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Uttarakhand High Court · body

2012 DIGILAW 389 (UTT)

DHARAM VEER SINGH v. SATISH CHAND GARG

2012-07-18

B.S.VERMA

body2012
JUDGMENT (Hon’ble B.S. Verma, J.) This appeal is directed against the judgment and decree dated 10.11.1995, passed by Sri V.P. Singh, Additional District Judge, Roorkee, in Civil Appeal No. 23 of 1991, Satish Chandra Garg(deceased) through L.Rs. Smt. Sheela Rani and others vs. Dharam Veer Singh, whereby the appeal was allowed and the suit of the plaintiff was dismissed. 2. This appeal was admitted on 23-2-1996 by the Allahabad High Court on the following substantial questions of law (C), (E) and (F) framed in the memo of appeal:- (C) Whether the lower appellate court did not consider the entire evidence of the plaintiff on the finding of readiness and willingness along with the pleadings and based its judgment on one line only? (E) Whether since the defendant admitted the execution of the agreement thus in view of Section 91 and 92 of the Evidence Act the suit of the plaintiff ought to have been decreed?. (F) Whether the finding of the court below that the contract is one sided and oppressive is illegal and perverse in view of the fact that the willful execution of the agreement was admitted by the defendant?. 3. Briefly stated the facts, giving rise to this appeal, according to the plaintiff/appellant, are that the plaintiff/appellant Dharam Veer Singh executed an agreement to sell the land in question on 29-11-1980 in favour of defendant/respondent Satish Chandra Garg with a consideration of Rs. 59,000/-, out of which Rs. 10,000/- were paid to the plaintiff as an advance money by the defendant. The defendant did not execute the sale deed in favour of plaintiff and on 30-10-1982, the plaintiff sent notice to defendant to remain present before the Sub-Registrar, Roorkee on 27-11-1982 to execute and register the sale deed in favour of plaintiff but he did not turn up. The last date of execution of sale deed as per the agreement dated 29.11.1980 was 28-11-1982 but 28.11.1982 was Sunday, and on that day also the defendant did not turn up. Again on 29-11-1982 the plaintiff remained present before the Sub Registrar Roorkee along with the amount of remaining consideration and recorded his attendance before the Sub Registrar, on 29-11-1982 but the defendant did not turn up. Hence on 7.1.1983, Suit No. 7 of 1983 was filed by the plaintiff for specific performance of the contract. 4. Again on 29-11-1982 the plaintiff remained present before the Sub Registrar Roorkee along with the amount of remaining consideration and recorded his attendance before the Sub Registrar, on 29-11-1982 but the defendant did not turn up. Hence on 7.1.1983, Suit No. 7 of 1983 was filed by the plaintiff for specific performance of the contract. 4. The defendant has filed his written statement on 12-8-1983 and denied the fact that the agreement was written to execute the sale-deed, and stand has been taken that the agreement was executed between the parties as security of loan advanced by the plaintiff to the defendant to the tune of Rs. 10,000/- and specific plea was taken that the plaintiff was never ready and willing to perform his part of contract nor he had money with him to pay the same to the defendant. 5. The learned Civil Judge(S.D.) Roorkee, framed necessary issues in the suit and parties led evidence. Then after considering the evidence of parties and hearing counsel for the parties, the trial court decreed the suit vide judgment and decree dated 30-11-1983. Being aggrieved by the judgment and decree of the trial court, the defendant preferred Civil Appeal No. 23 of 1991, Satish Vs. Dharam Veer Singh. The appellate court vide impugned judgment and decree 10-11-1995 allowed the appeal and the suit of the plaintiff was dismissed. 6. I have heard learned counsel for the parties and perused the record. Finding on Substantial Question No. (C) 7. This question relates to finding of appellate court on the point of readiness and willingness to perform the part of contract. The trial court had framed Issue No.7 on the point of the plaintiff’s willingness and readiness to perform his part of contact. The learned trial court has recorded by the finding of readiness and willingness of the plaintiff to perform his part of performance of contract on the basis of evidence of plaintiff P.W.1, Dharam Veer Singh, who had stated that he had given notice to defendant to remain present before Sub Registrar. The plaintiff remained present before the Sub Registrar on 27-11-1982 and 29-11-1982 and recorded his attendance by giving application copy of which is has been filed as paper No. 31-C but the defendant did not turn up. The plaintiff remained present before the Sub Registrar on 27-11-1982 and 29-11-1982 and recorded his attendance by giving application copy of which is has been filed as paper No. 31-C but the defendant did not turn up. D.W.1, defendant Satish Chand also gave statement that on 27-11-1982 and 29-11-1982 he was also present before Sub Registrar Roorkee but he had not gone there to execute the sale deed and was there only to see whether the plaintiff was present there or not but the defendant did not file any application there to record his attendance. The trial court also gave finding that the defendant has not stated in his examination-in-chief that the plaintiff was not willing and ready to purchase the disputed land and it was held that the plaintiff is always ready to perform his part of the contract throughout. 