1 - Vipul Kotadiya S/o Shri Vijay Kotadiya Aged About 36 Years R/o Aara v. 1 - Laxmi Niwas Sarda S/o Ratanlal Ji Sarda Aged About 72 Years R/o
Case Details
1 2025:CGHC:14791-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 164 of 2022 1 - Vipul Kotadiya S/o Shri Vijay Kotadiya Aged About 36 Years R/o Aara Machine Road, Ward No. 27, Behind B.J.P. Office, Rajnandgaon, Tehsil And District- Rajnandgaon, Chhattisgarh ... Appellant(s) versus 1 - Laxmi Niwas Sarda S/o Ratanlal Ji Sarda Aged About 72 Years R/o Vardhaman Nagar, Rajnandgaon, Tehsil And District- Rajnandgaon, Chhattisgarh ... Respondent(s) For Appellant(s) : Shri Ashish Surana, Advocate For Respondent(s) : Shri Anant Bajpai, Advocate DB : Hon’ble Smt. Justice Rajani Dubey
Legal Reasoning
before it, decreed the suit which is assailed before this Court in this appeal. 10. Learned counsel for the appellant argued that the learned trial Court committed an error of law and fact in decreeing the suit. The learned trial Court failed to appreciate the evidence of the parties to its proper perspective and erroneously passed the impugned judgment and decree. He submits that the oral agreement is with regard to the property situated at village–Parrikala and not with respect to the property situated at village–Kaurinbhata. The advance of Rs.15 6 lakhs was not in respect to the oral agreement of property situated at village Kaurinbhata rather it was in respect of property situated at village-Parrikala. As the plaintiff failed to perform his part of contract, the defendant suffered a loss of Rs.20 lakhs which ought to have adjusted by the learned trial Court. He submits that the finding on issue No.1 is perverse, contrary to the record and is liable to be set aside. Likewise, the finding on issue no.2 and 3. Therefore, he submits that the appeal may be allowed. 11. Learned counsel for the respondent/plaintiff submits that the receipt of Rs.15 lakhs through three cheques is not in dispute. He submits that the oral agreement was in respect to purchase the property at village – Kaurinbhata and the defendant failed to prove any oral agreement in respect of the property situated at Parrikala and considering the evidence in this regard, the learned trial Court rightly decided the issues in favour of the plaintiff. He submits that the learned trial Court has categorically given a finding that the amount of Rs.15 lakhs was paid by the plaintiff to the defendant in respect to the oral agreement for purchase of property situated at village-Kaurinbhata and the finding is based upon proper appreciation of evidence. Likewise, the finding on issue No.2 and 3 is also on proper appreciation of evidence and does not require any interference. He placed reliance on the judgment of Hon’ble Supreme Court in the case of Satish Batra v. Sudhir Rawal, (2013) 1 SCC 345 and Suresh Kumar Wadhwa v. State of Madhya Pradesh and ors, (2017) 16 SCC 757. 12. Heard the learned counsel for the parties and perused the records. 13. Issue No.1 is with regard to oral agreement for purchase of property situated at village–Kaurinbhata and payment of Rs.15 lakhs by the plaintiff to the defendant. The payment of Rs.15 lakhs is not in dispute. The only dispute which 7 appears to be looked into is that whether such amount was paid in respect of the oral agreement of sale of property situated at village – Parrikala or not. 14. From perusal of the evidence it appears that the plaintiff made a complaint (ExP/1) dated 01/12/2016 to the Superintendent of Police, Rajnandgaon. Thereafter, the defendant sent a notice dated 14/02/2017 (Ex.P19 - D/1) and asked the plaintiff to pay remaining Rs.60 lakhs and got the sale deed executed in respect of the property situated at Parrikala instead of village–Kaurinbhata. In reply to that a notice dated (Ex.P/20) was sent by the plaintiff and it was stated that the property 50x580 sq.ft. situated at village - Kaurinbhata was agreed to be sold at Rs.65 lakhs and he is ready to pay the remaining amount of Rs.50 lakhs to get the sale deed executed within 30 days and replying to that, the defendant sent a notice (Ex.D/2) 27/04/2017 to get the sale deed executed in respect of the property situated at village-Parrikala. 15. Case of the plaintiff from the very beginning is that an oral agreement was entered into in respect of the property situated at village -Kaurinbhata. The plaintiff examined himself as PW1. In his evidence before the Court, he has categorically deposed with regard to the oral agreement in respect of the property situated at village–Kaurinbhata. He further deposed with regard to lodging of complaint before the Superintendent of Police, Rajnandgaon on 01/12/2016 and also deposed that he paid the defendant Rs.15 lakhs through three different cheques. 