Heard Sri Ojha, learned counsel for the defendant-appellant and Sri A.N. Roy, learned counsel for the plaintiff-respondent.
The plaintiff instituted a suit for specific performance of an agreement to sell dated 19.05.93. The suit on contest was decreed for the alternative relief for refund of earnest money of Rs.73,000/- with 8% interest but the relief for specific performance was denied. The appeal of the defendant-appellant was also dismissed. Not being satisfied, the defendant-appellant has preferred this second appeal and has contended that even the decree of refund of Rs.73,000/- is bad in law.
Learned counsel for the appellant has argued that the defendant has not executed any agreement nor has received any sale consideration and as such there is no question of refund of Rs.73,000/- as decreed by the courts below.
The courts below have recorded concurrent findings of fact that the agreement was proved to be duly executed and that the defendant-appellant received a sum of Rs.73,000/- as part of the sale consideration. The agreement is a registered agreement and the defendant-appellant before the Sub-Registrar accepted having received a sum of Rs.73,000/- and the said statement appearing in the agreement was proved by the oral evidence of PW1, PW2 and PW3.
It is also not disputed that the agreement bears the photograph and signature of the defendant-appellant. The said agreement has been attested by the two witnesses Harihar Chaubey and Jai Prakash. It is also signed by the deed righter Deenanath. It has been proved by the statement of PW2 Jai Prakash and the deed righter PW3 Deenanath.
In view of the aforesaid, the findings recorded by the courts below that the agreement was duly proved to be executed and that the defendant had received a sum of Rs.73,000/- as part of the sale consideration are in no way said to be perverse.
Learned counsel for the defendant-appellant lastly contended that the relief of refund Rs.73,000/- could not have been granted to the plaintiff-respondent as no such relief was claimed.
The courts below have recorded that the alternative relief was claimed by the plaintiff-respondent in paragraph 10 of the plaint. I have also perused paragraph 10 of the plaint and find that the plaintiff-respondent has clearly stated that in case it is not possible to grant the decree of specific performance in such a situation relief for the refund of Rs.73,000/- with 18% be give to him.
In view of the above, the aforesaid submission also has no force and stands rejected.
In the totality of circumstances, I find no merits in the appeal and in my opinion no substantial question of law is involved. Accordingly the appeal is dismissed with no order as to costs.
In the end learned counsel for the defendant-appellant prayed that three months time be allowed to refund the amount which has been decreed. Counsel for the respondent has no objection if some reasonable time is allowed so that the ordeal of going through the execution proceeding may be saved.
In view of the above defendant-appellant is permitted to make the payment of the amount decreed to the plaintiff-respondent within a period of two months from today provided he furnishes an undertaking on affidavit before the executing court in the pending execution within a period of two weeks from today Order Date :- 7.10.2010 piyush