Smt. G. Roopa vs Sri. V. T. Manjunath

Hon''ble Mr Justice Huluvadi G. Ramesh

This is a defendant''s appeal challenging the judgment and decree passed by the I Addl. Civil Judge, Sr. Dvn., Chitradurga in OS 140/2001 decreeing the suit of the plaintiff. Plaintiff filed a suit for recovery of Rs. 1,02,640/- with interest at 24% from the date of suit till realization. According to the plaintiff, on 21.7.1997 the 1st defendant entered into an agreement with the plaintiff in respect of selling house property allotted to her by the Karnataka Housing Board. The 1st defendant expressed her inability to pay the entire amount in respect of the house allotted to her and the plaintiff came forward to pay Rs. 65,000/- having agreed to purchase the same. On the same day, 1st defendant received Rs. 15,000/- as advance out of the sale consideration of Rs. 65,000/- and the 1st and 2nd defendants affixed their signature in the presence of witnesses to the agreement. Subsequent to the said agreement, on 14.8.1998 both the defendants have received a sum of Rs. 27,900/- and also an endorsement was made to that effect.

According to the plaintiff, defendants postponed the execution of the sale deed for one or the other reason and on the request of the defendant, plaintiff paid the remaining amount of Rs. 22,100/-. Further, since the defendant assured executing the sale deed, he did not obtain any acknowledgment. On inquiry, he came to know that no allotment of house is made in favour of the defendants. Stating that defendants have played fraud and collected the money by false representation, he got issued a notice for return of the amount and also after issuing notice, panchayath was convened and in that, defendant had agreed to pay the entire amount with interest. However, in spite of promising before the panchayath, defendants did not pay the amount. Hence, the suit.

The stand of the defendants is, they have agreed to sell the house property to the plaintiff and also received Rs. 15,000/-. While denying the other contentions of the plaintiff, it is stated, plaintiff himself has played fraud by suppressing the material facts and on the other hand, it is contended as a matter of fact, the house allotted to the 1st defendant has been surrendered to the Housing Board and the same has been allotted to the wife of the plaintiff on the request of the defendants and also the loan has been cleared by the defendants. The plaintiff''s wife is an allottee of the house property. It is contended, in order to make unlawful gain, plaintiff has concocted a cock and bull story.

Based on the pleadings, trial court raised the following issues for consideration:

* Does plaintiff prove that defendants have taken advance sale consideration amount of Rs. 65,000/-;

* Whether plaintiff is entitled for interest at the rate of 24% p.a.;

* Whether suit is barred by time; and

* What order or decree.

While answering the relevant issues in favour of the plaintiff in the affirmative, the trial court has decreed the suit. Hence, this appeal.

Heard the counsel for the appellant.

The points that arise for consideration are - whether the trial court is justified in holding that the plaintiff has proved that defendants have taken the advance of Rs. 65,000/- and is entitled for interest on the amount at 12.5% and whether the trial court is justified in decreeing the suit of the plaintiff.

In para 15 of the judgment, the trial court has noticed that in the notice issued by the plaintiff, it is stated an amount of Rs. 22,100/- was given to the defendants in the presence of one Jagadish and another witness. Thus, observing that before prosecuting the suit plaintiff has informed the defendants about payment and defendants did not deny having received the amount of Rs. 22,100/-, it has opined that the silence of the defendants shows that they have received the amount.

It transpires, as per the defendants'' case, the 1st defendant had originally enrolled with the Karnataka Housing Board for allotment. The 1st defendant had also been allotted a house in No. 60, MIG II as per the allotment letter of the Housing Board. The reasoning of the trial court is, defendants have not produced any iota of evidence to show that they have surrendered the house allotted to them. Apart from that, no documents are produced to show that they have been allotted any house at any point of time by the Housing Board. This observation of the trial court is without looking into the documents and evidence available with the defendants and also without considering their stand.

The appellants'' counsel produced the allotment letters in favour of the 1st defendant and subsequent allotment in favour of the plaintiff''s wife. As such, the approach of the trial court that the amount is being paid in the usual course as a monetary transaction and there was no assignment of site in favour of the plaintiff by the 1st defendant, cannot be accepted. More over, certain documents which are on record do depict that agreement was entered into between plaintiff and defendants to transfer the very house allotted to the 1st defendant in favour of the plaintiff. Thereafter, there are also records which reflect, at the instance of 1st defendant, allotment made in her favour was conveyed to the plaintiff and that appears to be in the form of assignment. It also appears, some amount was received by the defendants from the plaintiff and in respect of one such payment for Rs. 15,000/-, there is an admission and for the remaining amount, there is no evidence except the oral evidence of the plaintiff. The trial court has not taken note of this fact in the proper perspective and has hastily decreed the suit granting exorbitant interest.

Since the records are not properly looked into in the circumstances and background of the case, impugned order is set aside. Matter is remanded to the trial court for disposal of the same, according to law after affording opportunity to the appellants to have their say in the matter. All contentions are left open. Amount in deposit be returned to the appellants. Refund the court fee to the appellant. Appeal is allowed.