16. Dinesh Kothari (PW2) was examined who also deposed in the same line that an agreement was entered into in respect of the property situated at village – Kaurinbhata for a sale consideration at Rs.65 lakhs and Rs.15 lakhs was received as an advance by three cheques of Rs.5 lakhs. 8 17. The defendant tried to establish before the trial Court that the money was not received in respect of the oral agreement in respect of the property situated at village–Kaurinbhata rather it was received by him for sale of property situated at village-Parrikala. He tried to establish that the oral agreement was entered into with respect to that property for a sale consideration of Rs.75 lakhs and since the plaintiff failed to perform his part of contract, he suffered loss of Rs.20 lakhs. But nothing has been substantiated by him as to how the loss was caused. Even otherwise, the amount is lying with the defendant may be under oral agreement with respect of sale of property situated at village–Parrikala and the same would amount to undue enrichment to the plaintiff. Learned trial Court categorically gave a finding that the said amount is still lying with the defendant and failed to establish that there was an oral agreement in respect of the property situated at village–Parrikala and in the absence of performance of that oral agreement, the advance amount would be forfeited. Supreme Court in the case of Satish Batra (supra) held that precision and clarity in clauses of contract to justify forfeiture is necessary and that in agreement for purchase of immovable property the forfeiture clause will not apply when the payment is made only towards part payment of consideration and not intended as earnest money. 18. In the light of above, the finding of the learned trial Court does not appear to be perverse or contrary to the evidence. The appeal therefore, fails and is accordingly dismissed. Decree be drawn accordingly. The appellant to bear the cost of the appeal. Sd/- Sd/- (Rajani Dubey) JUDGE (Sachin Singh Rajput) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.04.03 16:48:20 +0530
Arguments
Hon’ble Shri Justice Sachin Singh Rajput Judgment on Board Per Sachin Singh Rajput, J. 27/03/2025 Being aggrieved by the judgment and decree dated 30/07/2022 passed by the Upper District Judge, (FTC) Rajnandgaon, District – Rajnandgaon (CG) (for short ‘trial Court’) passed in Civil Suit No.1-B/2018, this appeal under Section 96 of the Code of Civil Procedure, 1908 (for short ‘ CPC’) has been filed by the appellant / defendant. 2 2. 3. The parties are referred to as their status before the trial Court. Facts of the case in nutshell is that the plaintiff filed a suit for recovery of Rs.18,93,750/- and interest @ 9% from 12/02/2018 till its realisation. The admitted fact of this case is that the plaintiff purchased a property comprised in piece of land bearing khasra No.102, area 155 dismil (about 120x580 sq.ft) out of 50x580 sq.ft. situated at village–Kaurinbhata Ramkrishna Ward, Ward No.19, P.H.No.36, RIC Tahsil and District – Rajnandgaon vide registered sale deed dated 18/10/2005 from Anopchand Kotadiya. It is also admitted that the plaintiff paid the defendant Rs.5 lakhs through cheque No.048044, Rs.5 lakhs through cheque No.048045 and Rs.5 lakhs through cheque No.048046 from his account No.31842395829 of State Bank of India, Main Branch, Rajnandgaon on 12/03/2015. The plaintiff paid total amount of Rs.15 lakhs to the defendant. It is also an admitted fact that the plaintiff made a complaint against the defendant to the Superintendent of Police, Rajnandgaon on 01/12/2016. It is also an admitted fact that the plaintiff sent a notice dated 14/02/2017 through his advocate to the defendant. 4. As per the pleadings of the plaint, in the east side of the boundaries of the property which was purchased by the plaintiff from Anupchand Kotadiya, 20 feet road was mentioned. After obtaining possession of the said property, the plaintiff demarcated the property on 10/01/2006 and on 29/05/2011. In both the demarcation report, on the east side of the property purchased by the plaintiff, 20 x 580 sq.ft. road was shown. After the said property was sold by Anupchand Kotadiya, the land of 70 x 580 sq.ft. was left in which 20x580 sq.ft road was mentioned in the sale deed. Thereafter, Anupchand Kotadiya vide registered sale 3 deed dated 21/03/2012 sold the remaining property of 50x580 sq.ft. including property left for the road 20x580 sq.ft. to the defendant. The plaintiff came to know about this on 10/02/2015. Further pleadings of the plaintiff is that an oral agreement to sell was entered into between the plaintiff and the defendant to purchase the property of 50x580 sq.ft. which has a boundary as G.E.Road in the North, land