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2012 DIGILAW 135 (UTT)

Radha Krishna Agarwal v. Krishna Lal

2012-03-29

Prafulla C.Pant

body2012
JUDGMENT : Hon’ble Prafulla C. Pant, J. 1. This appeal preferred under Section 96 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 05.10.2005, passed by Additional District Judge/1st Fast Track Court, Roorkee, in Original Suit No. 126 of 1994, whereby said court has decreed the suit for specific performance of contract. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Brief facts of the case are that plaintiff/respondent filed a suit, before the trial court with the pleading that the properties A and B in suit were exclusively owned by the defendant/appellant on the basis of partition dated 22.06.1966. In respect of the property A, the defendant agreed with the plaintiff to sell him the same for an amount of ` 40,000/- in October, 1988, after accepting ` 10,000/- as part of consideration. The agreement dated 05.10.1988, was executed between the parties to this effect, after making further payment of ` 20,000/- by the plaintiff/respondent to the defendant/appellant. The sale deed was agreed to be executed by 31st of August, 1989. The plaintiff/respondent remained ready and willing to perform his part of contract. But on 31.08.1989, the defendant/appellant requested further time for execution of the sale deed. According to the plaintiff, the defendant expressed desire to sell the property B also, and executed another agreement dated 11.09.1989, after accepting ` 5000/- as the part of consideration. In terms of said agreement, the sale deeds were to be executed by 10.09.1990. But defendant did not keep the promise. On 30th of November, 1989, defendant asked for further Rs.15,000/- and issued a receipt after the plaintiff paid the said sum. When the plaintiff requested before 10th of September, 1990, to the defendant to execute the sale deeds, he (defendant) started saying that the property is not of the value less than `1.5 lacs. After some negotiations, on 03.02.1991, it was agreed that the plaintiff shall pay to the defendant ` 64,000/- cash, and another agreement dated 04.02.1991, was executed before the Sub-Registrar, in which, including the earlier payment, the defendant accepted before the Sub-Registrar, that he had received sum of ` 1 lakh. However, even by 03.02.1992, the last date of execution of sale deed, the defendant did not perform his part of duty. However, even by 03.02.1992, the last date of execution of sale deed, the defendant did not perform his part of duty. The plaintiff remained present in the office of Sub-Registrar, to get executed the sale deed, after giving due notice to the defendant to appear before the Sub-Registrar, on 03.02.1992. When the defendant failed to execute the sale deed, a suit was filed by the plaintiff for specific performance of contract. 4) The defendant/appellant contested the suit and filed his written statement before the trial court. He pleaded that property in question, was not exclusively owned by him, and the suit is bad in non-joinder of necessary party. He denied having received any amount of consideration, and execution of alleged agreements of sale. He alleged that documents relied by the plaintiff are forged. The defendant further pleaded in the written statement that the plaintiff expressed his desire to participate with the defendant in the joint business of stationery supply and invested Rs. 10,000/- only. The alleged documents were the documents of security. It is also pleaded that the value of the property is much more than for what the defendant is said to have agreed to sell. It is also pleaded in the written statement that the property is of joint Hindu family. It is also pleaded that in another suit filed by co-owner Naveen Kumar against the defendant, the order of status quo has been passed, as such, the suit was not maintainable. 5) On the basis of the pleading of the parties, as many as sixteen issues were framed in by the trial court. Parties filed their documentary evidence, and adduced the oral evidence. The trial court after hearing the parties, came to the conclusion that the defendants had executed the alleged agreements of sale in favour of the plaintiff and he did receive the part of consideration, as pleaded by the plaintiff. Relying on the registered agreements and the receipts, the trial court found that plea of the defendant that he did not execute the agreement of sale of property A-B is incorrect. The trial court further found that the property had already been partitioned in 1966, and it had lost the character of the Hindu undivided family property. Relying on the registered agreements and the receipts, the trial court found that plea of the defendant that he did not execute the agreement of sale of property A-B is incorrect. The trial court further found that the property had already been partitioned in 1966, and it had lost the character of the Hindu undivided family property. It also found that the finding of issue No. 6 relating to the non joinder of Naveen Kumar as party had already been decided by the trial court, as preliminary issue on 17.03.1997, in favour of the plaintiff. Accordingly, the suit was decreed for specific performance of contract vide judgment and decree dated 05.10.2005, by the trial court. 