Judgment: A.K. Shrivastava, J. 1. Feeling aggrieved by the judgment and decree dated 7th March, 1996 passed by learned Second Additional District Judge, Hoshangabad in Civil Suit No. 2-A/1991 whereby the suit of plaintiff-respondent for specific performance of contract has been decreed, this first appeal under Section 96 CPC has been filed by the defendant. In this judgment, wherever the expression 'defendant' is used it would mean first defendant Kishanlal because second defendant, the State of M.P. has been impleaded as formal party in view of Order I Rule 3(B) State Amendment in the CPC. 2. In brief, the suit of plaintiff is that the suit land is 5 acres of agricultural land situated in Mouza Banada, Tehsil Seoni Malwa, District Hoshangabad is owned by appellant-defendant in his Bhumiswami right having possession over it. The defendant approached respondent-plaintiff on 7.3.1990 at Seoni Malwa and expressed his desire to sell 5 acres of his land at the market rate Rs. 10,000/- per acre and the said proposal was accepted by the plaintiff and he asked the defendant to execute a document of agreement of sale and eventually on 7.3.1990 a document of agreement of sale was executed. It is the further case of plaintiff that the sale consideration was agreed between the parties to be Rs. 50,000/- and out of this amount a sum of Rs. 45,000/- was paid on the date of agreement of sale and this has also been embodied in the document of agreement of sale. According to the plaintiff it was agreed between the parties that the balance amount of consideration Rs. 5,000/- shall be paid at the time of execution of the sale deed and it was agreed that the sale deed will be executed on or before 30.6.1990 at the pleasure of the plaintiff. 3. In the plaint it has also been pleaded that the plaintiff is carrying on the business at Banapura and the defendant is the resident of interior village Mouza Banada of Tehsil Seoni Malwa. Further pleading of the plaintiff is that the defendant was desirous to get the suit property sold because he wanted to establish his business at Banapura. 3. In the plaint it has also been pleaded that the plaintiff is carrying on the business at Banapura and the defendant is the resident of interior village Mouza Banada of Tehsil Seoni Malwa. Further pleading of the plaintiff is that the defendant was desirous to get the suit property sold because he wanted to establish his business at Banapura. According to the plaint averments the defendant was not able to manage his land properly and was not getting profits from the disputed land and therefore, out of his entire holdings of agricultural land he was desirous to sell 5 acres of land to the plaintiff. It has been further pleaded in the plaint para 2(b) that because in the vicinity of Seoni Malwa the plaintiff may not get any land @ Rs. 10,000/- per acre as a result of which he accepted the offer of defendant to purchase his 5 acres of land for a consideration of Rs. 50,000/-. The plaintiff also expressed his willingness that immediately he is ready to pay entire sale consideration and is ready to get the sale deed executed, on this the defendant told that although he is ready to execute the sale deed but he has to go out of station and therefore, instead of executing the sale deed and getting it registered a document of agreement of sale may be executed, eventually the aforesaid agreement of sale was executed. 4. In para-3 of the plaint it has been pleaded by the plaintiff that despite the plaintiff orally requested defendant to get the sale deed executed but he tried to avoid it and when it created doubt in the mind of plaintiff that defendant may turn up from his part of contract, he sent a notice by registered A/d post through his counsel on 11.6.1990 asking the defendant to get the sale deed executed on 30.6.1990 and in case this date is not suitable to him, the date which is suitable to him may be intimated so that the sale deed may be executed on that date. This notice of plaintiff was received by defendant on 12.6.1990 but till the suit was filed on 10.12.1990 the sale deed was not executed by the defendant. This notice of plaintiff was received by defendant on 12.6.1990 but till the suit was filed on 10.12.1990 the sale deed was not executed by the defendant. Further it has been pleaded that instead of getting the sale deed executed a false reply was sent by defendant through his counsel Shri D.S. Mandloi in which a false story has been set up but the plaintiff has nothing to do with that story. On the basis of these pleadings the plaintiff had filed suit for specific performance of contract. 