Roopram Yadav vs Neetu Agrawal & Anr.
2022 Latest Caselaw 1214 MP

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          HIGH COURT OF MADHYA PRADESH AT JABALPUR

                 Single Bench : Hon'ble Smt. Justice Anjuli Palo

                                    F.A. No.478/1997

                                     Roopram Yadav
                                             Vs.
                            Ku. Neetu Agrawal & another
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Shri Rahul Choubey, counsel for the appellant.

None for the respondents.

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                                       JUDGMENT

(27/01/2022)

This first Appeal has been preferred by the appellant under

Section 96 of C.P.C., being aggrieved by the judgment and decree dated

12.08.1997 passed by the Fifth Additional District Judge, Bhopal in

Regular Civil Suit No. No.2-B/1990, whereby the defendants have been

directed to pay Rs.60,000/- to the plaintiffs along with interest at the

rate of 6% per annum with effect from 30.07.1988 till the date of

payment.

2. It is admitted fact that the appellant/defendant is the owner

of suit property an agricultural land bearing Khasra Nos.76/3, 76/2 and

77/1, which are situated at village Bairagarh, Chichali Patwari Halka

No.38, Tahsil Hujur, District Bhopal. The appellant/defendant and

plaintiffs have entered into an agreement on 30.07.1988 for sale of total

2.50 dismil agricultural land out of 2.85 acres of land bearing Khasra

No.76/2, i.e. 1.25 dismil to each of plaintiffs @ Rs.1,25,000/- per acre.

The appellant/defendant had received total amount of Rs.40,000/- i.e.

Rs.20,000/- from each of the respondents/plaintiffs as advance money.

3. The respondents/plaintiffs before the trial Court contended

that the appellant/defendant failed to comply with the terms and

conditions of the agreement and he further failed to get clearance

certificate as well as "no objection certficate" from the competent

authority of the Income Tax Department and had also failed to submit

return before the authority concerned.

4. On 18.02.1989, the respondents/plaintiffs had given a

notice for compliance of the agreement. However, thereafter the

appellant/defedant got published an advertisement in daily newspaper

"Nav Bharat" for sale of his agricultural land and in reply to the notice

sent by plaintiffs it was stated by the defendant/appellant that

agreement between the parties has already been executed on

30.07.1988. Thus, respondents/plaintiffs filed suit for recovery of

Rs.60,000/-.

5. The appellant/defendant denied all the averments made in

the plaint and alleged that the plaintiffs themselves have not complied

with terms and conditions of the agreement. Neither they were

interested to purchase the property nor they paid the remaining amount

to him. Appellant/defendent admitted execution of sale agreement as

also acceptance of advance towards sale consideration of Rs.40,000/-

but denied receiving of remaining Rs.20,000/- on 02.08.1988. He

alleged that as per the terms of the said agreement, each of the

respondents/plaintiffs are entitled to receive Rs.10,000/- after forfeiting

the rest amount. Therefore, appellant/defendant had prayed before the

trial Court to dismiss the suit against him. Appellant/defendant also

submitted that the required sanction from the competent authority has

been received by him, but the plaintiffs/respondents had failed to pay

the remaining amount. Thus, he is not bound to sale the property to the

plaintiffs, hence, the suit is liable to be dismissed.

6. On the basis of evidence adduced by the attorney holder of

the plaintiffs and the documents filed by them, the learned trial Court

came to the conclusion that appellant/defendant has failed to get NOC

from the Income Tax Department because the disputed transaction was

valued for more than Rs.2 lakhs and he has not filed the particulars

before the competent authority Urban Land (Ceiling), Bhopal.

7. After considering the testimony of the appellant/defendant,

reply and money receipt Exh.P/3, learned trial Court held that appellant

received Rs.60,000/- from the respondents/plaintiffs and he himself

failed to comply with the terms and conditions of the agreement, rather

he published an advertisement for sale of his agricultural land to

others. Hence, it was clear that he is not inclined to execute the sale

deed in favour of the respondents. Thus, the suit for payment of

Rs.60,000/- with interest at the rate of 6% per annum was decreed

against him.

8. Appellant/defendant challenged the above before this Court

on the grounds that the impugned judgment and decree passed by the

trial Court is bad in law and has been passed without appreciating the

evidence available on record in proper perspective. Trial Court erred in

disbeliving the evidence of appellant. It is further urged that the trial

Court misconstrued the Clause 6 of the sale agreement Exh.P/2 dated

30.07.1988 and the trial Court has not considered that it was mentioned

therein that from the joint efforts of both the parties, necessary

permission and sanction from the competent authority Urban Land

(Ceiling), Bhopal were to be obtained. The trial Court also

misconstrued the Provisions of Section 102 of the Indian Evidence Act

and shifted the burden of proof on appellant/defendent to prove that he

received Rs.20,000/- as advance amount from respondents as per

Exh.D/3.

9. Learned counsel for the appellant in support of his case has

placed reliance on the decision of Apex Court in case of Man Kaur

(Dead) by LRs vs. Hartar Singh Sangha (2010) 10 SCC 512, wherein

it has held that

"where a party to the suit does not appear in the

witness-box and state his own case on oath and

does not offer himself to be cross-examined by the

other side, a presumption would arise that the

case set up by him is not correct."

