to case laws reported in 2022

SCC OnLine SC 71 (Shenbagam Vs. K.K. Rathinavel) and 2022 SCC

OnLine SC 1541 (V.S. Ramkrishnan Versus P.M. Muhammed Ali)

and would submit that the trial Court has failed to frame an issue on

readiness and willingness even for execution of such 2000 sqft of land,

therefore, in absence of such issue, no evidence could have been led by

the parties.

5 (iii) Learned counsel further refers to the application filed under Order

41 Rule 27 of CPC before this Court and refers to the expert opinions to

submit that 3 expert opinions from two different experts have been

placed on record which go to show that the agreement is forged and

does not bear the signature of Pradeep Sharma and therefore by

admitting such document, it would lead to show that the plaintiff was

banking upon the forged agreement/signature. He refers to the

judgment rendered in Sanjay Kumar Singh Versus State of

Jharkhand (2022) 7 SCC 247. He would submit that the cross-

objection filed by the respondent also deserves to be dismissed for the

reason that Ex.P-3 itself would show that an amount of Rs.4,51,000/-

was paid on which the plaintiff relied whereas the said amount in total

has been said to be Rs.5 lakhs which is wrong. Consequently, the

appeal is liable to be allowed by setting aside the judgment and decree

of the learned First Additional District Judge, Raipur.

6(i) Per contra, Shri H.B. Agrawal, learned senior counsel appearing for

the respondent would submit that the finding of the learned Additional

District Judge is well merited about the existence of agreement. He

would further submit that the agreement itself contains that the sale

would be executed as per the convenience, therefore, time was not the

essence of contract. He further submits that the identification of property

in question is also established and the suit cannot be said to be barred

by limitation as agreement was dated 11.04.2007 whereas the suit was

filed on 11.06.2010. He placed reliance on a decision in Fatehji and

Company Versus L.M. Nagpal (2015) 8 SCC 390 to contend that the

suit was not barred by limitation. He would further submit that when the

seller did not execute the sale deed despite the notice, the suit was filed

and and identification of the property has been related to by the earlier

sale-deed by which the property was sold. He would further submit that

the map of earlier sale deed was admitted to be the identity of the plot by

the seller, therefore, the ambiguity about the property to be sold was not

there.

6 (ii) He would further submit that if the evidence of hand-writing expert

was adduced, which proved the execution of the agreement, no

ambiguity can be attached to such agreement. He further submitted that

the admission on the part of defendant would be the best evidence. He

placed reliance in Union of India Versus Ibrahim Uddin (2012) 8 SCC

148 to submit that on the basis of admission, a decree can be passed,

therefore, the order is well merited, which does not call for any

interference. He further submitted that in respect of cross-objection, a

reference application under Order 41 Rule 27 of CPC was filed to show

that the amount of Rs.50,000/- was paid by way of Cheque to the seller

which is evident from the copy of the statement of account of seller,

therefore, the finding of the learned court below about the payment of

sale consideration of Rs.4,51,000/- is erroneous and needs to be

corrected.

7. We have heard learned counsel for the parties. Perused the

evidence and documents on record. The plaintiff's suit was for purchase

of 10,000 sqft. of land bearing Khasra No.212/58. According to para 5 of

plaint averments, the subject suit property was agreed to be sold @

Rs.511/- per sqft for a total consideration of Rs.51,10,000/-. It is further

pleaded that particulars of the said suit property is shown in the map

attached to the plaint and is delineated in red. A perusal of the entire

plaint and the attached documents do not show that the map was

attached to the plaint. In reply to para 5, the seller stated that the

learned trial Court by its order dated 08.02.2011 has directed the plaintiff

to file the map. A perusal of the order dated 08.02.2011 passed by the

learned court below would show that on an objection taken to this effect

that the map is not attached, the plaintiff was directed to remove such

defect on an application filed as I.A.No.2. Thereafter, the case was

adjourned to 08.03.2011, 30.03.2011, 07.05.2011, 05.07.2011 and on

13.07.2011, an application was filed under Order 6 Rule 17, which was

allowed on 29.08.2011 and amendment thereafter was carried out to

show that the identity of the subject suit property admeasuring 10,000

sqft is the same, which was purchased by the defendant from Gurukul

Shikshan Prasar Samiti.

