1 2025:CGHC:53697 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 55 of 2013 1 - Dr. Rajendra Banthiya S/o Panmalji Banthiya, Aged About 50 Years, R/o Raja Talab Road, Raipur, P.S. Civil Lines, Raipur, Head P.O. Raipur, Distt. Raipur C.G., Chhattisgarh (Defendant) ... Appellant versus 1 - Mukesh Badwani S/o Devanand Badwani, Aged About 30 Years, R/o Near Shiv Mandir, Gali No. 2, Fafadih Naka, Raipur, P.S. Civil Lines, Raipur, Head P.O. Raipur, Distt. Raipur C.G., Chhattisgarh (Plaintiff) ... Respondent (Cause-title taken from Case Information System) For appellant : Mr. Manoj Paranjpe, Senior Advocate with Mr. Sandeep Patel, Advocate. For Respondent : None, though served. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 03-11-2025 1. The present appeal under Section 96 of the Code of Civil Procedure, 1908 has been filed by the defendant against the impugned judgment and decree dated 14-12-2012 passed by the learned First Additional District Judge, Raipur (C.G.) in Civil Suit No.35B/2008 whereby a decree for refund of Rs.4,00,000/- along with interest at the rate of 6% per annum from the date 29-11-2008 has been passed in favour of the plaintiff. 2. The brief facts of the case as emerged from the pleadings of the parties are that, on 04-10-2005 an agreement to sale of the land of Khsara No.7724 area 0.08 hectare situated at Village Kirora, P.H. No.135, Tahsil Abhanpur, District Raipur was executed between the plaintiff and defendant for a total consideration of Rs.20,00,000/-. At the time of execution of the agreement an Digitally signed by MOHAMMED AADIL KHAN Date: 2025.12.09 18:16:16 +0530 2 amount of Rs.7,00,000/- was paid as an advance amount to the defendant. As per the pleadings made by the plaintiff that under the agreement he was ready and willing to get the sale deed registered, however the defendant had taken time repeatedly to execute the sale deed and on 16-10-2006 the defendant has informed the plaintiff that the original owner Mr. Pradeep Kumar Dani is not executing sale deed in his favour therefore, he is unable to get the sale deed registered in favour of the plaintiff. By the mutual negotiation the defendant ready to refund the amount of Rs.7,00,000/- to the plaintiff in 2-3 installments and in pursuance thereof on 16-10-2006 Rs.1,50,000/- and on 29-05-2007 Rs.1,50,000/- have been refunded to the plaintiff. When the plaintiff demanded his remaining amount, the defendant is evading to repay it, which ultimately gives cause for filing of the present suit. 3. The defendant has filed his written statement denying the liability with the pleading that the agreement dated 04-10-2005 was void ab initio as the plaintiff was well within the knowledge that the defendant was not the owner of the suit property and it was a contingent contract. The plaintiff himself was responsible for non-execution of the sale deed in his favour and he himself had revoked the contract in the month of October, 2005. The advance amount paid by him is forfeited in favour of the defendant and therefore, he is not liable to pay the claimed amount to the plaintiff. 4. Based on the pleadings of the parties the learned trial Court has framed the following issued and proceeded for trial:- “01- D;k oknh iz’uxr bZdjkjukek fnukad 04-10-05 ds lkSns isVs] izfroknh dks nh xbZ c;kuk jkf’k #- 7]00]000@& esa ls cdk;k jkf’k #- 4]00]000@& dks izfroknh ls izkIr djus dk vf/kdkjh gS \ 02- D;k oknh] mDr lkSnk isVsa nh xbZ c;kuk jkf’k #-7]00]000@& ij fn- 30-11-05 ls nkok fnukad rd 12 izfr’kr okf"kZd dh nj ls C;kt izkIr djus dk vf/kdkjh gS \ 03- D;k oknh] izfroknh ls nkfo;k jkf’k ,oa C;kt izkIr djus dk vf/kdkjh gS \ 04- lgk;rk ,oa okn O;; \” 5. After recording evidence of the parties, the learned trial Court has decided 3 the issues in favour of the plaintiff by holding that the plaintiff is entitled to refund of amount of Rs.4,00,000/- from the defendant along with interest at the rate of 6% per annum from 29-11-2008. 6. Learned Senior Counsel appearing for the appellant would submit that the plaintiff was not entitled for refund of his amount as he himself revoked the agreement and on revocation of the agreement, the advance amount is forfeited in favour of the defendant which was the condition of the agreement. He would further submit that the learned trial Court has not appreciated the evidence led by the defendant as also the admission made by the plaintiff during his evidence. He would further submit that the plaintiff is claiming his amount back on the basis of void agreement and the same cannot be decreed in his favour. As per their mutual negotiation, the defendant has already paid Rs.3,00,000/- to the plaintiff and now the plaintiff is not entitled for any further amount, yet the learned trial Court has granted a decree in his favour for refund of Rs.4,00,000/-. Therefore, the appeal may be allowed and the suit of the plaintiff may be dismissed. 