8. The appellate court gave finding on the point of readiness and willingness to perform part of contract, that the plaintiff in para-4 of the plaint has written that he is always ready to get executed the sale deed but he has not written that he is always willing to execute the sale deed. Further in the notice dated 30-10-82 there is no description that the plaintiff is ready and willing to get executed the sale deed and only this much is written in the notice that he will present before the Sub Registrar Roorkee on 27-11-1982 to get executed the sale deed along with consideration of Rs. 49,000/-. The appellate court also took note of the application paper No. 31-C which was given by the plaintiff to Sub Registrar Roorkee noting his attendance there, in which there is no mention to the facts of readiness and willingness of execution of sale deed and it has not been mentioned therein that he had money with him. The appellate court also recorded a finding that in accordance with Proforma 47 and 48 of Schedule-I of C.P.C. and U/S 16(c)Specific Performance Act, it was obligatory upon the plaintiff to mention these facts that he was always ready and willing to get executed the sale deed and these facts were to be proved by cogent and reliable evidence. The appellate court has held that the plaintiff has not been able to prove this fact that he was always ready and willing to get executed the sale deed in favour of the defendant. The appellate court has held that the plaintiff has not been able to prove this fact that he was always ready and willing to get executed the sale deed in favour of the defendant. 9. Learned counsel for the plaintiff/appellant has contended that the plaintiff was always ready and willing to perform his part of contract. He had appeared before the Sub Registrar, Roorkee along with balance amount of consideration but the defendant/respondent failed to present before the Sub Registrar to execute the sale deed. The finding of the appellate court on the point of readiness and willingness is a perverse finding and liable to be set aside. 10. On the other hand learned counsel appearing on behalf of defendant/respondent has submitted that in a case of specific performance of contract, plaintiff has to aver and prove that he has performed his part of contract. The first appellate court has given a correct finding on the point of readiness and willingness of the plaintiff to perform part of his contract. He has further contended that finding on question of readiness and willingness to perform contract is mixed question of law and fact and findings of fact recorded by court below that plaintiff had failed to establish that he was ready and willing to perform his part of contract, cannot be set aside by second appellate court without re-appreciating evidence, which is impermissible. In support of his contention learned counsel has cited the following cases:- 1- H.P. Pyarejan v. Dasappa (Dead) by L.Rs. & Ors., reported in AIR 2006 Supreme Court 1144. 2- Manohar Lal v. Smt. Rajeshwari Devi and another, reported in AIR 1977 Allahabad 36. 3- Sankatha Prasad v. Abdul Aziz Khan, reported in AIR 1976 Allahabad 95. 4- N.P. Thirugnanam (D) by L.Rs. vs. Dr. R. Jagan Mohan Rao and others, reported in AIR 1996 Supreme Court 116. I have gone through the above cited judgments. 11. In the case of H.P. Pyarejan v. Dasappa (Dead) by L.Rs. & Ors., reported in AIR 2006 Supreme Court 1144, the Hon’ble Supreme Court has held that the finding on the question of readiness and willingness to perform the contract is a mixed question of law and fact has been upset. I have gone through the above cited judgments. 11. In the case of H.P. Pyarejan v. Dasappa (Dead) by L.Rs. & Ors., reported in AIR 2006 Supreme Court 1144, the Hon’ble Supreme Court has held that the finding on the question of readiness and willingness to perform the contract is a mixed question of law and fact has been upset. It is statutorily provided by Section 16(1)(C) of the Act that to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the performance of which has been prevented or waived by the defendant. It has further been observed that under Section 100 of the Code ( as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involves re-appreciation of evidence. 12. In the cited case of Manohar Lal v. Smt. Rajeshwari Devi and another, reported in AIR 1977 Allahabad 36,it has been observed that the finding that a person did not execute the disputed document, is one of fact and cannot be interfered with in second appeal. It has further been held that a suit for specific performance has to conform to the requirements prescribed in Form 47 and 48 of the First Schedule in the C.P.C. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. 13. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. 13. In the another cited case of Sankatha Prasad v. Abdul Aziz Khan, reported in AIR 1976 Allahabad 95, it has been held that in a suit for specific performance, where the averment to the effect that the plaintiff has all along been ready and willing to perform his part of the contract is lacking in the plaint, the plaintiff is not entitled to any decree for specific performance notwithstanding the fact that no breach of contract was committed by the plaintiff and that it was the defendant who tried to evade execution of the contract by hook or by crook. 