Vs. Patirambhau  INSC 385 (3 April 1997)
RAMASWAMY, D.P. WADHWA
O R D
E R This appeal by special leave arises from the judgment of the Division Bench
of the Bombay High Court, made on July 30,1985 in First Appeal No. 46/1979.
admitted facts are that the appellant had 22.38 acres of land in Village Gondia.
A document purporting to be an agreement of sale was executed on April 20,1972
for sale of 11.76 acres out of the said land for a consideration of
Rs.50,000/-. The recital therein and an endorsement on the foot of it is to the
effect that a sum of Rs.48,000/- was received as consideration of sale of the
said lands and balance of Rs.2,000/- was required to be paid within one year
and sale deed was required to be executed thereon.
the sale deed was not executed within one month prior to the date of the expiry
of 3 years' period from the date of agreement on March 13, 1975, the respondent got issued the suit notice calling upon the
appellant to execute the sale deed. On failure thereof, he filed the suit on
the last day of the limitation. The trial court dismissed the suit.
appeal, the High Court, while rejecting the relief of specific performance,
directed payment of a sum of Rs.62,280/- inclusive of the principle sum of Rs.
48,000/- interest accrued thereon and cost plus 6% future interest on the
principal amount of Rs.48,000/-. Thus, this appeal by special leave.
contention raised by Shri Deshpande, learned counsel for the appellant, is that
the High Court and the trial Court concurrently disbelieved the agreement
purporting to be for alienation of the land but was, in fact, in truth and in
reality a money transaction. Having come to that conclusion , the High Court
would have agreed that the amount payable towards interest on the unpaid loan
taken by the appellant from the respondent . On the admitted finding that the
respondent. On the admitted finding that the respondent was money-lender, it
would be unlikely that he had paid Rs.48,000/- as cash consideration for that
agreement; and would not have kept quite without asking for the delivery of the
possession and then without paying Rs. 2,000/- for 3 years and filing the suit
on the last date.
these circumstances, necessary conclusion would be that the purported
endorsement was not, in fact, receipt of the amount but dues owed to him. Shri Uday
Umesh Lalit, learned counsel for the respondent, on the other hand, contends
that in view of the fact that the respondent executed endorsement as
consideration of Rs.48,000/- was paid as a fact is a finding of fact,
Therefore, it needs no interference.
regard to respective contentions, the question that arises for consideration
is; whether the respondent has paid Rs.48,000/- as cash consideration towards
sale transaction? It is seen that document purporting to be an agreement of
sale was not , in fact, in truth and in reality, not an agreement of sale,
witness No.2, the scribe of the agreement admitted in the examination-in-chief
that he had executed several similar documents. All those documents i.e., 10
out of 8, relate to specific performance;
them are of those who took loan from the respondents.
an admitted position that the respondent is a money- lender. Under these
circumstances, the document purporting to be an agreement for sale is in fact
not an agreement for sale; it is towards the unpaid interest on the loan taken
by the respondent. It is seen that the High Court also accepted that the
appellant had taken a loan in 1965 for a sum of Rs.1500/- and repaid Rs.3500/-.
Shri Deshpande says that the sum of Rs. 15,000/- is not factually correct; it
is actually only Rs.1,500/-. If it is true sale transaction and the respondent
being a businessman and having purported to have paid Rs.48,000/-, one would
expect that he would seek possession or he would pay the balance consideration
and request for execution of the sale deed. Instead, he kept quite for full 3
years. be that as it may, it would appear that there was money transaction
between the appellant and the respondent and the respondent, being
money-lender, was taking documents, purporting to be an agreement of sale, from
the loanees. In the event of the loanees failure to pay the loan amount along
with interest stipulated by him, the documents would, obviously, be executed,
with a view to enforce the repayment of loan and interest accrued thereon.
unlikely that being a money-lender and having parted with Rs.48,000/- as cash,
he would have kept quite either for seeking possession of the property or
payment of Rs.2,000/- immediately and then sought specific performances; it
would be unlikely in the normal circumstances that he would have waited for 3
years for issuing notice and then filing suit on the last date. Under these
circumstances, the Courts below rightly came to the conclusion that it is not
an agreement for sale or purports to be a sale in truth and in reality, but in
view of the admission made by the respondent by way of endorsement that he had
received Rs.48,000/- and in the absence of any specific circumstances and in
view of the doubtful conduct of both the parties, it is not possible for us to
reach any satisfactory conclusion on the basis of evidence as to what a was the
amount actually due to paid by the appellant to the respondent and what amount
is still payable. Under these circumstances, we are of the considered view that
the ends of justice would be met if the conclusion reached by the High Court
that a sum of Rs.48,000/- was paid by the respondent to the appellant, is confirmed.
However, respondent is not entitled to payment of any interest or cost, as
ordered by the High Court. Under these circumstances, the order of the Division
Bench of the High Court for payment of Rs.65,280/- is set aside. Instead, there
will be a decree for a sum of Rs.48,000/- in lump-sum without any interest.
appeal is, accordingly, allowed with the above modification. No costs.
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