Uttarakhand High Court
Digambar Singh Negi ... vs Govind Singh Negi on 12 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No.48 of 2014
Digambar Singh Negi ...Appellant/Defendant
Vs.
Govind Singh Negi ....Respondent/Plaintiff
Advocate : Mr. Virendra Kaparwan, Advocate for the appellant.
Mr. D.C.S. Rawat, Advocate for the respondent.
Hon'ble Sharad Kumar Sharma, J.
The appellant before this Court is defendant in a suit being Suit
No.06 of 2012, Govind Singh Negi vs. Digambar Singh Negi, which has
been decreed by the court of Civil Judge (Senior Division), Kotdwar,
District Pauri Garhwal, whereby the suit which was filed by the
plaintiff/respondent was decreed and thereby the defendant/appellant; had
been directed to pay an amount of Rs.7,50,000/- alongwith interest, which
has been levied to be payable at the rate of Rs.6% per annum, from the
date of the filing of the suit till the date of the actual payment. It is this
impugned judgment of 28.02.2014, which has been put to challenge by the
defendant/appellant in the present fist appeal.
2. The brief case, which was agitated by the plaintiff in the suit,
which was instituted by him on 13.03.2012, he has prayed for a decree by
way of an injunction to the defendant's to the suit, to refund back the
aforesaid amount, as for the reason being that as a consequence of the two
unregistered agreement, said to have been executed in favour of
plaintiff/respondent, for sale to sell the property, having an area of 2,800
square feet and the construction existing on it, since has not matured to be
executed as per law, hence, he would be at least entitled for the receipt of
the partial sale consideration, which has exchanged hands between the
plaintiff and the defendant, which was being sought to be returned
(refunded) back by filing a suit for recovery of money. The precise case of
the plaintiff in the suit has been that the defendant/respondent, was the
bhoomidhar of a land, which was lying in village Balbhadrapur, Patti,
Sukhro, Tehsil Kotdwar Garhwal as recorded in Khata Khatauni No.2,
having an area of 2800 square feet and it was inter-se between the parties,
it was agreed, that the sale deed of the said land would be executable, in
relation to the land on a total agreed sale consideration of Rs.16.00 lacs. In
order to substantiate the aforesaid claim, the plaintiff/respondent had
submitted that an unregistered agreement for sale was executed on
29.11.2010 in the presence of the witnesses and an earnest money of
Rs.50,000/- was also paid to the defendant/appellant, herein and the
balance amount was allegedly agreed and required to be remitted as per the
covenants of the agreement for sale dated 29.11.2010. In continuation to
the unregistered agreement for sale of 29.11.2010, it was the case that yet
another agreement was executed on 11.12.2010, in continuation thereto
and yet another partial amount was paid towards the sale consideration in
lieu of the aforesaid agreement to sell the property, belonging to the
defendant. The suit in question was contested by the parties to the
proceedings and the aforesaid two agreements were placed on record of the
suit by way of evidence by the parties as Paper No.7 Kha and Ka.
3. The plaintiff contended in the suit, that when there was a
denial from execution of the sale deed on the basis of the aforesaid
agreement for sale they had issued a legal notices, to the defendants,
calling upon the defendant/appellant, herein to return the money paid
towards the partial sale consideration, which was remitted and
consequently a notice of 01.03.2012, was issued wherein it was observed
that a total sum of Rs.7,50,000/-is due to be refunded in view of the
amount already, which was admittedly remitted to the defendant to the suit.
