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Judgment
K.L. Manjunath, J.—The appellants were the defendants in O.S. No. 376/2002 on the file of Principal Civil Judge, (Sr.Dn.), Davanagere. The aforesaid suit was instituted by the Respondent for recovery of Rs. 5,00,000/- which was paid as advance sale consideration to purchase the suit schedule property along with interest at 18% p.a. The suit filed by the Respondent came to be decreed on 30th September 2004. The court has directed the appellants herein to refund the advance of Rs. 5,00,000/- which was received by them as advance sale consideration along with the interest at 9% p.a. This Judgment and decree is called in question in this appeal.
The facts leading to this appeal are as hereunder:
The plaintiff being a native of Davanagere city agreed to purchase the schedule property from the defendants for a sum of Rs. 16,90,501/- and on different dates the plaintiff has paid a sum of Rs. 5,00,000/- as advance sale consideration. Accordingly, an agreement was entered into between the parties on 28.8.2000. The sale transaction was required to be completed within six months from the date of the agreement. The defendants had borrowed loan from Shiva Co-operative Bank Limited, Davanagere and that the plaintiff has agreed to discharge the loan payable by the defendants to the aforesaid Bank.
According to the plaint averments, though the plaintiff was ready with balance sale consideration after the agreement, if was learnt by her that the actual extent of property agreed to be sold in her favour was 45 ft. x 45 ft. but when the property was measured, actually it was only 30 ft. x 58 ft. and that the defendants did not possess the valid title to the remaining extent. In the circumstances, she filed a suit for recovery of the amount. It is also averred in the plaint that the original agreement dt. 28.8.2000 executed by the defendants had been lost by the plaintiff. Therefore, the suit filed based on the lost document.
The defendants contested the suit. They admit the transaction and the agreement dt. 28.8.2000 and they also admit the receipt of Rs. 5,00,000/- from the plaintiff. According to them, they had not agreed to sell 45 ft x 45 ft. and that the plaintiff was required to purchase 15 x 45 ft. from the real owner and therefore, the suit filed by the plaintiff is not-maintainable.
Based on the above pleadings, the following issues were framed by the court below:
1) Whether the plaintiff proves that the defendant No. 1 and late A.R. Siddeshappa agreed to sell the suit property to plaintiff for valuable consideration of Rs. 16,90,501/-?
2) Whether plaintiff further proves that defendant No. 1 and late A.R. Siddeshappa in all received a sum of Rs. 5 lakhs from plaintiff on 28.8.2000 and executed agreement of sale in favour of plaintiff?
3) Whether plaintiff further proves that defendant No. 1 could not able to produce the valid title deeds of suit properties as agreed?
4) Whether plaintiff further proves that there is a cause of action?
5) Whether plaintiff is entitled for decree sought?
6) Whether defendants prove the contentions taken in para 11(b) of the written statement?
7) What decree or Order?
In order to prove their respective contentions, on behalf of the plaintiff, her Power of Attorney was examined as PW1 and the plaintiff relied upon Ex.P1 to P4. On behalf of the defendants, four witnesses were examined as DW1 to DW4 and out of them 3rd defendant was examined as DW1, The defendants relied upon Ex.D1 and 2 - Bank challans.
The Trial Court after appreciating the entire evidence on record, held issues-1 to 3 in affirmative, issue-6 in negative and ultimately suit came to be decreed for recovery of Rs. 5,00,000/- with interest at 9% p.a. This Judgment and decree is called in question in this appeal.
According to Mr. Vishwajith Shetty, the learned counsel for the appellants, the Trial Court has committed an error in decreeing the suit in the absence of production of the agreement of sale. According to him, the original agreement dt. 28.2.2000 was later cancelled on 28.8.2000. It is also his case what was agreed to be sold was 30 x 58 ft. and no 45 x 45 ft. According to him, the plaintiff was not ready and willing to perform her part of the contract. In the circumstances, he requests the court to re-appreciate the entire evidence and set aside the Judgment and decree of the court below.
Having heard the counsel for the appellants, the only point to be considered by us in this appeal is whether the Trial Court has committed an error in decreeing the suit in directing the appellants to pay a sum of Rs. 5,00,000/- along with the interest.
It is no doubt true that the plaintiff has not produced the original agreement of sale. However, the defendants have admitted the execution of the agreement of sale and receipt of the advance sale consideration of Rs. 5,00,000/-. Therefore, the dispute was only in regard to whether the plaintiff was ready with the balance sale consideration and whether the plaintiff could not purchase the property on account of the discrepancy in the actual measurement of the property with the measurement shown in the agreement. When defendants are having copy of the agreement, this aspect has not been disputed by the defendants. Therefore, there was no difficulty for the defendants to produce the copy of the agreement which they had. When the defendants have admitted the execution of the agreement of sate and the receipt of the advance sale consideration, the only dispute would be whether the measurement shown in the agreement of sale does not tally with the measurement on the spot. This could have been proved by the appellants herein if they had produced the copy of the agreement which they possessed, When the plaintiff contends that she has lost the agreement of sale, we cannot find fault with her in not producing the same. When the defendants are having copy of the agreement of sale, when they have failed to produce the same, an adverse interference has to he drawn against the defendants.
In the circumstances, we do not set any merits in this appeal, According to us, the Trial Court is justified in decreeing the suit.In the result, the appeal is dismissed. Appellants have to bear the costs.