7. None for the respondent though served. 8. I have heard learned counsel for the appellant and perused the record of the trial Court with utmost circumspection. 9. The claim of the plaintiff is that the defendant had agreed to sale his land of Khasra No.724, area 0.80 hectare situated at Village Khitora, Tahsil Abhanpur, District Raipur on 04-10-2005 at the rate of Rs.20,00,000/- per acre and out of total sale consideration he received Rs.7,00,000/- as an advance amount and the sale deed was to be registered upto 30-11-2005. It is also claim of the plaintiff that the defendant was under agreement with one Pradeep Kumar Dani to purchase the land from him and subsequently he agreed to sale the same land in favour of the plaintiff, however, Pradeep Kumar Dani have not executed any sale deed in favour of the defendant and thus the defendant was unable to execute the sale deed in favour of the 4 plaintiff and therefore, the parties were under settlement for refund of the advance amount in 2-3 installments. It is also the case of the plaintiff that the defendant had repaid Rs.1,50,000/- on 16-10-2006 and Rs.1,50,000/- on 29- 05-2007 and Rs.4,00,000/- is outstanding towards the advance amount paid by him along with interest upon the said advance amount paid by the plaintiff he claimed the recovery of Rs.6,00,000/- against the defendant. The defendant in his written statement though have not specifically denied the execution of any agreement on 04-10-2005, however, he pleaded that the said document dated 04-10-2005 is void ab anitio and is not executable as the defendant was not the title or possession holder of the subject land. The plaintiff himself revoked the non-executable agreement and he relinquished his claim of Rs.4,00,000- and accepted Rs.3,00,000/- from the defendant and he now being stopped by the principle of Stopple and not entitled to refund of Rs.4,00,000/-. Instead of denying the execution of agreement the defendant has stated that it was a contingent contract, non-executable and void ab initio. 10. From perusal of the agreement Ex.-P/1 it transpires that it was mentioned in the agreement itself that the defendant had agreed to purchase the suit land from its owner Pradeep Kumar Dani and the same land he agreed to sale to the plaintiff. It was also mentioned that at the time of execution of the agreement Rs.7,00,000/- was paid as advance. When the amount of Rs.1,50,000/- was returned to the plaintiff on 16-10-2005 it has specifically been mentioned in the acknowledgment that “’ks"k cdk;k jkf’k esa ls 1]50]000@& ¼,d yk[k ipkl gtkj flQZ½ uxn izkIr gqvkA” meaning thereby the plaintiff has not relinquished or waived his right of refund of the advance amount which he paid towards the said agreement Ex.-P/2. There is no reason for not endorsing about the remaining part of the amount or to execute further agreement with respect to the fact that the plaintiff was agreed to accept only Rs.3,00,000/-. Another aspect of the transaction is that it is the defendant 5 who claims that when the sale deed of the suit land would be registered in his favour by Pradeep Kumar Dani he would execute the sale deem of the suit land in favour of the plaintiff. It is in between defendant and Pradeep Kumar Dani to get the sale deed registered in favour of the defendant and the plaintiff has no role to play. When the defendant failed to get the sale deed registered in his favour from Pradeep Kumar Dani it can be said that it is the defendant who failed to perform his part of contract and the plaintiff was not at fault in the said transaction. Bonafidely he was agreed to take his amount back and in pursuance thereof he received Rs.3,00,000/- in two installments of Rs.1,50,000/- from the defendant. 11. In the matter of Tarsem Singh Vs. Sukhminder Singh, (1998) 3 SCC 471, the Hon’ble Supreme Court has considered the equitable doctrine in favour of the bonafide purchaser and held in para 37 of its judgment that:- “37. We may point out that there are many facets of this question, as for example (and there are many more examples) the agreement being void for any of the reasons set out in Section 23 and 24, in which case even the refund of the amount already paid under that agreement may not be ordered. But, as pointed out above, we are dealing only with a matter in which one party had received an advantage under an agreement which was “discovered to be void” on account of Section 20 of the Act. It is to this limited extent that we say that, on the principle contained in Section 65 of the Act, the petitioner having received Rs.77,000/- as earnest money from the respondent in pursuance of that agreement, is bound to refund the said amount to the respondent. A decree for refund of this amount was, therefore, rightly passed by the lower appellate Court.” 