In the suit in question after the exchange of pleadings, the learned trial
court had framed the following issues:-
^^1- D;k oknh ,oa izfroknh ds e/; [kkrk [krkSuh la[;k 2 esa 2800 oxZQhV
Hkwfe o ml ij fufeZr Hkou dks 16]00][email protected]&:0 esa fodz; djus dk djkj
fd;k x;k FkkA\
2- D;k mDr Hkwfe ds fodz; ds laca/k esa oknh ,oa izfroknh ds e/; fnukad
29-11-2010 o 11-12-2010 dks nks bdjkjukesa fy[ks x;s Fks\
3- D;k oknh }kjk fnukad 23-03-2011 rd fodz; ds lac/a k esa izfroknh dks
10]00][email protected]&:0 ¼nl yk[k :i;s½ vnk fd;s x;s Fks vkSj vizSy 2011 esa tc
oknh dh iRuh us 6]00][email protected]&¼N% yk[k :i;s½ izfroknh dks nsus pkgs rks
izfroknh Hkwfe fodz; djus ls euk fd;k o jde ysus ls Hkh euk dj fn;k\
4- D;k fnukad 27-09-2011 esa izfroknh }kjk izkIr nl yk[k :i;s esa ls
2]50][email protected]&:0 dh jde oknh dks okfil ykSVk nh Fkh\
5- D;k oknh] izfroknh ls 7]50][email protected]&:0 dh jde e; 18 izfr'kr C;kt
dh nj ls izkIr djus dk vf/kdkjh gS\
6- D;k oknh }kjk bdjkjukesa dh 'krZ dk ikyu u djus ij bdjkjukesa dh
'krkZsa ds eqrkfcd oknh dk iSlk tCr le>k tk,xk\
7- D;k oknh] izfroknh ds fo:) pkgk x;k vuqrks"k izkIr djus dk
vf/kdkjh gS\^^
4. The parties to the suit, particularly the defendant/appellant
herein in principle, as far as the agreement for sale dated 29.01.2020 which
was placed on record as exhibit being Paper No.7Ka and the agreement
dated 11.12.2010 was on record as that Paper No.7 Ka 1 and the fact of
having remitted the amount through cheque and also in cash, was also
established to be proved by virtue of placement of paper on record as Paper
No.7Ka; as well as the notice dated 01.03.2012, as Paper No.7 Ka/3.
5. The defendant/appellant to the suit had led the solitary
evidence in the proceedings by producing himself in the witness box, apart
from submitting his affidavit by way of Paper No.24 Kha and as per the
said affidavit too placed in examination in chief, the fact of issuance of
notice on 01.03.2012 and the facts of execution of the agreement for sale,
as already referred above, was a fact, which was not principally denied and
accordingly while deciding Issue Nos.1 and 2, the learned trial court, has
recorded the finding that aforesaid two agreements for sale though were
proved, to be executed and it was agreed between the parties to convey the
said property, on an agreed total sale consideration of Rs.16.00 lacs. The
factum of the execution of the agreements for sale, was also an aspect,
which was dealt by the learned trial court while deciding Issue No.2 and it
was concluded by the courts that the agreement of 29.11.2010; was
executed between the parties alongwith the agreement of 29.12.2010.
6. Though the fact remains that once the agreements for sale and
its execution, has been admitted and once the fact of having transferred and
receipt of an amount of Rs.10.00 lacs., for the purposes of execution of
sale deed was also a fact admitted and proved, the learned trial could while
dealing with and deciding Issue Nos.3, 4 and 6, had recorded a finding on
appreciation of evidence, that the plaintiff for purposes of registration of
sale deed, on 23.03.2011, had transferred Rs.10.00/- lacs. and remaining
Rs.6.00 lacs. was assured to be paid at a later stage. While deciding Issue
No.4, the learned trial court has observed that by 27.09.2011, the
defendant/appellant, himself had returned back a sum of Rs.2,50,000/- to
the plaintiff/respondent and this return of Rs.2,50,000/- itself would
amount to be a proof and admission of the defendant/appellant of having
received a sum of Rs.10,00,000/-, which was an aspect already settled by
the Trial Court while deciding Issue No.3. Consequently, the learned trial
court had decreed the suit of plaintiff/respondent, for the remittance of
balance amount of Rs.7,50,000/- alongwith interest, which was made
payable on it at the rate of Rs.6%. It is this judgment, which has been put
to challenge before this Court.
7. In the proceedings before the court below if the oral testimony
of P.W.1 Govind Singh and the statement of Sateshwari Devi, his wife
itself is scrutinised these aspects are apparently, admitted and would
amount to be an admission:-
(a) That the two agreements were executed between the parties.
