http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: TEJRAM

       Vs.

RESPONDENT: PATIRAMBHAU

DATE OF JUDGMENT:       03/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the Division Bench of the Bombay High Court, made on July 30,1985 in First Appeal No. 46/1979.      The admitted  facts are  that the  appellant had  22.38 acres of land in Village Gondia. A document purporting to be an agreement  of sale was executed on April 20,1972 for sale of 11.76  acres out  of the said land for a consideration of Rs.50,000/-. The  recital therein  and an endorsement on the foot of  it is  to the  effect that a sum of Rs.48,000/- was received as  consideration of  sale of  the said  lands  and balance of  Rs.2,000/- was  required to  be paid  within one year and  sale deed  was required  to be  executed  thereon. Since the  sale deed was not executed within one month prior to the  date  of the expiry of 3 years’ period from the date of agreement  on March  13, 1975,  the respondent got issued the suit  notice calling  upon the  appellant to execute the sale deed. On failure thereof, he filed the suit on the last day of  the limitation.  The trial court dismissed the suit. But on appeal, the High Court, while rejecting the relief of specific  performance,   directed  payment   of  a   sum  of Rs.62,280/- inclusive  of the  principle sum of Rs. 48,000/- interest accrued thereon and cost plus 6% future interest on the principal  amount of  Rs.48,000/-. Thus,  this appeal by special leave.      The  contention   raised  by  Shri  Deshpande,  learned counsel for  the appellant,  is that  the High Court and the trial   Court   concurrently   disbelieved   the   agreement purporting to  be for  alienation of  the land  but was,  in fact, in  truth and  in reality  a money transaction. Having come to  that conclusion  , the High Court would have agreed that the  amount payable towards interest on the unpaid loan taken by the appellant from the respondent . On the admitted finding that  the respondent.  On the  admitted finding that the respondent  was money-lender,  it would be unlikely that he had  paid Rs.48,000/-  as  cash  consideration  for  that agreement; and  would not have kept quite without asking for the delivery  of the  possession and then without paying Rs. 2,000/- for  3 years  and filing  the suit on the last date. Under these  circumstances, necessary  conclusion  would  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

that the  purported endorsement was not, in fact, receipt of the amount  but dues  owed to  him. Shri  Uday Umesh  Lalit, learned counsel  for the  respondent,  on  the  other  hand, contends that  in view  of  the  fact  that  the  respondent executed endorsement  as consideration  of  Rs.48,000/-  was paid as  a fact is a finding of fact, Therefore, it needs no interference.      Having regard  to respective  contentions, the question that arises for consideration is; whether the respondent has paid  Rs.48,000/-   as  cash   consideration  towards   sale transaction? It  is seen  that document  purporting to be an agreement of  sale was  not ,  in  fact,  in  truth  and  in reality, not  an agreement of sale, witness No.2, the scribe of the  agreement admitted  in the examination-in-chief that he  had   executed  several  similar  documents.  All  those documents i.e., 10 out of 8, relate to specific performance; all of them are of those who took loan from the respondents. It is  an admitted position that the respondent is  a money- lender. Under  these circumstances,  the document purporting to be  an agreement for sale is in fact not an agreement for sale; it is towards the unpaid interest on the loan taken by the respondent.  It is  seen  that  the  High  Court    also accepted that  the appellant  had taken a loan in 1965 for a sum of  Rs.1500/- and  repaid Rs.3500/-. Shri Deshpande says that the  sum of  Rs. 15,000/-  is not factually correct; it is actually  only Rs.1,500/-. If it is true sale transaction and the  respondent being a businessman and having purported to have  paid Rs.48,000/-,  one would  expect that  he would seek possession  or he  would pay  the balance consideration and request for execution of the sale deed. Instead, he kept quite for  full 3  years. be that as it may, it would appear that there  was money  transaction between the appellant and the respondent  and the  respondent, being money-lender, was taking documents,  purporting to  be an  agreement of  sale, from the loanees. In the event of the loanees failure to pay the loan  amount along  with interest stipulated by him, the documents would,  obviously, be  executed, with  a  view  to enforce the  repayment of loan and interest accrued thereon. it is  unlikely that  being a money-lender and having parted with Rs.48,000/-  as cash,  he would  have kept quite either for  seeking  possession  of  the  property  or  payment  of Rs.2,000/-   immediately    and   then    sought    specific performances;  it   would  be   unlikely   in   the   normal circumstances that  he would  have waited  for 3  years  for issuing notice  and then filing suit on the last date. Under these circumstances,  the Courts  below rightly  came to the conclusion that  it is not an agreement for sale or purports to be  a sale  in truth  and in  reality, but in view of the admission made  by the respondent by way of endorsement that he had  received Rs.48,000/-  and  in  the  absence  of  any specific circumstances  and in  view of the doubtful conduct of both  the parties, it is not possible for us to reach any satisfactory conclusion  on the basis of evidence as to what a was  the amount  actually due  to paid by the appellant to the respondent and what amount is still payable. Under these circumstances, we  are of  the considered view that the ends of justice  would be  met if  the conclusion  reached by the High Court  that a  sum  of  Rs.48,000/-  was  paid  by  the respondent  to   the  appellant,   is  confirmed.   However, respondent is  not entitled  to payment  of any  interest or cost,  as   ordered  by   the  High   Court.   Under   these circumstances, the  order of  the Division Bench of the High Court for  payment of  Rs.65,280/- is  set  aside.  Instead, there will  be a decree for a sum of Rs.48,000/- in lump-sum without any interest.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    The appeal  is, accordingly,  allowed with  the   above modification. No costs.