8. The defendant-seller in his written statement denied the said

averments that he ever entered into agreement for sale of 10,000 sqft of

land, which was purchased from Gurukul Shikshan Prasar Samiti. At the

same time, the defendant seller stated that 2000 sqft of land of the said

Khasra @ Rs.511/- sqft per square feet was orally agreed to be sold. It

was further stated that out of sale consideration for such 2000 sqft.,

Rs.4,51,000 was paid. The plaintiff has relied on document Ex.P-2,

which is styled as Ikrarnama Bikri Patra (Agreement of Sale Deed) to

show that 10,000 sqft of land was agreed to be sold @ Rs.511/- per

square feet and Rs.51000/- was received towards earnest money by

Cheque No.732568 dated 11.04.2007 and the rest of the amount would

be paid according to the convenience of the purchaser and the sale

deed would be registered. The signatures of seller both in agreement of

sale (Ex.P-2) and the subsequent receipt (Ex.P-3) have been denied.

9. According to the agreement, on first date of execution, an amount of

Rs.51,000/- was paid by Cheque No.732568 dated 11.4.2007. The said

payment is shown in the receipt of acknowledgment as the first entry of

receipt of Rs.51,000/- and the total amount of payments made by

Cheques as mentioned in acknowledgment (Ex.P-3) was shown to be of

Rs.5,01,000/-. Ex.P-3 which is dated 17.05.2007 bears the signatures

of two witnesses namely Rahul and Sudesh Ponkshe. On Ex. P.3, the

signatures of Pradeep, the seller, is also marked twice at portion 'A' to

'A' and signatures of two witnesses Rahul and Sudhesh are marked at

'B' to 'B' and 'C' to 'C'.

10. The same receipt has also been filed by the defendant and

marked as Ex.D-1. A comparison of Ex.P-3 and Ex.D-1 shows that in

Ex.D-1 just below the first Para, a line was written that "the receipt would

be valid from 11.04.2007 to 20.04.2007" which is visible. Later on,

20.04.2007 was cut-off in that line. Similarly, at the bottom, the date

11.04.2007 which is visible in Ex.D-1 is cut-off by two lines and instead,

fresh date 17.05.2007 is written and it bears signature of one witness

Rahul at 'A' to 'A'. The acknowledgment filed by plaintiff as Ex.P-3

reflects that after the first para, the entire line was completely cut-off. A

bare perusal of Ex.P-3 would further show that the manner in which the

entire sentence was cut-off just below the first para and at the bottom

the date 11.04.2007 was cut-off, which is not visible in Ex.P-3 instead a

fresh date 17.05.2007 was written. Therefore, considerably there exists

a difference in Ex.P-3 and Ex.D-1.

11. That apart, Ex.P-3 bears the signatures of two witnesses whereas

Ex.D-1 bears the signature of only one witness, which also differs with

each other. A perusal of Ex.P-3 on which the plaintiff heavily relied-on to

say that Rs.5,01,000/- was paid as earnest money which is written both

in words and figures shows that the Cheque No.809506 of SBI dated

09.05.2007 has been entered "twice" to make a total of Rs.5,01,000/-.

So if the particulars of a single Cheque and the amount thereof is

entered twice and is accordingly calculated, it creates a serious doubt as

the total amount actually comes to Rs.4,51,000/-, not Rs.5,01,000/-.

When the plaintiff was confronted with this fact in his evidence, he stated

that Pradeep Sharma, the seller had given the said receipts and he kept

it.

12. Ex.P-3 and Ex.D-1 both were accepted by the plaintiffs, one in

examination-in-chief and the other appears on being confronted in cross-

examination. Further perusal of the statement of the purchaser would

further show that he tried to explain the amount of payment of

Rs.5,01,000/-. He admitted the fact of deletion/cutting off certain written

part in Ex.P-3 as compared to Ex.D-1 and difference of number of

witnesses' signatures. The witness further stated that without reading

the contents of Ex.P-3, he has filed those receipts and after perusal of it,

no amendment however was carried out in pleading which purports

payment of Rs.5,01,000/-.

13. The respondent/plaintiff before this Court has filed application

under Order 41 Rule 27 of CPC in support of cross-objection. Along

with such application, the copy of the statement of accounts of one

Nivedita Bansal, wife of Radheshyam Bansal is placed to show that on

17.05.2007 Rs.50,000/- was paid to one Pradeep Sharma by Cheque

No.589085. Since prima facie reading of the said document appears to

be relevant to the issue and removes the clouds of doubts over the case

and further it appears to have a direct bearing to the main issue to

advance the cause of justice on merits, the application is allowed and

the said document is permitted to be taken on record and is marked as

Ex.P-15.