14. In the last cited case of N.P. Thirugnanam (D) by L.Rs. vs. Dr. R. Jagan Mohan Rao and others, reported in AIR 1996 Supreme Court 116, the Apex Court has held that to adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available. Right from the date of execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. 15. In the case at hand the appellate court has recorded a categorical finding that the plaintiff in para-4 of the plaint has pleaded that he is always ready to get executed the sale deed but he has not pleaded in the plaint that he is willing to get executed the sale deed. Further in the notice dated 30-10-82 there is no description that the plaintiff is ready and willing to get executed the sale deed and only this much is written in the notice that he will present before the Sub Registrar Roorkee on 27-11-1982 to get executed the sale deed along with Rs. 49,000/-. Further in the notice dated 30-10-82 there is no description that the plaintiff is ready and willing to get executed the sale deed and only this much is written in the notice that he will present before the Sub Registrar Roorkee on 27-11-1982 to get executed the sale deed along with Rs. 49,000/-. The appellate court also took note of the application paper No. 31-C which was given by the plaintiff to Sub Registrar Roorkee on 29-11-1982 noting his attendance there, in which there is no mention to the facts of readiness and willingness to get executed the sale deed and it has not been mentioned therein that he had money with him. The appellate court also recorded a finding that in accordance with Proforma 47 and 48 of Schedule-I of C.P.C. and U/S 16(c) Specific Performance Act, it was obligatory upon the plaintiff to mention these facts that he was always ready and willing to get executed the sale deed in his favour and these facts were to be proved by cogent and reliable evidence. Thus absence of showing his willingness to perform part of his contract in the plaint, as well as in the notice sent to defendant to present before the Sub Registrar, clearly shows that willing part is lacking from the side of the plaintiff. 16. The conduct of the plaintiff also does not indicate this fact that the plaintiff was willing to perform his part of contract. Copy of letter No. 37-C/1 is on the record of trial court. The said letter is said to be written by Dharam Veer Singh plaintiff to the defendant Sri Satish Chand, in which the plaintiff has written that the defendant should not be worried of the notice and he should make arrangement of balance amount along with interest. It is also written in the letter that he is sending the letter so that the defendant should not be feared of the notice sent to him and he should not feel that the plaintiff is in favour of taking his land. Although the plaintiff has denied the fact that he wrote the letter to the defendant and the writing of plaintiff was compared by hand writing expert with the writing of disputed letter. D.W.4, Sri Vinod Kumar Agarwal is hand writing expert, who had examined the hand writing of the plaintiff and the writing of disputed letter. Although the plaintiff has denied the fact that he wrote the letter to the defendant and the writing of plaintiff was compared by hand writing expert with the writing of disputed letter. D.W.4, Sri Vinod Kumar Agarwal is hand writing expert, who had examined the hand writing of the plaintiff and the writing of disputed letter. This witness had stated on oath that the writing of disputed letter is of the plaintiff and the finding on this point recorded by first appellate court is a finding of fact and cannot be looked into at the stage of second appeal, as the first appellate court after a detailed discussion has found that the letter was written by the plaintiff to the defendant. 17. On the other hand the trial court has upheld the readiness and willingness of the plaintiff to perform his part of contract, simply on the on the basis of oral statement of plaintiff, but has failed to consider that the plaintiff had not mentioned the fact of his willingness in the plaint, in the notice sent to the defendant, as well as in the application given to the Sub Registrar, for recording his attendance and the finding of trial court has rightly been held to be a perverse finding by the appellate court. The trial court also failed to appreciate the letter 31-C/2 written by the plaintiff to the defendant. 18. In the above facts of the case in hand, and in view of law laid down in the above-cited cases, I do not find that the lower appellate court did not consider the entire evidence of the plaintiff on the finding of readiness and willingness along with the pleadings. The leaned appellate court has recorded a correct finding on the question of readiness and willingness. The substantial question of law is answered against the appellant. Finding on Substantial Question No. (E) 19. This question relates to admission of disputed agreement dated 29-11-1980 by the defendant and applicability of provision of Sections 91 and 92 of Indian Evidence Act. 20. The defendant’s case is that he never intended to sell the land in suit nor the defendant ever entered into agreement to sell as alleged nor there was any necessity of agreeing to sell the land. The plaintiff gives money on loan and for security purpose asks to execute the agreement to sell the land. 20. The defendant’s case is that he never intended to sell the land in suit nor the defendant ever entered into agreement to sell as alleged nor there was any necessity of agreeing to sell the land. The plaintiff gives money on loan and for security purpose asks to execute the agreement to sell the land. In the year 1980 the daughter of defendant was to be married and the defendant being a poor teacher was not in a position to make expenses in the marriage, therefore he took Rs. 4,000/- as loan from his P.F. and requested the plaintiff to give Rs. 10,000/- to defendant as loan and in lieu of that the plaintiff asked the defendant to enter into an agreement to sell the land in suit by way of security and after the return of loan the agreement to sell shall stand cancelled. 