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2004 DIGILAW 1274 (RAJ)

Ganpat Singh v. Chand Mal

2004-09-06

A.C.GOYAL

body2004
Honble GOYAL, J.–This is an appeal by the defendant Ganpat Singh against the judgment and decree of Additional District Judge No. 3, Ajmer dated 26.7.2003 passing a decree for specific performance of an agreement to sell the suit house in plaintiffs favour. (2). The plaintiffs (father and son) filed a civil suit for specific performance on 8.12.2000 with the averments that the defendant entered into an agreement with the plaintiffs to sell western portion of the house AMC No. 338/5 situated at Lakhan Kotari, Ajmer for a sum of Rs. 8,00,000/-. In pursuance of the said agreement the defendant received Rs. 3,50,000/- from the plaintiffs as part payment of the sale price and executed an agreement (Ex.1) on 13.12.1998. It was agreed upon between the parties that the balance of the sale price shall be paid at the time of the registration of the sale deed. The plaintiffs were always ready and willing to perform their part of the contract but the defendant continued to extend the time of executing the sale deed but did not execute the same inspite of notices dated 5.10.2000 and 25.10.2000 which were served upon the defendant. (3). In his written statement, the defendant admitted having signed the agreement dated 13.12.1998 and also admitted receipt of Rs. 3,50,000/- from the plaintiffs. He, however, pleaded that he did not agree to sell the disputed property for a consideration of Rs. 8,00,000/- and the amount of Rs. 3,50,000/- was taken as loan from the plaintiffs. He was in need of money, hence he signed the document under pressure of the plaintiffs. He paid the interest @ 3% per month to the plaintiffs. (4). The plaintiffs vide their rejoinder denied the new facts pleaded in the written statement. (5). On the basis of the pleadings of the parties, issues were framed. Evidence was recorded. The learned Additional District Judge No. 3, Ajmer vide impugned judgment dated 26.7.2003 on consideration of the evidence led by the parties found that the defendant executed the agreement of sale which is Ex.1 and received Rs. (5). On the basis of the pleadings of the parties, issues were framed. Evidence was recorded. The learned Additional District Judge No. 3, Ajmer vide impugned judgment dated 26.7.2003 on consideration of the evidence led by the parties found that the defendant executed the agreement of sale which is Ex.1 and received Rs. 3,50,000/- as part payment of the sale price; that the defendant failed to prove that this amount was advanced by the plaintiffs as loan; that the defendant failed to prove that he paid any interest to the plaintiffs; that the plaintiffs were ready and willing to perform their part of the contract and thus passed a decree of specific performance as prayed by the plaintiffs. (6). I have heard learned counsel for the parties. On account of the submissions of Mr. J.P. Goyal learned counsel for the defendant-appellant following points are framed for determination :- (i) Whether the agreement Ex.1 was executed as a security to repay the loan advanced by the plaintiffs-respondents ? (ii) Whether the decree of specific performance being discretionary in nature, the Trial Court should not have passed the decree of specific performance in this case ? (iii) Whether the defendant-appellant was not the sole owner, hence he has no right to execute the agreement Ex. 1 ? (7). First Point :- Mr. Goyal contended that there was no question to execute the agreement of sale as the defendant- appellant was not the sole owner. It was also contended that the Trial Court did not consider the evidence in a proper manner and there was no reason not to rely upon the evidence of the defendant. Mr. Karnani learned counsel for the plaintiffs supported the decision of the Trial Court. (8). In paras 3 and 4 of the written statement the defendant admitted the receipt of Rs. 3,50,000/- with a plea that this amount was advanced to him as loan and he has been paying the interest @ 3% per month. According to the statement of the plaintiff Chand Mal-P.W.1 the defendant agreed to sell his house for a sum of Rs. 8,00,000/- and executed the agreement Ex.1 and received a sum of Rs. 3,50,000/-. This amount as per para 8 of the plaint was paid vide two cheques-one for Rs. 2,00,000/- and other for Rs. 1,50,000/-. These facts were not denied by the defendant in his written statement. 8,00,000/- and executed the agreement Ex.1 and received a sum of Rs. 3,50,000/-. This amount as per para 8 of the plaint was paid vide two cheques-one for Rs. 2,00,000/- and other for Rs. 1,50,000/-. These facts were not denied by the defendant in his written statement. P.W.1 Chand Mal denied any payment of amount as interest by the defendant. He, in cross- examination denied that this amount was paid to the defendant as loan. He denied that any amount of interest was paid to him by the defendant in presence of Om Prakash and Chotu Lal P.W. 2 Chotu Lal and P.W.3 Om Prakash supported the oral testimony of the plaintiff. According to the statement of the defendant Ganpat Singh he delivered gold ornaments worth Rs. 30,000/- to the plaintiffs against the amount of interest on 23.6.1999, then he paid Rs. 84,000/- on 23.8.1999 and a sum of Rs. 63,000/- on 23.4.2000 as interest. In cross-examination, he stated that the facts of these three payment were disclosed by him to his counsel but he is unable to explain as to why these facts were omitted in the written statement. He further admitted three entries dated 23.6.1999, 23.8.1999 and 23.4.2000 on the back of the agreement Ex.1. He admitted that time of the agreement was extended by him vide these three writings. D.W.2 Kailash Sharma supported the oral testimony of the defendant. In cross-examination, he admitted that he is the tenant of the defendant. He further admitted that Ex.1 agreement was got prepared by the defendant himself and this agreement was signed in the presence of the defendant Ganpat Singh, plaintiff Chand Mal and one witness Chotu Lal. (9). Upon a careful study of the agreement Ex.1, three entries on the back of this document extending time of the agreement from time to time and oral testimony, I find no reason to interfere with the findings of the Trial Court on this issue. There is no entry on the back of the agreement Ex.1 with regard to payment of any amount as interest. There is no plea in the written statement about the payment of interest at three occasions as stated by the defendant in his statement and the explanation given by him is of no consequence because