(b) That both the agreements for sale of an immovable property were
unregistered.
(c) That a total sale consideration agreed to be paid by
defendant/appellant was Rs.16.00 lacs.
(d) That out of the total Rs.16.00 lacs., a sum of Rs.10.00 lacs. was
remitted to the defendant/appellant, as payment of the partial sale
consideration.
8. Apart from it even if the statement of D.W.1, is taken into
consideration, which was on record as Paper No.31 Kha, he had recorded
the following statements:-
^^esjk o oknh dks edku cspus lacaf/kr bdjkjukek gqvk Fkk] bl edku dks
fodz; djus dks 16 yk[k :i;s esa r; gqvk Fkk] xksfoUnflag }kjk eq>s nl yk[k
:i;s vnk dj fn;s Fks] esjs }kjk fodz; ugha gksus ij nks yk[k ipkl :Ik;s
okil fd;s x;s Fks] ;g dguk lgh gS fd 7]50][email protected]& xksfoUnflag ds esjs ikl
'ks"k gSaA eSus Ms< yk[k ugha cfYd lk<s lkr yk[k :i;s oknh dks okil djus
gSaA edku dk ,xzhesUV 11&12&2010 esa gqvk FkkA^^
9. If the statement of D.W.1 as quoted aforesaid is scrutinised, it
yet again leads to an uncontroverted inference of admission of a liability of
Rs.7,50,000/-, which was due to be paid by the defendant/appellant to the
plaintiff/respondent, herein and it is exclusively on the basis of said
statement of D.W.1, the learned trial court had decreed the suit by a
judgment of 28.02.2014.
10. For the purposes of deciding the appeal and considering the
impact of the provisions contained under Order 41 Rule 31 of the C.P.C.,
this Court formulates the following question for determination:-
"As to whether the judgment under challenge in the first
appeal, which is based on an admission of fact in the statement
recorded by the witnesses, would entail the remittance of
decreeing of the money suit for the nature of decree sought for
by the plaintiff?
11. The very fact of simplicitor statement of D.W.1, and its
consideration that itself would suffice to answer the aforesaid point of
determination, where no detailed scrutiny, as such was required for
particularly where the defendant/appellant himself, in his statement
recorded has admitted the fact of acceptance of Rs.10.00 lacs. and has also
accepted the fact that having remitted back a sum of Rs.2,50,000/-this
itself will amount to be an admission; that a balance of Rs.7,50,000/- is due
to be paid. Particularly in the circumstances of present case where on the
basis of an un registered agreement for sale, there was no sale deed
executed as such, even otherwise also as per law, the sale deed could not
have been executed, under the strength of an un registered agreement for
sale. But still the fact remains that once the defendant/appellant, in his
statement, admits the fact of having accepted a partial sale consideration;
by his own act and conduct of remitting Rs.2,50,000/- and further
particularly when there is an admission of having accepted the amount,
than that obviously the decree rendered by the learned trial court on
28.02.2014 directing the defendant/appellant to remit Rs.7,50,000/-
alongwith interest, cannot be faulted of because it is an admitted liability ,
which was foundationed on an admitted execution of agreement for sale.
Hence, I do not find any perversity in the impugned judgment rendered by
the 1st Appellate Court decreeing the suit for the money recovery of
Rs.7,50,000/- and the aspect pertaining to the remittance of interest at the
rate of Rs.6% per annum on the amount due to be paid, I am of the view
that even as per the prevalent bank rate, it is the normal interest, which
would be payable, because even otherwise also the capital which otherwise
belonged to the plaintiff/respondent herein, which fell into the custody of
the defendant/appellant, herein would be deemed that it was enjoyed by
him during this period, and hence the plaintiff would be entitled for the
payment of interest, too as the defendant/appellant cannot be beneficiary of
a wrongful transaction by enjoying the capital of the plaintiff/respondent,
hence, the levying of the interest at the rate of Rs.6% is also not faulted.
Consequently, the appeal lacks merits and the same is dismissed,
accordingly.
(Sharad Kumar Sharma, J.)
12.03.2021
Arti/