5. The defendant-appellant specifically denied the plaint averments. In para-2(a) of the written-statement there is specific pleading of defendant that he never intended to sell his land which is under his cultivation and the details are pleaded in the additional pleading. In this para this fact has also been denied by him that he cannot manage his agricultural land and further denied that he is not deriving any profit from the suit land. The factum of expressing to start a business in Seoni Malwa has also been denied. 6. In the special plea of the written-statement it has been specifically pleaded that he never intended to sell the suit land to plaintiff-respondent No. 1. According to him, in the capacity of Commission Agent of one Vimal Seth who is one of the relative of plaintiff, his 100 bags of grain and also 24 quintals of plaintiffs Alsi (linseed) by loading them in a truck, he carried them to Nagpur at the instance of said Vimal Seth on 1.3.1990 and he delivered the goods as per the instructions of plaintiff and Vimal Seth, to the broker Pramod Kumar of Nagpur who after taking his commission paid a sum of Rs. 45,000/- to the defendant but when he was coming to Seoni Malwa back along with cash amount of Rs. 45,000/- of said Vimal Seth and plaintiff, he was looted and robbed at Nagpur Railway Station by some miscreants. Further it has been pleaded that not only cash amount of Rs. 45,000/- was looted but his wrist watch, chain and rings etc. were also snatched by brandishing knife by those miscreants. Eventually he also lodged a report to the G.R.P. Police Station on the same date on 2.3.1990. Further it has been pleaded that not only cash amount of Rs. 45,000/- was looted but his wrist watch, chain and rings etc. were also snatched by brandishing knife by those miscreants. Eventually he also lodged a report to the G.R.P. Police Station on the same date on 2.3.1990. The broker Pramod Kumar also informed Vimal Seth when he (Vimal Seth) reached to Nagpur but upon a false complaint made by Vimal Seth who is also the near relative of plaintiff, the G.R.P. Police at Nagpur, came to defendant's village Banapura and took the defendant to Nagpur for investigation and pressurised him to pay an amount of Rs. 45,000/- to Vimal Seth, he was also beaten in the police station and on giving undertaking and assurance of making payment Rs. 45,000/- to Vimal Seth and plaintiff the police personnel released him. It has also been pleaded that Vimal Seth who was present at Nagpur gave Rs. 6,000/- as a loan to defendant to pay illegal gratification to the police personnel at Nagpur and the said amount defendant paid to said Vimal Seth when he came back to his village Banapura, but, said Vimal Seth who is in near relation of plaintiff-respondent Ashok Kumar asked defendant to pay an amount of Rs. 45,000/- which was given by the broker Pramod Kumar in cash to him and when he put his inability that at present he is not having that much amount of cash a document of agreement of sale stating therein the consideration of Rs. 45,000/- was executed and threat was given to him that if he does not execute a sale deed they will call the police personnel of Nagpur to take penal action against him and upon this threat of the police and under coercion the document of agreement of sale was executed. According to the defendant in these facts and circumstances the agreement of sale dated 7.3.1990 has no sanctity in the eye of law since it has been obtained under coercion and undue influence and therefore, it has been prayed that the suit be dismissed. 7. Learned Trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit. In this manner this appeal has been filed by the defendant under Section 96 CPC. 8. 7. Learned Trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit. In this manner this appeal has been filed by the defendant under Section 96 CPC. 8. In this case the plaintiff-respondent was personally served and he also appointed counsel but none appeared for him on 3.1.2013 when this appeal was taken up for hearing, as a result of which this Court directed to issue SPC to the plaintiff-respondent since his counsel Shri R.K. Pandey had passed away. The SPC was issued to the respondent-plaintiff for a date of hearing 25.2.2013 but no one appeared on behalf of the respondent. 9. The contention of Shri V.S. Shroti, learned senior counsel is that the story put forth by defendant in additional plea that he was looted by the miscreants at Nagpur on 2nd March, 1990 in which Rs. 45,000/- was looted was found to be proved and in this regard my attention has been drawn to para-22 of the impugned judgment. Hence, according to learned senior counsel the entire episode is to be visualised from this spectrum with the plea of defendant that he was robbed and a sum of Rs. 45,000/- cash and other items like wrist watch, chain and rings etc. were looted at Nagpur is proved and therefore, the case of plaintiff become ex facie false. 