HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.533 of 2011 ====================================================== 1. Smt. Urmila Devi W/O Late Krishna Jee Dubey Resident Of Mohalla- Ranighat, P.O Mahendru Patna-6, P.S- Sultanganj, District- Patna. 2. Arun Dubey S/O Late Krishna Jee Dubey Resident Of Mohalla- Ranighat, P.O Mahendru Patna-6, P.S- Sultanganj, District- Patna. 3. Ganesh Dubey S/O Late Krishna Jee Dubey Resident Of Mohalla- Ranighat, P.O Mahendru Patna-6, P.S- Sultanganj, District- Patna. Defendants-Appellants-Appellants. Versus 1. Santosh Kr. Sinha S/O Late Ram Chandra Prasad Sinha Resident Of Town Barh, P.S- Barh, Dist- Patna, At Present Mohalla- Ranighat, Sumati Path, P.O Mahendru Patna-6, P.S- Sultanganj, District- Patna. Plaintiff-Respondent-Respondent. ====================================================== Appearance : For the Appellant/s : Mr. Abinash Kumar, Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 5 17-05-2013 Heard the learned counsel for the appellants in support of this appeal. The learned counsel who has appeared for the respondent is also present. 2. The defendants are the appellants in this appeal against the judgment and decree of affirmance upholding the decree of specific performance of contract in favour of the
Legal Reasoning
plaintiffs. 3. The matrix of facts of the case would unveil that the defendants have executed the deed agreement for sale (Ext.1) in favour of the plaintiffs, whereby they have agreed to sell their land, mentioned in the deed, with the plaintiff for a consideration 2 Patna High Court SA No.533 of 2011 (5) dt.17-05-2013 2 / 7 amount of Rs. 1,85,000/-. The plaintiff has claimed a decree for specific performance of the said contract against the defendants stating that he had already paid a total of Rs. 1 lac to the defendants by way of advance money and therefore has been ever ready and willing to perform his part of the contract to get the sale deed executed after paying the remaining consideration money but the defendants have refused to execute the sale deed as agreed. The defendants, in turn, have denied the claim of the plaintiff to have paid Rs. 1 lac as advance money and have asserted that only Rs.50,000/- was paid to the defendants as advance money out of which Rs. 49,500/- was paid by cheque and Rs. 500/- was paid in cash. It has also been asserted that the plaintiff had never been ready and willing to perform his part of the contract by paying the remaining amount of consideration money which fact had caused loss to the defendants because the defendants have agreed to sell the land for the purpose of raising funds for the marriage of the daughter. 4. The trial court, after considering the pleadings and evidence of the parties, returned the finding that the plaintiff had paid total Rs.1 lac to the defendants by way of advance money for purchase of land as agreed out of which Rs. 50,000/- was paid at the time of execution of the deed of agreement for sale and 3 Patna High Court SA No.533 of 2011 (5) dt.17-05-2013 3 / 7 subsequently Rs. 49,500/- was paid by cheque and Rs.500/- was paid in cash. It was also held that the plaintiff was ever ready and willing to perform his part of the contract. The suit, therefore, was decreed granting the reliefs as prayed by the plaintiffs. In appeal, the appellate court, after reappraisal of pleadings and evidence of the parties, has concurred with the findings of the trial court and dismissed the appeal by the impugned judgment and decree. 5. The learned counsel for the defendant-appellant has submitted that both the courts below have not considered the material evidence on the issue of payment of advance money by the plaintiff as claimed and by misconstruing the evidence also have reached to the finding that the plaintiff has paid Rs. 1 lac as advance money to the defendants at the time of execution of the agreement for sale. It has been urged that the falsity of the case of the plaintiff regarding payment of Rs. 1 lac as advance money is apparent when the plaintiff accepted the execution of the agreement for sale on 21.06.2000 but has claimed that the remaining amount of Rs. 50,000/- was paid on 23.06.2000 by cheque and cash. Criticizing the impugned judgments further, it has been submitted that as the plaintiff demonstratively has failed to establish the case of payment of advance money as claimed, the agreement for sale becomes void and not enforceable by the Court. 