12. Except from self serve statement of the defendant that the plaintiff has relinquished/waived his right to recover Rs.4,00,000/- no documentary evidence has been produced by the defendant to buttress his contention. If 6 refund of the amount was acknowledged by the parties then non-execution of any acknowledgment or agreement with respect to waiver of the right to refund of Rs.4,00,000/- cannot be accepted, particularly when the plaintiff is not at any fault in non-execution of the sale deed in his favour. The defendant in para 16 of his cross-examination has stated that since he suffered loss due to non-execution of sale deed and therefore, after deduction of his loss he refund the amount of Rs.3,00,000/- to the plaintiff. He has not stated that the plaintiff has relinquished/waived the refund of Rs.4,00,000/- which was paid towards the sale agreement. Para 16 of the cross-examination of the defendant (DW-1) is necessary to note here which reads as under:- “16@ ;g dguk lgh gS fd eSaus oknh eqds’k dks rhu yk[k #i;s fn;k FkkA xokg Lor% dgrk gS fd eSus rhu yk[k #i;s vius fe=ksa ,oa ejhtksa ds le>kus ls okil fd;k FkkA esjk nkuh dk lkSnk Mwc tkus ls pkj yk[k #i;s dk uqdlku dkVdj rhu yk[k #i;s oknh eqds’k dks fn;k FkkA pwafd eqds’k cM+okuh le; lhek esa jftLVªh ugha djok ik;k vkSj iznhi nkuh dks esjk fn;k c;kuk Mwc x;k] blhfy;s viuk ewy/ku tks nkuh ls ysuk Fkk] og dkVdj ckdh iSlk oknh dks okil fd;kA” 13. Further, when there is forfeiture clause in the agreement that if the plaintiff failed to perform his part of the contract the advance amount would be forfeited in favour of the defendant. As per the contention of the defendant that the plaintiff has failed to perform his part of the contract, then there would be no question of refund of Rs.3,00,000/-, however, the defendant has refunded Rs.3,00,000/- to the plaintiff and therefore, the forfeiture clause has already been waived by the defendant himself which amounts that there is no forfeiture clause in the agreement. He further stated in para 22 of his cross- examination that:- “22@ --------------;g dguk lgh gS fd oknh }kjk 4 yk[k NksM+us ds laca/k esa dksbZ fy[kk i<+h ugh gqbZ gSA-------------- further ---------- ;g dguk lgh gS fd oknh us eq>s ;g ugha dgk gS fd og 3 yk[k #i;s esa larq"V gks pqdk gSA” 7 14. DW-2 Dilip Kumar Thakkar has stated in para 13 of his cross-examination that “lgh gS fd tks bdjkjukek gqvk Fkk mlds vuqlkj oknh us 7 yk[k #i;s izfroknh dks fn;k FkkA lgh gS fd izfroknh us mDr jkf'k ls 3 yk[k #i;s oknh dks okil fd;k rFkk 'ks"k 4 yk[k #i;s cpk gSA xokg Lor% dgrk gS fd iath;u dh rkjh[k fudyus ds ckn oknh iwjk xzqi ysdj izfroknh ds ikl vk;k vkSj iSlk ekaxk rks izfroknh us 3 yk[k okil fd;k vkSj dgk fd izfroknh dk 4 yk[k lkSns esa Mwc x;k ;fn nkuh 4 yk[k #i;s okil djsxk rHkh okil fd;k tk,xkA”. Further, “;g dguk lgh gS fd oknh us dHkh Hkh izfroknh dks ;g ugha cksyk fd mlus 4 yk[k #i;s NksM+ fn;kA”. 15. From these evidences of the defendant it is quite vivid that the plaintiff had never relinquished/waived Rs.4,00,000/- which was paid by him towards sale agreement dated 04-10-2005. 16. All that is to say that the plaintiff had never relinquished/waived his claim of Rs.4,00,000/- for which he is claiming for its refund. He serve the legal notice to the defendant Ex.-P/2 and then the civil suit has been filed. The learned trial Court after considering the entire evidence laid down by the respective parties and agreement executed between them, acknowledgment of the refund of Rs.3,00,000/- in two installments of Rs.1,50,000/- each came into conclusion that the plaintiff under the equitable doctrine is entitled for refund of Rs.4,00,000/- and passed the decree for the same in favour of the plaintiff along with interest at the rate of 6% per annum from the date of filing of the suit, i.e., 29-11-2008 till its realization. This Court does not find any perversity or illegality in the consideration of the learned trial Court in the impugned judgment and decree. 17. Accordingly, the first appeal filed by the appellant fails and is hereby dismissed. 18. Parties to bear their own cost(s). 19. Appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge Aadil