10. Another contention of learned senior counsel is that before executing the document (Ex. P-1) the plaintiff never went to the village to examine the suit property which is highly unnatural for an intending purchaser because certainly before purchasing an immovable property one would go and examine the property at the spot. Learned counsel further propounded that the alleged contract of agreement of sale is not workable because the suit land which is 5 acres is only a piece of entire land owned by plaintiff which comprises of 8.515 hectare i.e. 21.04 acres, but, which specific portion of 5 acres was agreed to be sold to the plaintiff there is nothing in the document of agreement of sale. Further it has been contended by him that when 90% of the consideration (Rs. 45,000/-) was paid to the defendant, why directly sale deed was not executed especially when the plaintiff is a businessman and after paying a meager amount of Rs. 5,000/- a sale deed could be executed. Further it has been contended by him that when 90% of the consideration (Rs. 45,000/-) was paid to the defendant, why directly sale deed was not executed especially when the plaintiff is a businessman and after paying a meager amount of Rs. 5,000/- a sale deed could be executed. Learned counsel submits that although in the plaint it has been pleaded that defendant stated that he is going to village, therefore, the sale deed cannot be executed on 7.3.1990 but the plaintiff has not so proved this fact in his evidence when he appeared as PW-1. 11. By hammering the authenticity and hallmark of document of agreement of sale (Ex. P-1) it has been put forth by learned senior counsel that there is nothing in the document that the defendant was in need of money or the disputed property was not in his use and it was lying idle. 12. It has been further contended by learned senior counsel that although putting signature upon the document of agreement of sale dated 7.3.1990 (Ex. P-1) is admitted by the defendant, but, he never intended to sell his suit property and looking to the pleadings made in the written-statement as well as the case of coercion and undue influence set up by him in additional plea of the written-statement, the suit of plaintiff for specific performance of contract cannot be decreed. The contention of learned senior counsel is that there was no prior negotiation before executing the document of agreement of sale (Ex. P-1) and directly and straightway the document of agreement of sale was executed on 7.3.1990. Learned counsel by inviting my attention to the evidence of plaintiff (PW-1) who has deposed that 7 days earlier to the execution of the document of agreement of sale the plaintiff had gone to the defendant's village to negotiate with him. But, this evidence cannot be relied upon for two reasons. Firstly there is no pleading to that effect of plaintiff, and secondly during those days the defendant had gone to Nagpur where he was looted and FIR (Ex. D-1) of G.R.P. Police Station Nagpur is on record where the entire incident has been narrated including that a sum of Rs. But, this evidence cannot be relied upon for two reasons. Firstly there is no pleading to that effect of plaintiff, and secondly during those days the defendant had gone to Nagpur where he was looted and FIR (Ex. D-1) of G.R.P. Police Station Nagpur is on record where the entire incident has been narrated including that a sum of Rs. 45,000/- has been looted by miscreants from defendant and therefore, in these facts and circumstances if under coercion and under pressure of said Vimal Seth and plaintiff the document of agreement of sale has been executed it cannot be given effect to. Learned counsel submits that although said Vimal Seth is not the signatory of impugned document (Ex. P-1) and he also did not sign as an attesting witness but in the evidence of the defendant it is borne out that he was throughout present when the document of agreement of sale was being executed. In this regard my attention has also been drawn to the evidence of scribe of the document Radheyshyam Anjane (DW-2) who has categorically stated that Vimal Seth was also all the time present when the document of agreement was being prepared and typed by him. This witness has also signed Ex. P-1 in the capacity of the scribe. The contention of learned senior counsel is that if the story and defence of coercion and duress which is put forth by defendant is not true why throughout said Vimal Seth was present at the time of the preparation of Ex. P-1 till it was typed by the scribe. 