4 Patna High Court SA No.533 of 2011 (5) dt.17-05-2013 4 / 7 The learned counsel has also placed the parts of the impugned judgment and decree of the appellate court below to establish that the evidence have not been considered properly and perverse reasonings have been assigned, while holding the plaintiff to be entitled to the decree as prayed. 6. From the perusal of the impugned judgments and after consideration of the submissions on behalf of the appellants, it is pellucid that the demonstrable facet of discord between the parties is the fact of payment of Rs. 1 lac as advance money by the plaintiff to the defendants in pursuance to the agreement for sale (Ext.1), as claimed by him. The plaintiff has pleaded that he paid Rs. 50,000/- in cash at the time of execution of the deed (Ext.1) on 21.06.2000 and the said payment was endorsed on the deed and two days thereafter i.e. on 23.06.2000 the further payment of Rs. 49,500/- by cheque was made to the defendants besides payment of Rs. 500/- in cash. The cheque was drawn in the name of Ashok Tiwary (a close relative of the defendants) on the direction of the defendants as there was no account in the bank in the name of the vendor Urmila Devi (defendant no.1 in the suit). It has also been pleaded that the cheque was encashed from the bank of 26.06.2000. The witnesses examined on behalf of the plaintiffs supported the said case of the plaintiff. However, the defendants’ 5 Patna High Court SA No.533 of 2011 (5) dt.17-05-2013 5 / 7 case is that only Rs. 50,000/- was paid as advance money out of which Rs. 49,500/- was paid through cheque by the plaintiff on 21.06.2000 at the time of execution of agreement for sale and Rs. 500/- was paid in cash. It is their further case that the said cheque was not honoured in the bank as Urmila Devi had no account in the bank, and thus, on refusal of payment by the bank, the aforesaid cheque was returned to the plaintiff who granted another cheque of Rs. 49,500/- in the name of the mediator Ashok Tiwary. However, the witnesses examined on behalf of the defendants have not supported the case as pleaded by the defendant. It would be significant to take into notice that although there is endorsement in the agreement for sale( Ext.1) regarding the receipt of Rs. 50,000/- but there is no mention in the endorsement or in the recital of the deed regarding the payment of Rs. 49,500/- by cheque and Rs. 500/- in cash. It is no where case of the defendant that the receipt of Rs. 50,000/- as mentioned in the deed (Ext.1) was partly by way of cheque of Rs. 49,500/- and was made in anticipation of its encashment in the bank. The witnesses examined on behalf of the defendant have also not supported the case as pleaded by the defendant that the cheque given by the plaintiff in the name of Urmila Devi on 21.06.2000 was not honoured by the bank which refused payment and after that, the 6 Patna High Court SA No.533 of 2011 (5) dt.17-05-2013 6 / 7 cheque was returned to the plaintiff rather, as noticed by the appellate court below, the witnesses of the defendants have stated that the cheque was returned at once to the plaintiffs. No evidence has been led on behalf of the defendants to establish the fact of the grant of cheque in the name of Urmila Devi in the first instance and the refusal of its encashment by bank. Moreover, the vendor of the defendant no.1 Urmila Devi also failed to examine herself in the suit to support her case as pleaded. Both the courts below have evaluated the oral and documentary evidence of the parties, and thereafter have reached to the conclusion that the plaintiff paid Rs. 50,000/- at the time of execution of a deed of agreement for sale on 21.06.2000 and further paid Rs. 49,500/- on 23.06.2000 by cheque and Rs. 500/- by cash and I find no perversity in the findings by the courts below. Both the courts below have also on consideration of evidence have found that the plaintiff has been ready and willing to perform his part of the contract. 7. The learned counsel for the appellants has made strenuous attempt to persuade this court to reconsider the evidence on the ground that another view is most probable. However, the reappreciation of evidence at the second appellate stage is not permissible and that too when both the courts below on evaluation 7 Patna High Court SA No.533 of 2011 (5) dt.17-05-2013 7 / 7 of the evidence of the parties have reached to the concurrent findings of fact, and no perversity in those findings could be established. The civil disputes are decided on the basis of preponderance of probabilities and the cumulative effect of the entire evidence on the basis of the pleadings is the material consideration. 8. In this view of the matter, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)