Munna Lal Sinha vs Sugreev Ram Sinha

The instant appeal has been preferred by the plaintiff being aggrieved by the judgment dated 25.7.2012 passed by the Additional District Judge, North Bastar Kanker in Civil Suit No.1A of 2012, whereby the Trial Court has dismissed the suit for specific performance of the agreement.

According to the pleadings of the Appellant/plaintiff, Respondent 1/ defendant 1 received an amount of Rs.1,46,000 as a loan on 3.5.2010 for his personal use and made an agreement (Ex.P1) to refund the said amount of loan upto 31.5.2010. In the said agreement, it has also been mentioned that if the amount is not refunded within the stipulated period mentioned in the agreement then he will sell the land which is situated on the way of Chhapar Bhumi Haradula and according to the Patwari record the said land bears Khasra No.11/38 area 0.41 RA. Respondent 1/defendant 1 completely failed to refund the above loan amount and did not execute the sale-deed in favour of the Appellant/plaintiff within the stipulated period. The plaintiff contacted defendant 1 many times for execution of the sale-deed as well as for getting the refund of the given amount, but, defendant 1 failed to do so. The plaintiff also sent legal notices twice, but, despite that defendant 1 did not reply the notices and neither he refunded the loan amount nor did he execute the sale-deed. Thus, the civil suit was filed by the plaintiff.

Before the Trial Court, despite service of notice, defendant 1 remained absent and the Trial Court proceeded ex parte. After recording of the evidence of the plaintiff, the Trial Court, vide the impugned judgment dated 25.7.2012, dismissed the suit on the ground that in the agreement to sell description of the land is not mentioned and, therefore, the agreement is not executable. Hence, this appeal.

Learned Counsel appearing for the Appellant/plaintiff submits that both the Appellant/plaintiff and his witness in their statements under Order 18 Rule 4 of the Code of Civil Procedure clearly mentioned the description of the suit land, but, despite that, the Court below dismissed the suit, which is contrary to the evidence available on record. Alternatively, it is argued by Learned Counsel that if any decree for specific performance of the agreement cannot be granted then the loan amount of Rs.1,46,000 be ordered to be refunded to him along with interest.

Learned Counsel appearing for Respondent 1/defendant 1 submits that from perusal of the agreement (Ex.P1) it is clear that the agreement is not executed for sell of any property. Rather, it is executed as a security against the loan taken by defendant 1 from the plaintiff. Therefore, specific performance of the agreement to sell the land in question on the basis of the agreement is not possible. It is further submitted that as in the plaint there is no claim by the plaintiff for refund of the loan amount of Rs.1,46,000, therefore, as contained in sub-section (2) of Section 22 of the Specific Relief Act, the relief of refund of the loan amount cannot be granted to the plaintiff.

I have heard Learned Counsel appearing for the parties and perused the record of the Trial Court including the evidence adduced by the plaintiff with due care.

From perusal of the agreement (Ex.P1), it is established that Ex.P1 is not an agreement to sell any property. Rather, it is an agreement which was executed between the plaintiff and defendant 1 as a security for refund of the loan amount of Rs.1,46,000. Therefore, in my considered view, on the basis of the agreement (Ex.P1), a decree for specific performance of the agreement to sell the suit property cannot be granted.

With regard to refund of the loan amount of Rs.1,46,000, though this relief has not been claimed in the plaint, in the light of a judgment of a Division Bench of this Court in Shankarlal Bijreja v. Ashok B. Ahuja, 2011 (1) CGLJ 498, in which this Court has observed that in appropriate cases where specific performance is refused the Court may direct refund of amount to the plaintiff even though he has not specifically asked for it in the plaint, the relief of refund of the loan amount can be granted to the plaintiff.

Resultantly, the instant appeal is partly allowed. The impugned judgment dated 25.7.2012 is set aside. The loan amount of Rs.1,46,000 be refunded to the Appellant/plaintiff along with simple interest @ 6% per annum from the date of filing of the civil suit before the Court below till final payment.

A decree be drawn up accordingly.