13. It is further contended that name of Vimal Seth as well as of plaintiff is mentioned in the FIR (Ex. D-1) and therefore, it can be inferred that on account of giving threat, coercion, duress and undue influence the defendant put his signature on the impugned document (Ex. P-1). Learned senior counsel has placed heavy reliance upon the decision of this Court Koze and another v. Makhan Singh, 1973 JLJ 671 wherein the principle how the plea of undue influence can be proved, is laid down and this decision is squarely applicable in the present factual scenario. P-1). Learned senior counsel has placed heavy reliance upon the decision of this Court Koze and another v. Makhan Singh, 1973 JLJ 671 wherein the principle how the plea of undue influence can be proved, is laid down and this decision is squarely applicable in the present factual scenario. By further placing heavy reliance on para-12 of the decision of Delhi High Court Kishan Lal Kalra v. N.D.M.C., AIR 2001 Delhi 402 it has been contended that by playing fraud and coercion of MISA the document was executed and it was held that the contract cannot be given effect to. Learned counsel has also placed reliance upon the single Bench decision of this Court Mhow Hosiery Pvt. Ltd. vs. Jitendra Nirlan Singh, 2005 (3) M.P.L.J. 179 and the decision of Mysore High Court T.G.M. Asadi and Sons v. The Coffee Board and another, AIR 1969 Mysore 230 and latest pronouncement of the single Bench decision of this Court in Kashiram vs. Mitthulal and another, 2013 (1) M.P.H.T. 388. 14. Lastly it has been submitted by learned senior counsel that learned Trial Court has wrongly drawn adverse inference against the defendant for not examining Vimal Seth. According to learned senior counsel, looking to the defence which has been set up by defendant in his additional plea since Vimal Seth played a vital role adverse to the interest of defendant, no adverse inference could be drawn against him for his non-examination and further according to learned senior counsel how in these circumstances the defendant could examine him. On these submissions it has been prayed by learned senior counsel for the appellant defendant that by allowing this appeal the impugned judgment decreeing the suit of plaintiff for specific performance of contract be set aside and the suit be dismissed. 15. Despite the respondent No. 1 plaintiff has been after having sent SPC to him, no one has put appearance for him. Having heard learned senior counsel for the appellant and after going through the record throughly I am of the view-that this appeal deserves to be allowed. 16. On the basis of the arguments placed by learned senior counsel for the appellant the following question emerges:- Whether the document of agreement of sale (Ex. P-1) dated 7.3.1990 was executed under coercion and undue influence by giving threat to defendant to arrest him by the police? Regarding the question: 17. 16. On the basis of the arguments placed by learned senior counsel for the appellant the following question emerges:- Whether the document of agreement of sale (Ex. P-1) dated 7.3.1990 was executed under coercion and undue influence by giving threat to defendant to arrest him by the police? Regarding the question: 17. Since the plea of coercion and undue influence has been taken by defendant-appellant in the additional plea of the written-statement the burden of proof is upon him and therefore, this Court will examine the evidence of defendant as well as of plaintiff in order to ascertain whether this plea has been proved. 18. The pleading of defendant and the story which he has set up in his additional plea of the written-statement that he was looted and robbed at Nagpur Railway Station has been very much found to be proved by learned Trial Court in para-22 of the impugned judgment. Hence, the entire episode and the case is to be visualised inter alia from this spectrum. Before I advert myself to the basic document of the case i.e. agreement of sale (Ex. P-1), it would be profitable to go through the contents of the important document FIR dated 2.3.1990 (Ex. D-1) lodged by the defendant at Nagpur. This document is a true copy given under the signature of Sub-Inspector Lohmay Police Station, Nagpur and the defendant by examining Head Constable No. 857, Ram Rao (DW-4) of that Police Station the original FIR was summoned and it was brought by this constable and the same has also been proved by him. From this document it is proved that upon the report of defendant a case under Section 392 IPC was registered against unknown persons. This witness has deposed that Ex. D-1 is the copy of the original. In the FIR it has been specifically stated that on 1.3.1990 the defendant in a truck carried 100 bags of grain of Vimal Seth and 24 quintals of plaintiffs Alsi (linseed) and these goods were sold to broker Pramod Kumar for Rs. 45,000/- and the said cash amount of Rs. 45,000/- (the details of the currency notes are also mentioned in the FIR) was handed over to defendant. Thereafter, he arrived at the Railway Station and inquired about the position of the train