(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As both the appeals are directed against the common judgement and decree passed by the lower Court, they are being considered simultaneously.
2. The short facts are that the suit was filed by respondents No.1 to 3 for the specific performance of the contract alleging that the appellant Bank had agreed to sell the suit property for the consideration of Rs.35 lac and further as a part of the contract, an amount of Rs.3,50,000/- being 10% as earnest money was accepted and thereafter, as the contract was not performed the suit was filed. The defendant in the said suit and more particularly the appellant Bank, who was defendant No.1 mainly resisted the suit on the ground that there was no concluded contract entered into between both the sides and it was also submitted that the amount of Rs.3.50 lac was kept in lien account and not accepted as earnest money and, therefore, it was prayed for dismissal of the suit. The evidence was led by the parties to the suit and thereafter the learned Judge has passed the judgement and decree. Under these circumstances, the original defendant No.1 has preferred Appeal being First Appeal No.2894 of 2008, whereas the original defendant No.4 has also preferred appeal, challenging the very judgement and decree of the trial Court.
3. We have heard Mr.Parikh as well as Mr.Pravin Panchal for Mr.P.K. Jani for the appellants in both the appeals and Mr.S.M. Shah for the respondent in both the appeals. We have considered the judgement of the lower Court and R & P.
4. It appears from the perusal of the judgement that by paragraph in slipshod manner, without considering the evidence available on record, the learned Judge has allowed the suit and passed the decree. The reasons, if any, to be described are only at paragraph 11, running into about 6 to 7 lines only. It is hardly required to be stated that when the suit is tried before the Court and the evidence is led by the parties, it is required for the Court to consider the evidence, if not, very elaborately, but with the relevancy to the extent touching to the issues and leading the Court to record conclusion upon the issues. It was a suit for specific performance of the contract and, therefore, whether there was concluded contract or not and if yes, on what basis the contract had concluded and whether thee was any readiness and willingness to perform the contract or not and whether the proceedings before the Debts Recovery Tribunal would be required to be considered, in any manner, before passing the judgement and decree for specific performance of the contract etc., were required to be taken into consideration after dealing with the evidence led on behalf of both the sides.
5. It appears to us that no reasons have been recorded dealing with the evidence, leading the Court to record the conclusion on the issues framed by the Court. We are not at all satisfied with the manner in which the judgement is delivered by the Court by short-circuiting the exercise of considering the evidence and dealing with various issues, which otherwise were required to be decided after consideration of the evidence.
6. Under these circumstances, we find that the judgement and decree passed by the lower Court cannot be sustained in the eye of law and hence, deserves to be quashed and set aside, but with the direction to the lower Court to decide the same after giving opportunity of hearing to both the sides.
7. Hence, the impugned judgement and decree is quashed and set aside with the direction that the suit being Special Civil Suit No.112 of 2006 shall stand restored to the file of the learned Sr. Civil Judge, Bhuj-Kutch and the learned Civil Judge shall give opportunity of hearing to both the sides and thereafter shall pass a fresh judgement and decree in accordance with law, preferably within a period of six months from the date of receipt of the order of this Court. It is also observed that the amount, which has been deposited pending the appeal by the appellant of First Appeal No.2894 of 2008, which is invested by this Court in FDR shall be transferred with the accrued interest to the lower Court. The lower Court shall invest the said amount in FDRs with a nationalized Bank, subject to the final judgement and order, which may be passed at a later stage. The original FDR shall be kept with the Nazir Department of the lower Court concerned. It will be open to the lower Court to consider the aspect of refund and/or appropriation of the amount in accordance with law at the time when the final judgement and decree is passed afresh as directed herein above.
8. The appeals are allowed to the aforesaid extent.
Considering the facts and circumstances, thee shall be no order as to costs. R & P be returned to the lower Court.
(Jayant Patel, J.) (C. L. Soni, J.) vinod