Satish Chand Surana vs Raj Kumar Meshram 13 Crmp/377/2014 ... on 20 June, 2019

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Chattisgarh High Court

Satish Chand Surana vs Raj Kumar Meshram 13 Crmp/377/2014 ... on 20 June, 2019

1. Trail Court has dismissed the appellant/plaintiff's suit for specific performance of agreement dated 20-7-2013 by which the respondent/defendant had allegedly agreed to sell land bearing khasra No.395 & 396/1 area 0.59 & 0.05 hectares, respectively in total 0.64 hectares situated at village Jagtara, Patwari Halka No.22, Balod, for a sum of Rs.11.00 lacs.

2. According to the plaintiff, the defendant accepted advance amount of Rs.8.00 lacs by cheque on the date of agreement itself and thereafter, received further amount of Rs.2.00 lacs on 26-8-2015 at the same time executing a fresh agreement on the said date. It was further stated that the defendant agreed to execute the sale deed by accepting the remaining part of the sale consideration, but on the pretext of personal difficulties he has not executed the sale deed for further period of 13 months from the date of second agreement and later stopped attending plaintiff's phone calls, therefore, the plaintiff severed legal notice on 15-10-2016, which remained unserved with Postal endorsement that ' the defendant has left the place'. The suit was filed on 17-3-2017 in the District Court, Durg, which was made over to the 7 th Additional District Judge, Durg.

3. The defendant was proceeded ex parte, therefore, plaintiff's ex parte evidence was recorded and final hearing also 3 FA No.433 of 2018 materialized, but on 10-7-2017 it was found that the suit property is situated at village Jagtara, District Balod, therefore, the plaint was returned for submission before the jurisdictional Civil Court.

4. On the basis of evidence on record trial Court found that execution of agreement and receipt of Rs.11.00 lacs is not proved neither the plaintiff's readiness and willingness is proved, therefore, the suit deserves to be dismissed.

5. Learned counsel appearing for the appellant/plaintiff would argue that the defendant, having received an amount of Rs.8.00 lacs by cheque and having not entered the witness box to contest the suit, the trial Court has committed serious error of law and fact by dismissing the suit. Learned counsel would further argue that the trial Court erred in not relying on the statement of PW-2 Radheshyam Meshram, who happens to be the real brother of the defendant.

6. In this appeal also, the respondent/defendant has not appeared, despite service of notice, therefore, we have heard learned counsel appearing for the appellant/plaintiff and perused the trail Court's record meticulously.

7. The first agreement was executed on 20-7-2013, however, the said agreement has not been exhibited. The second agreement dated 26-8-2015 refers to the first agreement 4 FA No.433 of 2018 also. In this agreement the address of defendant Raj Kumar Meshram is mentioned as "House No.159, Opp. Kamla College, Shristhi Colony, Rajnandgaon. Present Address :

Behind Likhin General Store, Panchsheel Nagar, Ward No.1, Durg." The same address is mentioned in the legal notice (Ex.P/10), however, in the plaint three addresses have been mentioned. The first & second addresses being the same as mentioned in the agreement, but the third address is mentioned as "C/o Radhey Shyam Meshram, S/o Munna Ram Meshram, Behind Gayatri Mandir, Near Minimata Square, Pulgaon, Durg." These three addresses are also mentioned in the present memo of appeal.

8. Service report available in the record of the trial Court indicates that the notice on first two addresses remained unserved and the third notice on the address mentioned as "C/o Radhey Shyam Meshram" has been accepted by Radhey Shyam Meshram, who happens to be the plaintiff's witness No.2. At a matter of fact at the first attempt the notice on third address has been received by one Durgesh Meshram, which was not treated to be proper service because there was no material as to the relationship between the defendant Raj Kumar Meshram & Durgesh Meshram. The same happened during another attempt to serve notice, as on this occasion one Triveni accepted the 5 FA No.433 of 2018 notice on third address. In yet another attempt the notice was accepted by one Neelam Kashyap. Thereafter, the notice was served through publication in daily newspaper Deshbandhu.

9. It appears the trial Court allowed the said application for substituted service without asking the plaintiff to ascertain the correct address of the defendant. It is not a case where the plaintiff has produced any proof like copy of voter list, Ration Card, etc. to substantiate the address of the defendant's residence and thereafter to say that the said address was his last known address.

10. Reverting to the merits of the matter the trial Court has observed that there is no proof that the first cheque issued in the name of the defendant Raj Kumar Meshram has been honoured by making payment in his Bank account.

11. In our considered opinion the trial Court has rightly recorded this finding because a sum of Rs.8.00 lacs cannot be paid in cash, therefore, if the same was deposited in the Bank account of Raj Kumar Meshram or even if it was paid by the Bank in some other mode, the plaintiff should have filed the proof of payment of amount of Rs.8.00 lacs. Mere submission of cheque in the name of the defendant is not sufficient proof of the payment. The other amount of 6 FA No.433 of 2018 Rs.2.00 lacs has been paid in cash for which Radhe Shyam Meshram (PW-2) has made statement in plaintiff's favour, however, Radhe Shyam seems to be an interested party, as he is the signatory to the agreement also. The possibility that Radhe Shyam and defendant Raj Kumar may not be pulling on well or Raj Kumar has left the place leaving the land at the disposal of his brother Radhe Shyam cannot be ruled out, therefore, the entire transaction with active involvement of Radhe Shyam has been carried on, which does not inspire confidence for decreeing the suit in an ex parte proceeding.

12. It is also to be seen that the first agreement was allegedly entered on 20-7-2013, but the parties kept quiet for more than two years when, according to the plaintiff, the defendant was paid another sum of Rs.2.00 lacs on 26-8- 2015 and a fresh agreement was executed between them. Again nothing happened for a period of 13 months before the legal notice was sent on 15-10-2016. Due to this long lapse of time during regular intervals the trial Court has rightly concluded that even otherwise the plaintiff does not seem to be ready and willing to perform his part of contract.

13. Considering the issue from another angle, if an amount of Rs.10.00 lacs was paid by the plaintiff to the defendant by the time of execution of second agreement on 26-8-2015 it 7 FA No.433 of 2018 is strange as to why the sale deed itself was not executed because only an amount of Rs.1.00 lac was remaining to be paid.

14. For all the above-stated reasons, we are satisfied that the trial Court has not committed any illegality in dismissing the plaintiff's suit for specific performance of agreement.

15. As a sequel, the instant first appeal, sans merit, is liable to be and is hereby dismissed.

                 Sd/-                                     Sd/-


        (Prashant Kumar Mishra)                 (Vimla Singh Kapoor)
               Judge                                    Judge

Gowri

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Chattisgarh High Court