14. The principle to admit the additional document under Order 41

Rule 27 has been laid down by Hon'ble Supreme Court in a mere recent

case reported in (2022) 7 SCC 247 (Sanjay Kumar Singh Versus State

of Jharkhand ). Para 7 is relevant and quoted below :

"It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it pronounce judgment or for any other substantial cause of like nature".

15. Having admitted the document and further taking into consideration

along-with the statement of P.W.1 and the document i.e., receipts of

Acknowledgment (Ex.P-3), the entry of such Cheque No.589085 is not

shown in the receipts of Acknowledgment (Ex.P-3) on 17.05.2007

whereas Ex.P-3 reflects the entry of Vijaya Bank of 17.05.2007 about

receipt of Rs.50,000/- which pertains to Cheque No.7177704. Even for

the sake of consideration, if it is considered that Cheque number has

wrongly been shown in Ex.P-3, but a mere inference can be drawn that

only Rs.50,000/- was paid inasmuch as no-where it is stated by the

plaintiff or on application Order 41 Rule 27 that the purchaser was

holding a different account in Vijaya Bank. Even if such statement of

account is admitted to show the remittance, it does not match with the

number of Cheque and the over-all assessment of Ex.P-3 would show

that an amount of Rs.4,51,000/- was only paid. The plaintiff in plaint

averments has maintained the stand that the subject property to be

purchased was 10,000 sqft of land and earnest money of Rs.5,01,000/-

was paid. Ex.P-3 does not establish the same even by admission of

document filed by the plaintiff before this Court i.e., the statement of

accounts of Vijaya Bank of Nivedita Bansal. The Appellant/defendant on

the other hand has stated that he had agreed to sell 2000 sqft of land @

Rs.511/- per sqft for a total consideration of Rs.10,22,000/- and out of

that, Rs.4,51,000/- was paid on a different dates. The seller has further

stated that though he was requested to sell the land but the plaintiff was

not willing and subsequently on the basis of forged document Ex.P-2,

the suit was filed. So the payment of sale consideration to the tune of

Rs.5,01,000/- was not proved by the plaintiff.

16. A perusal of the agreement Ex.P-2 dated 11.04.2007 shows that

particular identity of property except an area of 10,000 sqft is not shown.

Before this Court, the respondents plaintiff submitted that the identity of

the property was admitted by defendant Pradeep Sharma in his cross-

examination at Para 9. We went through the statement of Para 9 of

cross examination of Pradeep Sharma. In order to identify the said

property, Ex.P-14 was relied upon. Ex.P-14 is a part of document

submitted to expert wherein the sale deed is attached to show that it is a

sale deed executed by Gurukul Shikshan Prasar Parishad in favour of

Pradeep Sharma. In such sale deed, the map is also attached. The

defendant/seller, in his written statement and further evidence, has

stated that he wanted to sell 2000 sqft of land to the plaintiff, which was

purchased by annexed document of Ex.P-14. Reading of cross-

examination in evidence and written statement shows that no-where it is

stated that the entire subject property which was purchased by the

annexed document of Ex. P-14 was agreed to be sold in its entirety.

17. The plaintiff has marked the document Ex.P-13 to be the report of

hand-writing expert to establish the signature of seller on agreement.

The hand-writing expert has not been examined. Likewise, the appellant

defendant has filed application under Order 41 Rule 27 CPC before this

Court placing 3 different expert opinion reports whereby he denied

signatures on agreement (Ex.P.2) dated 11.04.2007 (Ex.P-2) at portion

Q-1 to Q-3 and the application filed in hand-writing by the purchaser

plaintiff was said to be the same to show that the document is forged by

the plaintiff before the trial Court. Likewise, another application has

been filed in respect of an Expert Report to show that the signature of

Pradeep Sharma i.e., the seller on the agreement Ex.P-2 and signature

of same person on receipt Ex.P-3 are different. However, he admitted to

have accepted the signatures on Ex.P-3 while denying the signatures on

Ex.P-2 the agreement.

18. Applying the same procedure laid down on Order 41 rule 27 of

CPC in Sanjay Kumar Singh Vs. State of Jharkhand (2022) 7 SCC

247 (supra) the reports which are produced by the seller are also

accepted and accordingly are marked as Ex.D-2 and D-3. Consequently

the expert reports which have been exhibited by the seller cannot be

given a preference as different contradictory reports of 3 experts are on

record, as such, the circumstances would more govern the field to draw

the inference.

19. The very fact of amount of sale consideration on which the plaintiff

heavily relied is shrouded in suspicion since a difference has come to

fore about the part-payment made towards earnest money as Ex.P-3

though shows the total of receipts of Rs.5,01,000/- but actually it

appears that much of amount was not paid since double entry of a single

Cheque was made. Further evaluating such facts of Ex.P-1 which do

not show the particulars of the property, the plaintiff when was put to

cross-examination, no explanation has come on record except denial.