Chhattisgarh Express which was reported to be late. 45,000/- and the said cash amount of Rs. 45,000/- (the details of the currency notes are also mentioned in the FIR) was handed over to defendant. Thereafter, he arrived at the Railway Station and inquired about the position of the train Chhattisgarh Express which was reported to be late. The defendant felt to ease as a result of which nearby a corner of wall he went to ease. At that juncture, some miscreants came and looted the cash amount as well as wrist watch, chain and rings etc. of the defendant. The learned Trial Court has already found this plea of defendant to be proved in para-22 of the impugned judgment. In the FIR the names of Vimal Seth and plaintiff are mentioned with further averments that defendant sold the goods of these two persons to said Pramod Kumar. 19. Now coming back to the execution of agreement of sale (Ex. P-1), this Court finds that in this document specifically it has been mentioned that defendant is having huge agricultural land comprising of 21.04 acres and out of this huge land only a part of 5 acres he agreed to sell to the plaintiff. In this document it is not mentioned that defendant is in need of money or the land was lying idle and therefore, he is entering into agreement of sale with the plaintiff. There is nothing in this document that from the sale price he will establish his business at Banapura. It has also not been mentioned in this document that defendant is unable to manage the suit property and is not earning any profit from the agricultural land which is agreed to be sold. But, to bring out a full proof case, averments are pleaded in para 2(a) of the plaint by plaintiff with uttermost object that his suit of specific performance may be decreed. But, all these pleadings have not at all been proved by the plaintiff when he appeared in witness box as PW-1. In his entire statement there is no whisper that defendant wanted to establish a business at Banapura or he is unable to manage the land in question and further he is not obtaining any profit from the suit land which is a part of huge agricultural land owned by defendant. In his entire statement there is no whisper that defendant wanted to establish a business at Banapura or he is unable to manage the land in question and further he is not obtaining any profit from the suit land which is a part of huge agricultural land owned by defendant. Hence, the plea which has been raised by plaintiff in para-2(a) of the plaint has not at all been proved either in his testimony or from document of agreement of sale (Ex. P-1) itself. Thus, when it is not proved that defendant was in need of money or the suit land was lying idle and further he was earning profit from, it by obtaining crops why it has been agreed to be sold by defendant to plaintiff, there is no explanation of the plaintiff in this regard. At this juncture only I would like to mention here that defendant in his deposition when he appeared as DW-1 has categorically stated that he is deriving profit from his agricultural land which is 21.04 acre. There is nothing in the evidence of plaintiff that out of total area of agricultural land only the suit land which comprises of 5 acres only is not fetching any profit and therefore, for this reason also it creates heavy doubt in the mind of the Court that when defendant was drawing profit from the agricultural land and when he was not in need of money to establish some business in Banapura why he will sell the suit property which is less than ¼th portion of his entire holding. It is not the case of plaintiff that in order to establish business and to become a businessman the defendant who is an agriculturist was desirous to sell his entire agricultural land 21.04 acres. On the other hand, his case is that only a part of land was agreed to be sold to him. Hence, I am of the view that when the plaintiffs evidence is totally silent that the defendant was not deriving any profit from the suit land and defendant's evidence is that he is deriving full profit from it and also the document of agreement of sale is silent on this point it can be inferred that the document of agreement of sale is surrounded by heavy dark clouds. 20. 