21. The plaintiff in order to prove the agreement dated 29-11-1980 has produced himself as P.W.1, P.W.2 Sri Ajay Mohan Paliwal Hand Writing Expert, but did not produce any of attesting witness of the disputed agreement for the reason best known to him. The defendant in his statement on oath has stated that the agreement in dispute was written as security in lieu of loan taken by him from the plaintiff. D.W.2, Mahak Singh, has stated that the defendant had taken Rs. 10,000/- from the plaintiff for the marriage of his daughter. When the money was demanded by Satish Chandra he and Jagdish were present there at the house of Dharam Veer. This witness has stated that Dharam Veer had asked Satish Chandra that he would give money on land and when he will return his money along with interest he will return back his land. The agreement to sell was prepared on the above terms. D.W.3, Jagdish Prasad also supported the version of defendant Satish Chandra and D.W.1, Mahak Singh. This witness has made a categorical statement that the land in question was given as 9 security in lieu of loan advanced by Dharam Veer. The agreement to sell was prepared on the above terms. D.W.3, Jagdish Prasad also supported the version of defendant Satish Chandra and D.W.1, Mahak Singh. This witness has made a categorical statement that the land in question was given as 9 security in lieu of loan advanced by Dharam Veer. D.W.3, Jagdish Prasad is also the witness who had identified the parties of agreement paper No. 14-A/1 before the Sub-Registrar at the time of registration of the aforesaid agreement and this fact further indicates that this witness Jagdish Prasad is fully acquainted with the parties to suit and his presence at the time execution of the agreement paper No. 14-A/1 cannot be doubted. No reason has been assigned on behalf of the plaintiff as to why the witnesses D.W.2, Mahak Singh and D.W.3, Jagdish Prasad would falsely depose against the plaintiff and in favour of the defendant. Therefore the veracity of theses witnesses cannot be doubted. The learned appellate court has rightly reached to the conclusion that the defendant had taken loan from the plaintiff and in lieu of security the disputed agreement was executed. Therefore, in the above facts and circumstances of the case provisions of Section 91 and 92 Evidence Act are not applicable to the instant case and suit of plaintiff is not liable to be decreed solely on the basis of the admission of defendant for execution of the document. But this fact remains there that for what purpose the agreement was executed. D.W.2, Mahak Singh and D.W.3, Jagdish Prasad, have stated that it was executed for security of loan. The case of the defendant is also that the agreement was executed as security against the loan taken by him from the plaintiff. The defendant has not admitted the contents of the agreement and simply admitted his signatures therein. The plaintiff has failed to produce the attesting witnesses Jai Singh and Ram Swaroop. Therefore no benefit of Sections 91 and 92 of Evidence Act, can be given to plaintiff that the defendant admitted the execution of disputed agreement. The substantial question of law (E) is answered against the plaintiff/appellant. Finding on Substantial Question No. (F) 22. This substantial question of law is with regard to illegality of finding of appellate court holding that the contract is one sided and oppressive. 23. The substantial question of law (E) is answered against the plaintiff/appellant. Finding on Substantial Question No. (F) 22. This substantial question of law is with regard to illegality of finding of appellate court holding that the contract is one sided and oppressive. 23. It is true that the disputed agreement is a registered document, but as has been held that the agreement was executed as security in lieu of loan advanced by the plaintiff to the defendant; the plaintiff did 10 not prove his case that he was willing to perform his part of contract and the conduct of the plaintiff was not fair in the deal. It is the specific case of defendant that he had taken loan from the plaintiff for the marriage of his daughter and the plaintiff had asked him to execute the agreement to sell the land as security of the loan. The defendant also brought on record the agreements executed by one Jasbir Singh, Sher Singh, Kishan Singh, Nakali Ram in favour of plaintiff and also filed the Khautani relating the land above land for which agreements were executed in favour of plaintiff to show that these agreements were not materialized in favour plaintiff. It was alleged on behalf of defendant that