6) The impugned decree passed in suit no. 126 of 94 has been challenged on the ground that the decree is against the law, and evidence on record. It is also alleged in the grounds of appeal that the trial court, while giving finding on issue No.1 has accepted a new case, which was not pleaded by any of the parties. Referring to various documents, it is alleged that the same were read erroneously. It is also alleged that the suit was barred by Section 20 of Specific Relief Act, and the law of Limitation. 7) After hearing the arguments of learned counsel for the appellant and the respondent, this Court is of the view that following points of determination required to be answered in the light of order 41 Rule 31 of Code of Civil Procedure. I. Whether, trial court has erred in law, in reading and relying on the documentary evidence produced by the plaintiff. II. Whether, the decree in question was passed against the law of limitation. III. Whether the impugned decree was passed against the provisions of Section 20 of Specific Relief Act, 1963. 8.) I have gone through the documentary evidence i.e. agreements of sale, executed by the defendant in favour of the plaintiff and the receipts of the payment. The Agreements in question are registered documents executed before the Sub-Registrar, where the defendant had admitted receiving the payment, part payment of consideration. 8.) I have gone through the documentary evidence i.e. agreements of sale, executed by the defendant in favour of the plaintiff and the receipts of the payment. The Agreements in question are registered documents executed before the Sub-Registrar, where the defendant had admitted receiving the payment, part payment of consideration. The acknowledgment and receipts are also rightly believed by the trial court in the light of the statement of PW-1 Krishna Lal, PW-2 Satendra Kumar and PW-3 Rakesh Kumar, and mere oral denial on the part of the DW-1 Radha Krishna Agarwal, defendant of such documents was not sufficient to rebut the strong documentary evidence filed by the plaintiff, which is proved on record. The trial court has discussed at length, the evidence led by the parties and given sufficient reasons for believing the evidence adduced by the plaintiff as against that of the defendant. After re-appreciating the evidence on record, this Court concurs with the view taken by the trial court. Therefore, the point of determination No. I is decided in favour of the plaintiff/respondent. 9. II. It is argued on behalf of the appellant that the suit is filed by two and half years, after the expiry of the period of limitation, and as such, the same is barred by law. However, this Court does not find force in the argument advanced on behalf of the appellant. The period of limitation for Specific Performance of Contract is three years as provided in item no. 54 of part (II) of Schedule of the Limitation Act. The period of limitation starts from the date fixed for performance and where no such period is fixed from the refusal of the performance, on notice by the plaintiff. The plaintiff has pleaded and proved on record that after the agreements were executed, from time to time, the defendant got the period extended for execution of sale deed and ultimately, when he failed to execute the sale deed in terms of the last agreement the suit was filed within three years from the last date for performance of contract. It also proved by the plaintiff that the notice was given to the defendant to get the sale deed executed, but he failed to turn up. As such, this court finds no illegality in the decree passed by the trial court on the above ground. It also proved by the plaintiff that the notice was given to the defendant to get the sale deed executed, but he failed to turn up. As such, this court finds no illegality in the decree passed by the trial court on the above ground. Point of determination II is also stands answered in favour of the Plaintiff/respondent. 10. Learned counsel for the appellant contended that in view of Section 20 of Specific Relief Act, the plaintiff is not entitled to the grant of decree of specific performance merely because it is lawful to do so. It is submitted that the property in question is of much more value than the amount for which, it was agreed to be sold. However, this Court is unable to accept the submissions advanced on behalf of the appellant, for the reason that the Explanation (I) of Section 20 of Specific Relief Act, provides that mere inadequacy of consideration or mere fact that the contract is onerous to the defendant shall not be deemed to constitute the unfair advantage to the plaintiff. The value of the property is required to be seen as it existed at the time, when the agreement of sale was executed by the party. In every case, after some period, the value of the immovable property normally increases, and on such ground, the decree of specific performance cannot be refused lightly to the purchaser. Accordingly the point of determination No. (III) is also decided against the appellant. 11. For the reasons as discussed above, this court finds no force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed with costs.