10. Learned counsel for the appellant has also placed reliance

on the decision of Apex Court in case of Satish Batra vs. Sudhir

Rawal reported in (2013) 1SCC 345, wherein it has held that

"as per terms of contract, it was permissible to

forfeit entire earnest money deposit. There were

no other clauses militating against forfeiture

clause. Appellant seller was justified in forfeiting

entire sum of Rs.7,00,000/- paid as earnes money

deposit. Hence, High Court erred in reversing

decree of trial Court."

He has also placed reliance on the decision of Apex Court

in case of Bachhaj Nahar vs. Nilima Mandal and another (2008) 17

SCC 491

11. Heard learned counsel for the appellant and perused the

record.

12. It is not in dispute that an agreement was executed between

the parties on 30.07.1988, which has annexed herewith as Exhibit P/2.

It is true that on behalf of the respondents/plaintiffs, attorney holder

Rajendra Kumar has been examined before the trial Court. His

authority has not been challegned by the appellant/defendant during the

trial, who is father of Neetu and Ravi Kumar Agrawal. He was very

well aware about the every facts of the case and conditions of the sale

agreement, which was admitted between the parties. It is also admitted

that after execution of the aforesaid deed, appellant/defendant received

total Rs.40,000/- i.e. Rs.20,000/- from each of the

respondents/plaintiffs. So that, principle laid down in case of Man Kaur

(supra) is not applicable in this case.

13. In written statement filed by the appellant/defendant, he

admitted that an agreement has been executed between the parties on

30.07.1988. In the agreement Exh.P/2, it was mentioned that the sale of

total admeasuring 2.50 dismil, i.e. 1.25 dismil agricultural land out of

Khasra No.76/2 area 2.85 acres to each of plaintiffs was at the rate of

Rs.1,25,000/- per acre.

14. Though as per agreement it was agreed to sale the land in

question @ Rs.1,25000/- per acre, but in his written statement it has

wrongly been pleaded that agreed rate was Rs.25000/- per acre. Thus, it

is proved that the transaction took place for a sum of Rs.3,15,000/-

which is more than Rs.2,00,000/-. Therefore, NOC from the Income

Tax Department was necessary as per Clause No.6 of agreement

Exh.P/2. Aforesaid written pleading shows the intention of the

appellant to save himself from his liability under the sale agreement, he

stated wrongly in his written statement.

15. Learned trial Court in Para 8 of the impugned judgment

rightly held that transaction was not below Rs.2 lakhs, therefore, NOC

from the Income Tax Department was mandatory and necessary. The

trial Court has also held that the terms and condition of the Exh.P/2 are

clear and specify the duties and liability of the parties. According to the

condition, which is discussed in para 10 of the impugned judgment, the

terms of agreement are very clear and specifically settle the libilities of

the parties.

16. It was also necessary for the appellant/defendant that after

getting sanction Exh.D/1 from the Urban Land (Ceiling), Bhopal, he

must produce the particulars/details before the competent authority, but

he failed to give proper explanation for not complying with said terms

and conditions and not to file the particulars/details before the

competent authority Urban Land (Ceiling), Bhopal. In paragraph 2 of

the written statement, the appellant/defendent admitted that it was not

necesary. Thus, it is clear that he had not complied with the terms and

conditions of the sale agreement. Therefore, in the light of principle

laid down in the case of Satish Batra (supra), he has no right to forfeit

the entire earnest money from the respondents.

17. Rajendra Kumar Agrawal (PW/1) stated that on the demand

of appellant/defendant, he paid Rs.20,000/- to him at his own house and

the appellant executed receipt as Exh.P/3 to that effect. It is important

to mention here that the appellant Roopram Yadav, in his chief

examination, denied the above fact, but in cross-examination at

paragraph 8, he did not deny the signature on Exh.P/3. Further that, on

the receipt, ticket has been fixed, on which he signed. Therefore, it is

proved that Exh.P/3 was signed by the appellant. He also received

Rs.20,000/- further amount from the respondents. In cross-examination,

he admitted that for obtaining permission both the parties filed their

applications, which are on the record. The signature of the respondents

is also present, on the aforesaid applications, which shows that with the

joint efforts of both the parties permission from Urban Land (Ceiling),

Bhopal was received. Therefore, learned trial Court rightly shifted the

burden of proof under Section 102 of the Indian Evidence Act on the

appellant/defendant to establish his defence for what purpose he signed

Exh.P/3.

18. Learned counsel for the appellant strongly contended that as

per the sale agreement Exh.P/2, suit for specific performance should

have been filed. After perusal of the record, the impguned judgment,

and also the statement of the appellant/defendant, it appears that he

received notice from the Deputy Director as Exh.P/4, in which it was

mentioned that the disputed land falls under the agricultural land for

botanical garden as declared by Bhopal Development Authority and the

same is under consideration of the State Govt..

19. Rajendra Kumar Agrawal (PW/1) stated that in the sale

agreement neither map of the property is annexed nor boundaries of the

suit property is mentioned, therefore, suit for specefic performance

could not be filed.

20. Therefore, learned trial Court rightly considered all these

facts in paragraph 11 and held that the respondents were entitled to

receive refund of the advance money from the appellant/defendant and

decreed the suit in favour of the plaintiffs with interest @ 6% per

annum in place of 18% per annum which was claimed by the

respondents.

21. In the opinion of this Court, findings recorded by the

learned trial Court are based on proper appreciation of evidence

adduced by both the parties and therefore, no interference is called by

this Court.

Accordingly, the appeal being sans merit, stands dismissed.

(SMT. ANJULI PALO) JUDGE

RJ

Digitally signed by RAJESH KUMAR JYOTISHI Date: 2022.01.28 17:14:53 +05'30'