the plaintiff was in habit of getting executed agreements of sale of land in lieu of loan. The learned appellate court has given a finding that the disputed agreement paper No. 14-A/1 is a registered document and presumption of correctness of the document can be taken U/S 114 of Evidence Act, and no one had said that the disputed document is incorrect, but the case of defendant is that he had taken loan from plaintiff and this document was executed as security in lieu of that loan. Therefore, no adverse inference can be drawn of the disputed agreement. The learned appellate court has not recorded a finding that the document 14-A/1 was one sided and oppressive. Rather the court has not denied the authenticity of the document, but on the basis of evidence on record, has held that the document was executed simply as security towards the loan taken by defendant from the plaintiff. I do not find that the learned appellate court had recorded wrong finding in respect of document 14-A/1. The substantial question of law (F) is also answered against the plaintiff/appellant. 24. I do not find that the learned appellate court had recorded wrong finding in respect of document 14-A/1. The substantial question of law (F) is also answered against the plaintiff/appellant. 24. Learned counsel appearing on behalf of appellant/plaintiff has contended that in case the appellant/plaintiff did not succeed in its case, he is entitled to refund of amount given by him to the defendant at the time of execution of the document 14-A/1. He further submitted that although the suit was filed for specific performance of contract and no prayer for refund was made but in view of facts that the defendant has admitted the receipt of Rs. 10,000/- from the plaintiff, therefore, the plaintiff is entitled to get the amount along with interest. In support of his contention learned counsel has cited before me the case of Banshilal Soni(Dead) by L.Rs. v. Kastoor Chand Begani (Dead ) by L.Rs. & Ors. reported in AIR 2007 Supreme Court, 2628. 25. On the other hand, learned counsel appearing on behalf of respondents/ defendant has submitted that as the suit has been filed for specific performance of contract i.e. to execute sale-deed as per agreement 14-A/1 and no relief of refund of earnest money has been claimed, hence, without there being specific relief, order for refund of earnest cannot be passed and the earnest money should be forfeited. In support of his contention leaned counsel has relied on the judgment of Rahat Jan Vs. Hafiz Mohammad Usman, reported in AIR 1983 Allahabad 343. 26. I have considered the rival submissions of counsel for parties. In the case of Banshilal Soni(Dead), (supra)cited on behalf of plaintiff/appellant, the suit was also filed under Specific Relief Act, with a direction to execute sale deed in favour of plaintiff. There was also a prayer for grant of ‘any other relief in the circumstances of the case’ and the Hon’ble Apex Court has held that a bare reading of evidence of the defendants clearly shows that the specific case was of loan and security and not a case regarding refund of earnest money and the direction was given to pay the money. 27. I have also gone through the case Rahat Jan Vs. Hafiz Mohammad Usman, reported in AIR 1983 Allahabad 343, cited on behalf of defendant/respondent. 27. I have also gone through the case Rahat Jan Vs. Hafiz Mohammad Usman, reported in AIR 1983 Allahabad 343, cited on behalf of defendant/respondent. In the cited case it has been held that the plaintiff of the case had failed to get the sale-deed executed without there being any appropriate reason for the same, the order for refund of the earnest money was not passed. 28. The trial court has framed issue No.5 whether the defendant paid Rs. 5000/- to plaintiff as alleged in para 10 of W.S. and decided the issue in negative. The defendant neither filed appeal nor cross-objection before the appellate court, hence this fact remains there that the defendant has not paid the money given to him in loan by the plaintiff. 29. Therefore, as has been held in the preceding paragraphs, the agreement was executed as security in lieu of loan of Rs. 10,000/- and although no specific relief for refund of money was sought in the suit, 12 but clause (l) of relief clause in the plaint to the effect that ‘any other relief, which the court deems fit be awarded’, is there and as such direction for refund of the amount given to defendant by the plaintiff, can be issued and the plaintiff is entitled to get the sum of Rs. 10,000/- along with simple interest @ 9% per annum from the date of execution of agreement paper No. 14-A/1 till the actual of payment. 30. In view of finding given on substantial question of law (C), (E) and (F), and the discussion made, so far as the relief for specific performance of contract in relation to direction to the defendant to execute the sale-deed in favour of plaintiff/appellant is concerned, the appeal is dismissed and the judgment and decree passed by the appellate court, is affirmed. 31. However, it is partly allowed in relation to relief (l) and it is held that the plaintiff/appellant is entitled to get a sum of Rs. 10,000/- from the defendant/respondents (legal representatives of defendant Satish Chandra Garg- since deceased), along with simple interest @ 9% per annum, from the date of execution of agreement dated 29-11-1980, till the date of actual payment.