With respect to payment of sale consideration of Rs.5,01,000/- and on

comparison of Ex.P-3 and D-1 which are one and the same, the doubt

is not removed. The material changes which were existing in both of it

with regard to deletion/cutting off dates and name of the witnesses make

it suspicious.

20. Even on identity of property of defendant which reveals that it was

part of the property which was purchased by him vide Ex.P-14, it cannot

be accepted in absence of any admission of the defendant-appellant that

he agreed to sell the entire property of 10,000 sqft. Further cross-

examination of the plaintiff would show that earlier in case of similar

nature of allegations of forgery, the plaintiff was lodged behind the bars

and a criminal case is pending. The plaintiff (P.W.1) though stated that

he does not deal in sale and purchase transactions of property, but it

has not been supported by his own witness P.W.2. At para 6, it is stated

that the plaintiff is engaged in property dealings. Taking into

consideration those statements and evidence cumulatively the reliance

on execution of sale agreement Ex.P-2 cannot be given an absolute

credence as the agreement is shrouded in suspicion.

21. From the facts, it shows that the defendant agreed to sell 2000 sqft

but the plaintiff has failed to abide by his terms of agreement and was

not ready and willing to purchase such land. No issue has been framed

by the learned Additional District Judge on readiness and willingness.

The Supreme Court recently in Shenbagam Vs. K.K. Rathinavel 2022

SCC OnLine SC 71 (supra) has observed that failure of trial Court to

frame an issue relating to readiness and willingness of the plaintiff to

perform the contract is also critical in declining the remedy of specific

performance and as regards suit for specific performance, it is held that

the plaintiff must plead and prove his readiness and willingness to

perform his part of contract all through i.e., right from the date of

contract till the date of hearing of the suit. The Supreme Court further

held that the trial Court has failed to frame a specific issue on readiness

and willingness on the part of respondent to perform his obligation under

the contract and whether he is entitled to relief of specific performance

and in absence of any issue, it would be held that the trial Court viewed

the legal issue from an incorrect lens and the foundation of suit for

specific performance lies in ascertaining whether the plaintiff has come

to the court with clean hands to demonstrate that he is also willing to

perform the contract.

22. A reading of the entire evidence as discussed above, the agreement

of sale (Ex.P-2) itself has come under doubt and it has not been proved

to establish its authenticity and existence. Instead, the defendant seller

has stated that only part of land was agreed to be sold whereas the the

plaintiff has stated that he entered into agreement to purchase 10,000

sqft of land. Since the payment of sale consideration has also come

under the cloud it will have serious bearing which can be attached to the

conduct of plaintiff. In view of such facts, we are of the view that the

plaintiff is not entitled to get a decree for specific performance of

contract.

23. Since we are not inclined to issue the decree for specific

performance, at the same time, it may not lead to unjust enrichment to

the appellant. Unjust enrichment could be defined as a benefit obtained

from another, not intended as a gift and not legally justifiable, for which

the beneficiary must make restitution or recompense.

24. The Supreme Court in Indian Council for Enviro-legal Action

Versus Union of India (2011) 8 SCC 161 discussed different case laws.

"171. `Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

172. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA).

173. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain.

174. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus :

"....(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi- contract or restitution."

175. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:-

"It is no longer appropriate, however, to draw a distinction between law and equity. Principles

have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires."

176. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment".

25. Since the money was paid to the appellant and he admitted to have

received Rs.4,51,000/-, we are of the opinion that the respondent has

right of restitution and he cannot be deprived of the said amount. The

Supreme Court has observed that the restitution and unjust enrichment

have to be viewed in two stages i.e., pre-suit and post-suit. In the pre-

suit position the amount is not returned and also in the post-suit the

amount is still with the appellant. If we look into aspect from other angel

that the appellant has borrowed the money from a nationalized Bank,

what the bank would demand. Therefore, by applying the principles of

justice and equity and make it as an incentive for the appellant and to

implement in practical terms in concept of time, value and money, we

deem it appropriate to grant an interest @ 6% p.a., from the year 2007

with simple interest.

26. In the result, the appeal is allowed partly. The parties shall bear their

own costs. A decree be drawn accordingly.

                    Sd/-                                       Sd/-
              (Goutam Bhaduri)                          (N.K.Chandravanshi)
                   Judge                                      Judge


Rao