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2007 DIGILAW 240 (PNJ)

Reshma Gautam v. Nirmala Rani

2007-02-09

HEMANT GUPTA

body2007
Judgment 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below granting specific performance of agreement dated 9-4-1994 and 7-10-1994. 2. The plaintiff-respondent filed a suit for specific performance of the aforesaid agreements alleging therein that the defendant agreed to sell her house to the plaintiff for Rs. 3 lacs and received Rs. 1,20,000/- through cheque. The sale deed was to be executed on or before 8-10-1994. Since the defendant could not execute the sale deed on the date fixed, time for execution of the sale deed was extended uptill 15-2-1995 but a sum of Rs. 1,80,000/- was received by the defendant as full and final amount of sale of the house from the plaintiff. An agreement was executed on 7-10-1994 in respect of payment of balance sale consideration of Rs. 1,80,000/-. The sale deed was to be executed on or before 15-2-1995 but the defendant did not turn up for the registration of the sale deed on 14-2-1995 and 16-2-1995 and subsequently present suit for specific performance was filed on 9-3-1995. 3. The defendant denied the agreement and asserted that, in fact, one Kanta Sharma started business of committee by enrolling members. Dr. Puran Chand, husband of the appellant-defendant, undertook to provide all the members for joining the said committee. Seven members contributed seven installments but Kanta Sharma died in the month of November, 1993. The members compelled the husband of the appellant to pay back their amount but on failure to return such amount, a sum of Rs. 1,20,000/- was taken as loan from the husband of the plaintiff. The amount was advanced by Om Parkash, husband of the plaintiff, vide cheque in the name of wife of Puran Chand on interest at the rate of 3% per month. The defendant was made to sign certain papers. The said cheque of Rs. 1,20,000/- was issued in the presence of Prem Singh Grewal, Bharat Das and Rakesh Kumar. This loan was got advanced with the help of Baij Nath Sharma who was close to the husband of the plaintiff. Shri Prem Singh, Boothgarh, Bharat Ram, Bhag Singh etc. were said to be members of the committee. The defendant alleged that the defendant has only one house which is newly constructed and the value of the property is not less than Rs. 10 lacs. Shri Prem Singh, Boothgarh, Bharat Ram, Bhag Singh etc. were said to be members of the committee. The defendant alleged that the defendant has only one house which is newly constructed and the value of the property is not less than Rs. 10 lacs. The agreement cannot be enforced as it is a case of hardship hit by Section 20 of the Specific Relief Act, 1963 . It has also been pleaded that the husband of the defendant was in need of money and he has raised loan of Rs. 1 lac. The husband of the plaintiff made arrangement to make payment of said amount through cheque in the account of Lachhman Dass, brother of the husband of the defendant. The said amount was withdrawn by Lachhman Dass from his account on 11-4-1994 and later on this amount was returned by Puran Chand, husband of the defendant, in the account of his brother. Om Parkash, husband of the plaintiff, withdrew an amount of Rs. One lac from the account of Lachhman Dass on 29-4-1994. The defendant also denied the receipt of Rs. 1,80,000/- and execution of agreement dated 7-10-1994. The defendant alleged that the documents are false and fabricated. 4. After considering voluminous evidence led by the parties, both the Courts below returned finding that agreement Exhibit P-1 dated 9-4-1994 and Exhibit P-2 dated 7-10-1994 are proved to be executed. Such finding was returned on the basis of statement of P.W. 2 Vijay Kumar, P.W. 3 Bal Krishan, attesting witnesses of agreements Exhibits P-1 and P-2, Atul K. Singla, document expert, has been examined as P.W. 4 who has given his report Exhibit P-3 to the effect that agreements Exhibits P-1 and P2 bears the signatures of the defendant. It was found that the defendant is an educated lady. She is Senior Secondary pass and also qualified Ayurvedic Acharya. Even power of attorney was given to the husband of the plaintiff earlier which was withdrawn by the defendant later on. The sale deed of the house was also given by the defendant to the plaintiff. It was also found that the suit property has been purchased by the defendant vide sale deed Exhibit P.W. 5/4 for Rs. 45,000/- on 22-2-1993 and, therefore, the price cannot be said to be more than Rs. 10 lacs within a short span of the purchase. It was also found that the suit property has been purchased by the defendant vide sale deed Exhibit P.W. 5/4 for Rs. 45,000/- on 22-2-1993 and, therefore, the price cannot be said to be more than Rs. 10 lacs within a short span of the purchase. Learned trial/Court also found that the plaintiff was ready and willing to perform his part of the contract on the basis of affidavit Exhibit P.W. 5/2 and Exhibit P.W. 5/3 executed a day earlier and a day later than 15-2-1995 which was a holiday. Thus, in view of the said finding, the learned trial Court decreed the suit. The learned first Appellate Court affirmed the finding recorded by the learned trial Court, Still aggrieved, the defendant is in second appeal. 