20. On bare perusal of the pleadings of the plaintiff and by paying heed to para 2(b) of the plaint that straightway on 7.3.1990 the defendant came to the work place of plaintiff who is a businessman and is carrying on business in Banapura and interacted with plaintiff and offered him to purchase the land in question and immediately it was agreed by the plaintiff and document of agreement of sale was executed on the same day only i.e. 7.3.1990. Surprisingly if the total consideration of the suit land was Rs. 50,000/- and an amount of Rs. 45,000/- which is 90% of the alleged consideration was paid on 7.3.1990 only, why directly sale deed was not executed. The explanation which has been given in para 2(b) of the plaint by the plaintiff is that because the defendant stated that he is going to village on that day, therefore, today i.e. 7.3.1990 he cannot execute the sale deed. But, this fact is totally missing from the evidence of plaintiff (PW-1) and therefore, this plea which he has pleaded in the plaint is also not proved. Apart from this, on bare perusal of para 2(c) of the plaint this Court finds that there is specific pleading of plaintiff that on 7.3.1990 when the document of agreement of sale was executed, plaintiff and defendant went to Tehsil Kachehari at Seoni Malwa and a document of agreement of sale was executed. It be noted that the document is on Rs. 5/- stamp paper. If they had gone to Kachehari (a premises comprising different Courts including the office of Sub-Registrar) why the sale deed was not executed in the office of the Sub-Registrar which is also situated in the same locality. Thus, this is an another circumstance in order to hold that there is something black in the bottom and document of agreement of sale becomes highly suspicious. 21. At this juncture only it would be quite relevant to mention here that in the examination-in-chief para-2 the plaintiff himself has stated that he is not at all related to the incident pleaded by the defendant in written-statement which is in regard to the defendant being looted by the miscreants at Railway Station, Nagpur when he was coming back after selling plaintiffs linseed and 100 gunny bags of grain of Vimal Seth. Thus, the plaintiff has admitted that defendant went to sell his linseed and also the grain of Vimal Seth. In cross-examination para-3, plaintiff has admitted that defendant used to sit at the work place of Vimal Seth. In cross-examination para-4 again he has admitted that it is in his knowledge that while returning back from Nagpur he was looted. Although the suggestion put to him that Vimal Seth is related to plaintiff has been denied by him. But the scribe of document (Ex. P-1) Radheyshyam Anjani (DW-2) has specifically stated that along with plaintiff, Vimal Seth also came and except these two persons nobody came to him to write this document which would mean neither the defendant nor attesting witnesses were there. Specifically the scribe (DW-2) says that defendant was not there and he did not sign before him nor Rs. 45,000/- was paid to him. 22. Another important circumstance in order to hold that defendant never intended to sell suit property (which is less than 114th of his entire agricultural land) is that normally intending purchaser will never purchase an immovable property without examining it. According to the plaint averments directly the suit property was agreed to be sold on 7.3.1990 when the defendant approached the plaintiff. There is nothing in the pleadings that any prior negotiation took place between the plaintiff and defendant but when the plaintiff was cornered in the cross-examination and he faced a tight situation he has deposed in cross-examination para-5 that he has seen the suit land in the year 1988-89. Surprisingly when there was no prior negotiation as per the pleading of plaintiff why he did go to the village where defendant's agricultural land is situated and examined the suit property. According to me, unless and until there is prior meeting of mind to sell the suit property why a businessman will go to a remote village and examine the suit property and that too two years prior to the date of agreement of sale which according to the plaintiff straightway executed when defendant approached him on that date only. 23. According to me, unless and until there is prior meeting of mind to sell the suit property why a businessman will go to a remote village and examine the suit property and that too two years prior to the date of agreement of sale which according to the plaintiff straightway executed when defendant approached him on that date only. 23. Another strong circumstance which creates heavy doubt on the authenticity and hallmark of document of agreement of sale is that as per plaintiffs own case which he pleaded in para 2(a) and (b) of the plaint is that defendant is not deriving any profit from the suit land and further the land in question is of inferior quality because it is far away from Narmada river, but, when the plaintiff was cornered during the cross-examination in para-5 he has admitted that the suit property is adjacent to river Narmada and is also growing good crop. Thus, again the pleadings of the plaintiff is contrary to his evidence and is not proved. 