Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 208 (PNJ)

Vikram Singh v. Nand Gopal

2010-01-11

L.N.MITTAL

body2010
Judgment L.N.MITTAL, J. 1. Cm No.118-C of 2010 for reasons mentioned in the application, which is accompanied by affidavit, delay of 54 days in filing the appeal is condoned. Main Appeal. 2. At the outset, it has to be mentioned that the instant second appeal has been preferred by Vikram Singh defendant against Nand Gopal plaintiff, as mentioned in the opening sheet of the appeal at page 5 of the paper book, but in memo of parties at page 9, Nand Gopal is mentioned as appellant whereas Vikram Singh is mentioned as respondent. Office to make necessary correction in the memo of parties by depicting Vikram Singh as appellant and Nand Gopal as respondent. 3. Nand Gopal filed suit for recovery of Rs.40000/- i. e Rs.30000/- as principal amount and Rs.10000/- as interest thereon alleging that the defendant borrowed Rs.30000/- from the plaintiff on 03.07.2004 and agreed to repay the same with interest thereon at the rate of 1.50% per month and executed necessary pro-note and receipt for the same, but the defendant failed to repay the aforesaid amount and interest. 4. The defendant alleged that he never borrowed any money from the plaintiff and in fact, defendants mother had been purchasing grocery items from Sham Lal, scribe of the pro-note and receipt, and said Sham Lal had obtained thumb impressions and signatures of the defendant on certain documents on the pretext that the same were required for being submitted before Sales Tax and Income Tax Authorities in connection with sale of grocery articles. Learned Additional Civil Judge (Senior Division), Narwana vide judgment and decree dated 20.03.2009 dismissed the suit. However, in appeal preferred by the plaintiff, learned District Judge, Jind vide impugned judgment and decree dated 10.08.2009 partly allowed the appeal and partly decreed the suit of the plaintiff with cost for recovery of Rs.30000/- with interest thereon at the rate of 12% per annum from the date of filing of suit till date of decree of appellate Court and future interest at the rate of 6% per annum till recovery. Feeling aggrieved, the defendant has filed the instant second appeal. 5. I have heard learned counsel for the appellant and perused the case file. 6. Following substantial questions of law are said to be arising in the instant second appeal as mentioned in paragraph 7 of the appeal:- " (i) Whether the execution of pronote Ex. Feeling aggrieved, the defendant has filed the instant second appeal. 5. I have heard learned counsel for the appellant and perused the case file. 6. Following substantial questions of law are said to be arising in the instant second appeal as mentioned in paragraph 7 of the appeal:- " (i) Whether the execution of pronote Ex. P-1 and receipt Ex. P-2 has been or has not been proved? (ii) Whether the testimony of PW-1 can be believed and relied upon? (iii) Whether the judgment and decree passed by the Learned First appellate Courts are perverse? (iv) Whether the Ld. First Appellate Courts has misread the evidence on record while reversing the judgment and decree passed by the Ld. Trial Court?" 7. However, perusal of the aforesaid questions reveals that all the said questions are questions of facts and not questions of law much less substantial questions of law. Second appeal cant be entertained on question of facts. It could be entertained only on substantial questions of law. In the instant case, however, no substantial question of law arises for determination. Learned counsel for the appellant vehemently contended that the pronote in question is undated and, therefore, no presumption of consideration can be raised under Sec.118 of the Negotiable Instruments Act, 1881 . The contention cannot be accepted. The question of presumption regarding consideration would also be a question of fact as to whether the consideration was paid or not. Moreover, no such question of law has even would raised by the appellant in paragraph 7 of the grounds of appeal. In addition to the aforesaid, the aforesaid contention has no foundation inasmuch as pronote-cum-receipt is a single document and date is written at the bottom thereof against the relevant column. In the printed form of pronote-cum-receipt as shown by counsel for the appellant, there is no column for date in the first part i. e pronote and there is only one column for date in the entire document and the date has been written therein. Consequently, it cannot be said that the pronote is undated. Moreover, the defendant even in his written statement admitted that his thumb impression and signatures had been obtained on certain documents by Sham Lal on 03.07.2004. Consequently, it cannot be said that the pronote is undated. Moreover, the defendant even in his written statement admitted that his thumb impression and signatures had been obtained on certain documents by Sham Lal on 03.07.2004. Consequently, the aforesaid contention raised by counsel for the appellant has no substance and the finding of the appellate Court against the defendant-appellant is well-founded and well-reasoned and does not call for any interference in second appeal. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed in limine. court was not challenged by the appellants or the vendor, before first appellate Court. 8. The only ground for denial of the relief for specific performance by learned trial Court was, that the vendor was not the owner of the property on the date of agreement to sell as he acquired the title only subsequently, therefore, the agreement was not specifically enforceable. 9. This finding of the learned trial Court was rightly set aside. The decree passed by the learned lower appellate Court is in consonance with Sec.13 (1) (a)of the Specific Relief Act, 1963, which reads as under: - "13. Rights of purchaser or lessee against person with no title or imperfect title.- (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:- (a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;" 10 The first substantial question of law, therefore, does not arise for consideration. 11. For the reasons recorded above, the second substantial question of law is also answered against the appellants, as in view of section 13 (1) (a) of the Specific Relief Act, on acquisition of the title in the property subsequently, the vendee can enforce the contract of specific performance. 12. The learned counsel for the appellants, on the third substantial question of law, contended, that the specific performance of contract was likely to cause hardship to the appellants, which they could not foresee. 12. The learned counsel for the appellants, on the third substantial question of law, contended, that the specific performance of contract was likely to cause hardship to the appellants, which they could not foresee. Whereas non-performance of the contract was not to cause any hardship to plaintiff/respondent No.1, as the learned trial Court had decreed the suit for recovery of earnest money along with interest. Therefore, the decree passed by the learned lower appellate Court, is violative of section 20 of the Specific Relief Act. 13. It was also contended by the learned counsel for the appellants, that the contract was inequitable. 14. This plea of the learned counsel for the appellants again deserves to be noticed to be rejected. The appellants cannot be said to have suffered any hardship, as the sale deed in their favour was subsequent to agreement to sell in favour of plaintiff/respondent No.1. It cannot be said that the appellants could not foresee the hardship at that time, as admittedly they are the real brothers of the vendor. It cannot be said, that appellants had no knowledge of the agreement to sell. It is for this reason, that the plea of "bona fide purchaser" was not raised, either before the learned trial Court or the learned lower appellate Court, though specifically impleaded as party, with an averment that the transaction of sale in their favour was a sham transaction, to defeat the right of plaintiff/respondent. 15. The third substantial question of law is, therefore, also answered against the appellants, as no ground to deny the specific performance in terms of Sec.20 of the Specific Relief Act is made out in the case. 16. The learned counsel for the appellants also contended, that in the present case, the plaintiff/respondent No.1 failed to rebut the evidence of the appellants, of bona fide purchasers in good faith without notice of earlier contract, as there was no averment in this regard, qua the knowledge of earlier contract. 17. In support of this contention, the learned counsel for the appellants placed reliance on the judgment of the Honble Supreme Court in B. Rajamani Vs. Mrs. Azhar Sultana and Ors. , 2005 (2) Civil Court cases 696. 18. This contention of the learned counsel for the appellants is totally mis-conceived. 17. In support of this contention, the learned counsel for the appellants placed reliance on the judgment of the Honble Supreme Court in B. Rajamani Vs. Mrs. Azhar Sultana and Ors. , 2005 (2) Civil Court cases 696. 18. This contention of the learned counsel for the appellants is totally mis-conceived. The specific stand taken by plaintiff/respondent no.1 was, that the transaction, of sale in favour of the appellants was sham transaction, to defeat the rights of the plaintiff. It was specifically pleaded, that the appellants are real brothers of the vendor and the sale deed in their favour could not affect the rights of the plaintiff to seek the relief of specific performance. 19. The appellants even did not claim an issue of "bona fide purchasers" for consideration. It cannot be said, that appellants were bona fide purchasers for consideration without notice, as contended. 20. All the substantial questions of law raised are answered against the appellants. 21. Finding no merit in this appeal, it is ordered to be dismissed in limine.