5. Learned counsel for the appellant has vehemently argued that the Courts below have not discussed the evidence of Baij Nath D.W. 5 and Bhagat Ram D.W. 6 and, therefore, the findings recorded are not sustainable as material evidence has not been considered. However, I do not find any merit in the said argument. Learned trial Court has mentioned that D.W. 5 Baij Nath has deposed that he has requested Om Parkash i.e. husband of the plaintiff, to give loan to the husband of the defendant to the tune of Rs. 1,20,000/-. He admitted that no writing took place in his presence. He has not deposed that he was present when the agreement was executed. In fact, his evidence is not of a person who has seen the parties entering into agreement. In the written statement, the defendant has pleaded that a cheque of Rs. 1,20,000/- was given by the plaintiff in the presence of Prem Singh Grewal Boothgarh and Rakesh Kumar. However, neither Prem Singh Boothgarh nor Rakesh Kumar have been examined as a witness. The said persons alone could depose in respect of any conversation preceding delivery of cheque. However, it was the case of the defendant in the written statement that the loan was advanced with the help of Baij Nath who was close to the husband of the plaintiff. D.W. 6 is Bhagat Ram who has stated he became member of the committee at the instance of Puran Chand, husband of the defendant. He is stated to be a person provided by the husband of the defendant to join the committee. D.W. 6 is Bhagat Ram who has stated he became member of the committee at the instance of Puran Chand, husband of the defendant. He is stated to be a person provided by the husband of the defendant to join the committee. The statement of said witness is not relevant for the determination of the question of agreement of sale as he is not stated to be a witness of any of the transactions between the parties. Apart from the contradiction in the evidence and the pleadings, the fact remains that the appellant-defendant has not raised any argument on the basis of the evidence of D.W. 5 Baij Nath and D.W. 6 Bhagat Ram before the Courts below. Neither in the grounds of appeal before the learned first Appellate Court nor in the ground of appeal filed before this Court, any reference is made to non-consideration of testimony of said witnesses. Even in the written arguments filed before the learned first Appellate Court, there is no reference to the statement of D.W. 5 and D.W. 6 not having considered by the learned trial Appellate Court. In fact, the appellant was satisfied with the general ground that evidence led by the defendant has not been considered. There is no specific reference to the testimony of aforesaid witnesses not having considered by the Courts below. Therefore, the argument which is based upon question of fact cannot be permitted to be raised in second appeal as well. 6. Learned counsel for the appellant then contended that though in the agreement Exhibit P-1, an amount of Rs. 1,20,000/- has been stated to be paid through cheque but agreement Exhibit P-2 recites payment of Rs. 1,80,000/- in cash. It is also pointed out that agreement Exhibit P-2 has inordinate spacing and, therefore, it appears that the said agreement has been prepared on the paper which already bore the signatures of the appellant. However, the said argument is again not tenable. Agreement Exhibit P-2 bears the signatures of defendant on the first page as well as on the second page which is on the reverse side of the first page. There is nothing unusual in the writing of the said document except that the writing on the reverse of the page is no starting right underneath the endorsement of purchase of stamp paper. There is nothing unusual in the writing of the said document except that the writing on the reverse of the page is no starting right underneath the endorsement of purchase of stamp paper. The said fact alone is not sufficient to disbelieve the execution of the document which is proved by the testimony of the attesting witnesses and the expert who have deposed that the document was signed by the defendant in their presence and on receipt of Rs. 1,80,000/-. The fact that earlier payment is made by cheque and later on cash is not a circumstance which can put doubt on the proof of execution of documents. The finding regarding payment is finding of fact arrived at after appreciation of evidence. The conduct of the plaintiff in filing suit within three weeks of the date fixed for the agreement is the strong factor which weigh in favour of the finding that such agreements were executed. 7. No other point is argued. 8. Both the Courts below have discussed the entire evidence to return a concurrent finding of fact that the defendant has executed agreements Exhibits P-1 and P-2 on receipt of sale consideration of Rs. 1,20,000/- and Rs. 1,80,000/- respectively. The said finding is based on proper appreciation of evidence. The findings are sought to be disputed by reappreciation of evidence alone. 9. Consequently, I do not find any patent illegality or material irregularity in the findings recorded by the Courts below which may give rise to any substantial question of law for consideration by this Court in second appeal. 10. Dismissed.