Madhya Pradesh High Court
Sushila Devi And Ors. vs Kachrabai And Ors. on 10 September, 1987
Equivalent citations: 1994(0)MPLJ362
JUDGMENT S.K. Seth, J.
1. The plaintiff filed the present suit for specific performance of a contract of sale against the defendants on 11-12-1978. It was alleged by him that vide Ikrarnama dated 3-12-1977 the defendant No. 1 had agreed to sell the suit plot together with the house standing thereon to him for a consideration of Rs. 5,000/-. It was further alleged by him that he had paid Rs. 4,000/- to the defendant No. 1 on the same day and that it had been agreed between them that he would pay the balance amount of Rs. 1,000/- to the defendant No. 1 before the Sub-Registrar within a period of three months. According to him, thereafter, he repeatedly requested the defendant No. 1 to execute the sale deed and accept the balance amount of Rs. 1,000/- from him but the defendant No. 1 evaded the issue and did not comply with the request. It was in the said circumstances that after giving a registered notice to the defendant No. 1 through his lawyer on 14-6-1978 that he was required to institute the suit for specific performance of the contract of sale on 11-12-1978.
2. The defendants, in their written statement, took the plea that there had been no contract of sale between the parties as alleged by the plaintiff. According to them, as the defendant No. 1 had needed money, he had taken a loan of Rs. 3,000/- from the plaintiff. While giving the loan to the defendant No. 1, the plaintiff had taken his signature on certain document but the defendant No. 1 did not know as to what were the contents thereof. The plaintiff had assured the defendant No. 1 that his signature on the document was being taken with a view to secure repayment of loan. It was alleged by the defendants that after taking the loan of Rs. 3,000/- from the plaintiff the defendant No. 1 paid monthly interest at the rate of Rs. 150/- to him for a period of about 10-11 months. It was submitted by the defendants that the suit for specific performance instituted by the plaintiff against him was misconceived and was liable to be dismissed with costs.
3. The trial Court vide its judgment dated 5-7-1980 decreed the suit of the plaintiff and directed the defendant No. 1 to execute a sale deed in respect of the suit property in his favour within a period of one month. It further directed the defendant No. 2, the son of defendant No. 1, to deliver possession of the suit shop to the plaintiff on the date of registration of the sale deed. However, on an appeal being filed by the defendants the first appellate Court vide its judgment dated 28-8-1987 allowed the same and setting aside the decree passed by the trial Court dismissed the suit of the plaintiff. It is being aggrieved by it that the plaintiff has filed the present appeal in this Court.
4. Now, on a reappreciation of the evidence produced in the case, it was found by the first appellate Court vide its judgment dated 28-8-1981 that the plaintiff failed to establish that the Ikrarnama dated 3-12-1977 (Ex. P/1A) had constituted any real transaction of contract of sale between the parties in respect of the suit property. It was in the said view of the matter that the said Court allowed the appeal of the defendants and dismissed the suit of the plaintiff for specific performance of the contract of sale. Needless to say, the finding in question being a finding of fact, and having been properly reached, did not call for interference in this second appeal. In fact, it was for the said reason that at the time of admission of this appeal on 23-11-1981 no question of law with regard to the said aspect of the matter was framed by this Court.
5. The only question of law that arises for consideration in this appeal is whether in the facts and circumstances of the case the plaintiff was entitled to obtain a decree for recovery of Rs. 3,000/- against the defendant No. 1 which amount, as mentioned above, had been admittedly borrowed by the defendant No. 1 from the plaintiff at the time of execution of the document in question i.e. Ikrarnama dated 3-12-1977. In the opinion of this Court, there is no reason why even though the plaintiff has not specifically asked for such a relief in the plaint the same could not be granted to him by way of an equitable relief in this second appeal. It is sattled law that in proper cases, where specific performance is refused, the Court may direct the refund of the amount to the plaintiff even though he has not specifically asked for it in the plaint. It is another thing that in the present case as there was no adjudication as to how much amount still remained to be paid by the defendant No. 1 the decree, if any, in favour of the plaintiff was required to be passed to the extent of admission made by the defendant No. 1.
6. As stated above, it was admitted by the defendant No. 1 that he had taken a loan of Rs. 3,000/- from the plaintiff at the time of execution of the document in question i.e. Ikrarnama dated 3-12-1977. However, it was also stated by him that he paid an amount of Rs. 150/- per month to the plaintiff for a period of 10-11 months. Thus, the amount of repayment made by the defendant No. 1 to the plaintiff comes to Rs. 1,500/-. There was no reason why in the facts and circumstances of the case the plaintiff should be permitted to adjust the said amount towards the penal interest charged by him. After deducting the said amount of Rs. 1,500/- from the principal amount of Rs. 3,000/-, it is equitable to pass a decree for recovery of Rs. 1,500/- in favour of the plaintiff against the defendant No. 1.
7. For the reasons stated above, the appeal is partly allowed. The decree passed by the first appellate Court, dismissing the suit of the plaintiff for a decree for specific performance of contract of sale is maintained. However, a decree for recovery of Rs. 1,500/- is passed in favour of the plaintiff against the defendant No. 1 by way of equitable relief.
8. In the circumstances of the case, there shall be no order as to costs of this appeal. The costs of the Courts below shall be borne by the parties in accordance with the decree passed by the first appellate Court.