of Raj Builders in the south, land of Satbir Kaur and Bhojani in the East and after 20 ft. road in the west, land of Laxmi Niwas for a sale consideration of Rs.65,0000/- and for that an advance of Rs.15 lakhs through three cheques of State Bank of India was paid to the defendant. The defendant was required to execute a sale deed of that property after receiving Rs.50 lakhs from the plaintiff. The plaintiff on many occasions requested the defendant for the same which was denied by him on the pretext that the land of 20x580 sq.ft. has been sold by Anupchand Kotadiya to the defendant for which an additional amount of Rs.26 lakhs is to be paid by the plaintiff which was objected by the plaintiff on the ground that the said land was left by Anupchand Kotadiya for road which was mentioned in the registered sale deed dated 18/10/2005. This led to dispute between the plaintiff and the defendant. 5. After the dispute ensued, the plaintiff made a written complaint before the Superintendent of Police on 01/12/2006 against the defendant and his father Vijay Kotadiya. After the police enquiry, the defendant sent a registered notice dated 14/02/2017 and admitted receipt of Rs.15 lakhs through cheques, however, gave a false excuse that the said amount was received as an advance in respect of the property comprised in piece of land bearing khasra nos.219/1 area 1.54 acre situated at village-Parrikala, Tahsil and District – Rajnandgaon (CG). There was no agreement in respect of the land situated at village–Parrikala between the 4 plaintiff and the defendant. The agreement was only in respect of the suit property. Further pleadings reflect that the plaintiff was always ready and willing to execute the sale deed after payment of remaining amount, however, due to unnecessary dispute, the plaintiff and defendant agreed to cancel the deal and defendant agreed to return the said amount with 9% interest within a week in the meeting dated 22/1/2018, however the said amount was not refunded by him. Therefore, the suit was filed. 6. Barring the admitted facts, the defendant in his written statement pleaded that though the agricultural land was purchased by the plaintiff from Anupchand Kotadiya but the description of boundaries has wrongly been given. The defendant has no relationship with the sale deed. There is some interpolation in the sale deed. No demarcation was conducted in presence of the defendant. It was further pleaded that out of 1.5 acres of land, 66.75 dismil agricultural land was sold by Anupchand Kotadiya to the plaintiff and the remaining 88.25 dismil land on the east side of the sold land which was sold by Anupchand Kotadiya through a registered sale deed dated 31/03/2012 to the defendant and delivered the possession. It was further pleaded that an oral agreement in respect of property comprised in piece of khasra No.219/1 area 1.54 acre situated at village– Parrinala for a consideration of Rs.75 lakhs was entered into between the plaintiff and the defendant on 12/03/2015 and in that respect, Rs.15 lakhs as advance was paid by the plaintiff to the defendants through cheques No.048044, 048045 and 048046. The defendant was always ready and willing to execute the sale deed in respect of the said property, however, the plaintiff deliberately avoided the same and made false statement to purchase the property situated at village-Kaurinbhata. The notice sent by the plaintiff was duly replied by the defendant through his advocate vide reply dated 14/02/2017 and requested to execute a sale deed in respect of the 5 property situated at village – Parrikala, however, the plaintiff did not pay the remaining amount of Rs.60 lakhs and failed to execute the sale deed resulting into loss of Rs.20 lakhs to the defendant. Therefore, the said amount be adjusted in the advance paid by the plaintiff. The defendant denied the meeting dated 22/06/2016 and prayed for dismissal of the suit. 7. On the basis of above broad pleadings, learned trial Court framed following issues - 1. Whether the plaintiff entered into an oral agreement of sale of land bearing khasra No.102/1, 50x580 sq.ft. situated at village – Kaurinbhata, P.H.No.36 Ward No.19 and received Rs.15,000/- by the plaintiff. 2. Whether the plaintiff is required to refund the amount of Rs.15,000/- in case the defendant does not execute a registered sale deed in respect of the suit property. 3. Whether the defendant is entitled to receive Rs.18,93,750/- from the plaintiff along with 9 % interest from 12/02/2018 till the date of payment. 4. Relief and cost. 8. The plaintiff, in order to prove it case, examined as many as two witnesses. The defendant examined himself and exhibited 2 documents. 9. Learned trial Court on assessment of the evidence and material brought