Guljinder Singh vs Hari Singh

S.S. Sudhalkar, J.—Respondent had filed a suit against the appellant for recovery of Rs. 92,4000/- including interest till the date of filing of the suit. According to the case of the respondent, appellant represented to him that he is owner of certain lands in village Shahpur. Tehsil and District Ludhiana and that the respondent agreed to purchase the land measuring 31K-12M out of the lands for a sum of Rs. 60,000/-. It is alleged that whole of the sale amount was given to the appellant and the appellant agreed to execute the sale deed in favour of the respondent within a period of one month. However, after the agreement, appellant did not execute the sale deed. Subsequently, respondent came to know that one Nasib Kaur against whom the appellant had obtained a decree, had challenged the same in the Court. It is further alleged that the appellant also disclosed that one Harchand Singh claimed to have entered into agreement to sell with Nasib Kaur on 28.5.1982 and Harchand. Singh filed a suit for specific performance against Nasib Kaur and the same is pending. It is further alleged that the appellant failed to execute the sale deed. Thereafter, suit for recovery of Rs. 92,400/- as earnest money was filed by the respondent.

The suit was decreed. Appeal filed by the appellant against the said decree before the lower Appellate court was dismissed and hence this second Appeal.

I have heard the learned counsel for the parties, learned counsel for the appellant has argued that the suit is beyond limitation because the agreement to sell is dated 7.6.1982 and according to the counsel for the appellant, the suit was filed on 18.12.1986. Counsel for the respondent has pointed out to me that the date of filing of the suit mentioned by the counsel for the appellant is not correct and the same is dated 4.6.1985. On verifying the record of the trial Court, it is clear that the suit was filed on 4.6.1985 as per endorsement of the office. When the suit was filed on 4.6.1985, it cannot be said to be beyond limitation. Therefore, this argument of the learned counsel for the appellant cannot be accepted.

The next argument advanced by the counsel for the appellant is that without the possession being delivered to the appellant, the respondent could not claim the refund of the amount of agreed consideration. He has referred to Ex.P1. It is the agreement to sell. It is mentioned in it that the possession of the land has been delivered at the spot.

Counsel for the respondent argued that possession was never given though it was so written in the agreement to sell. He has read over to me the written statement of the appellant. In the written statement, a preliminary objection was taken that possession of the property was never handed over to the plaintiff (respondent) and the property is still in the possession of the appellant and that the suit has been filed for mala fide reasons. In the plaint, there is a statement regarding possession and it is mentioned that possession of the land was also written to have been given to the plaintiff (respondent). In the typed copy of the plaint, the words "written to have been" added by hand. However, it is not the case of the appellant that these words have been added subsequent to the filing of the plaint.

Therefore, in the plaint also, there is no assertion that the possession was given to the respondent and the appellant has categorically stated that the possession was never given by him to the respondent.

This being the position, the appellant has fortified by his pleadings in the written statement and, therefore, cannot now raise a plea that respondent should give possession to him before claiming the suit amount.

So far the allegations regarding document of agreement to sell being forged, the point was given up before the lower Appellate Court and during the arguments of this appeal also, this point is not argued.

The next contention raised by the appellant is regarding the interest. According to the appellant, the interest could not have been awarded to the respondent. According to him, there is no contract regarding interest in Ex.P-1. The trial Court has held that respondent was entitled to at least the interest at the prevailing market rate of interest and the bank rate of interest which was not less than 18% per annum in any case and it also held that respondent was entitled to charge interest at that rate and calculated the amount of interest at the said rate. The trial Court allowed Rs. 32,400/- as interest from 7.6.1992 till the date of filing of suit. The trial Court also allowed future interest at the rate of 18% per annum.

The lower Appellate court allowed the interest at the rate of 12% per annum from the date of agreement till the date of filing of the suit and further interest at the rate of 6% per annum from the date of suit till recovery of the amount on the principal amount of Rs. 60,000/-.

Allowing the interest from the date of the suit till the date of realisation is in conformity with section 34 of the Code of Civil Procedure.

So far as the interest prior to the date of the suit is concerned, the learned counsel for the appellant has stated that there is no provision in any law regarding interest which can be allowed on the suit amount. However, Section 3 of the Interest Act, 1978 (in short Act) provides that in any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest. The question is whether the amount in the'' present suit can be treated as a debt. The word "debt" is defined in Section 2(c) of the Act. It reads as under :-

"S.2(c) "debt" means any liability for an ascertained sum of money and includes a debt payable in kind, but does not include a judgment debt;"

In the present case, the amount is ascertained amount. Moreover, the amount was taken by the appellant knowing fully well that he could not execute the sale? The amount was not a gift made to the appellant and in the circumstances of the case, the appellant was bound to return the amount wrongly taken. It can, therefore, be treated as a debt in this case. This being so, the interest can be awarded in this case and the lower Appellate Court has been reasonable in awarding the interest at the rate of 12% per annum. There appears to be nothing wrong with the judgment.

In view of the above reasons, this appeal deserves to be dismissed and is hereby dismissed.