these facts were quite material. It is also significant to say that when the amount of Rs. There is no plea in the written statement about the payment of interest at three occasions as stated by the defendant in his statement and the explanation given by him is of no consequence because these facts were quite material. It is also significant to say that when the amount of Rs. 3,50,000/- was paid by the plaintiffs to the defendant through two cheques, in that case the oral testimony of the defendant is not reliable at all that he delivered gold ornaments worth Rs. 30,000/- and cash amount of Rs. 1,47,000/- against the amount of interest without obtaining any receipt from the plaintiffs. Therefore, the first point is decided against the defendant-appellant. (10). Second & Third Points :- Both these points are taken up together. It was contended by Mr. Goyal that the present suit was filed after a delay of 2 years; that the decree of specific performance is discretionary; that the defendant-appellant has got only 1/5th share in the suit property, hence the defendant- appellant was not entitled to execute the agreement Ex.1 and in the facts and circumstances of this case the decree of specific performance should not have been passed. He placed reliance upon Ashwinkumar Manilal Shah and Others vs. Chhotabhai Jethabhai Patel and Others (1), and Mohamed Asgar Mohamed Mazhar & Anr. vs. Arvind Raghunath Sawant & Anr. (2). Per contra, Mr. Karnani contended that there is no delay in filing the present suit and the provisions of Section 20 of the Specific Relief Act, 1963 (in short the Act) are not applicable and the vendor cannot plead the defect in title as defence in a suit for specific performance. He placed reliance upon Deenanath vs. Chunnilal (3), and Netyam Venkataramanna and Others vs. Mahankali Narasimhan (died) (4). (11). I have considered the rival submissions. The present suit was filed after about a period of 2 years from the date of the execution of the agreement Ex.1. The time was extended by the defendant-appellant himself on 23.6.1999, again on 23.8.1999 and again on 23.4.2000. The time of this agreement was extended upto 23.10.2000 and the present suit was filed in the court on 8.12.2000. Thus, firstly there is no delay in filing the present suit and secondly this Court in Deenanaths case (supra), held that mere delay in filing the suit is no ground to refuse the decree of specific performance. (12). The time of this agreement was extended upto 23.10.2000 and the present suit was filed in the court on 8.12.2000. Thus, firstly there is no delay in filing the present suit and secondly this Court in Deenanaths case (supra), held that mere delay in filing the suit is no ground to refuse the decree of specific performance. (12). The judgments relied upon by learned counsel Mr. Goyal are not applicable in the instant case. The Honble Supreme Court in Mohamed Asgar Mohamed Mazhar & Anr.s case (supra), held that the property alienated by the defendant belongs to Hindu Undivided Family with share of minors therein and it was not proved that alienation was made for legal necessity and in view of these facts relief of specific performance was held to be rightly refused. The Gujrat High Court in Ashwinkumar Manilal Shah and Others case (supra) held that suit property was ancestral property and the agreement was executed by some of the co-sharers and other co-sharers were not signatories to the agreement and thus agreement can be said to be giving undue advantage to one co-sharer over others and as such cannot be enforced. But the facts are quite distinct in the instant case. It is not in dispute that an application under Order 6 Rule 17 C.P.C. was filed by the defendant before the Trial Court along with one judgment dated 8.5.2002 passed in civil suit No. 66/1999 by Additional District Judge No. 1, Ajmer. A perusal of this judgment goes to show that Smt. Meena who is sister of the present defendant Ganpat Singh filed a civil suit against his two brothers and two sisters for partition of joint Hindu family property including the suit house. The learned Additional District Judge vide judgment dated 8.5.2002 declared 1/5th share of each i.e. The plaintiff and the four defendants. According to this judgment, the defendant-appellant before this Court has got 1/5th share in the suit property. This application was dismissed by the Trial Court on 25.1.2003 on the ground that such an objection of defective title cannot be taken by the vendor. It was also observed that the suit for partition was instituted in the year 1999 while the present suit was filed in December, 2000 and even though the defendant did not raise any objection with regard to his defective title. It was also observed that the suit for partition was instituted in the year 1999 while the present suit was filed in December, 2000 and even though the defendant did not raise any objection with regard to his defective title. Even if this judgment declaring 1/5th share of the defendant-appellant in the suit house is considered, the submissions made by learned counsel for the defendant-appellant cannot be accepted in view of the judgment of this Court delivered in Deenanaths case (supra), and the judgment of the Andhra Pradesh High Court delivered in Netyam Venkataramanna and others case (supra). In the present case, there is no question of the plaintiffs attempting to bind the interests of sisters and brother of the defendant-appellant as there was neither any such allegation made in the plaint nor they were impleaded parties to the suit. The only party to the agreement and the suit being the defendant, it is unnecessary to determine the rights of the persons who are not the parties before the court. Therefore, the question whether the suit house was ancestral property and the defendant had only 1/5th share in it is not required to be considered and thus the defendant-vendor cannot plead defect in his title as defence. (13). No doubt, Section 20 of the Act provides that jurisdiction to decree of specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. The discretion of the court is not arbitrary but sound and reasonable and guided by judicial principles and capable of correction by a court of appeal. Learned counsel for the defendant-appellant was not able to point out any circumstance which may attract any of the three clauses mentioned in sub- section (2) of Section 20 of the Act. Therefore, the Trial Court did not commit any wrong in giving the relief of specific performance to the plaintiffs. (14). For the reasons stated hereinabove, this appeal is dismissed with costs.