24. Another circumstance which is carved out from the testimony of plaintiff in order to hold that the document of agreement of sale in the manner and fashion it is written is highly suspicious is that as per the document (Ex. P-1) and the evidence of plaintiff Ashok Kumar (PW-1) an amount of Rs. 45,000/- was paid in cash as advance money to the defendant on the date of the execution of document (Ex. P-1). Normally, this figure of Rs. 45,000/- may not have any significance, but, in the present case this figure is very much material in order to test the plea of coercion and undue influence. It be noted that an amount of cash Rs. 45,000/- was looted while the defendant was robbed at Nagpur and this figure finds place in the FIR (Ex. D-1) also by stating therein that this cash amount of Rs. 45,000/- was paid to the defendant towards the price of the grain and linseed of Vimal Seth and plaintiff Ashok Kumar. The names of these two persons are also mentioned in the document of FIR (Ex. D-1). Hence, this is one more circumstance to hold that by giving threat to the defendant of arrest by the police the cash amount which was looted and robbed from the appellant has been figured in Ex. P-1 towards advance money. 25. The names of these two persons are also mentioned in the document of FIR (Ex. D-1). Hence, this is one more circumstance to hold that by giving threat to the defendant of arrest by the police the cash amount which was looted and robbed from the appellant has been figured in Ex. P-1 towards advance money. 25. The plea of coercion and undue influence by putting the defendant-appellant in the fear of arrest and humiliation by the police while procuring the document of agreement of sale (Ex. P-1) by Vimal Seth and plaintiff is also proved from the evidence of defendant when he appeared as DW-1. There is specific evidence of defendant of giving threat of his arrest by the police by exercising undue influence and coercion by Vimal Seth. Further he has deposed that when he came to Banapura he found that Vimal Seth was informed by Pramod Kumar about the incident as a result of which said Vimal Seth firstly had gone to G.R.P. Nagpur and thereafter arrived at Banapura along with two constables of G.R.P. who carried defendant during the odd hours at night at 2:00 a.m. to Hoshangabad and from where he was brought to Nagpur. At Nagpur he was beaten by the G.R.P. police personnel and insisted him to return the cash amount to Vimal Seth and to pay Rs. 6,000/- to the police personnel. He has further deposed that because he was not having any cash with him at that time he borrowed money of Rs. 6,000/- from Vimal Seth and that amount was given to G.R.P. police personnel and he came back to Banapura along with Vimal Seth. In para-6 of his deposition he has also deposed that after coming back to Banapura, Vimal Seth carried him to plaintiffs place where plaintiff on a document of Rs. 51 - stamp paper which was ready and directed him to sign it. The scribe, Radheyshyam Anjane (DW-2) has also said that when he typed the document (Ex. P-1) at that time only plaintiff Ashok Kumar and Vimal Seth were there. The defendant has further deposed at that time he did not intervene because he was under fear and was mentally disturbed because he was ill-treated and beaten by the police personnel of Nagpur. He has also further deposed that an amount of Rs. P-1) at that time only plaintiff Ashok Kumar and Vimal Seth were there. The defendant has further deposed at that time he did not intervene because he was under fear and was mentally disturbed because he was ill-treated and beaten by the police personnel of Nagpur. He has also further deposed that an amount of Rs. 45,000/- was never paid to him and G.R.P. Police Nagpur gave threat to him that in case he will not pay Rs. 45,000/- he will be arrested and therefore, he put his signature on Ex. P-1. Indeed, this plea has been taken by the defendant in the additional plea of his written-statement and despite it has been proved from his examination-in-chief, but, no cross-examination on this very vital piece of evidence was made by the plaintiff. Hence, according to me, this part of important evidence which goes to the root of the matter to prove the plea of coercion and undue influence stands unrebutted. The evidence of defendant is corroborated by the evidence of scribe Radheyshyam Anjane (DW-2) and according to me, he is an independent witness because he is a petition writer and is carrying his job in the Tehsil office premises. This witness is also the signatory of the impugned document (Ex. P-1) as he has signed the document in the capacity of scribe and he has also proved his signature upon it. This witness has also deposed that plaintiff and Vimal Seth came to him and got a document of agreement of sale prepared and typed because they do not know how and what is to be written in a document of agreement of sale. He has specifically deposed that except these two persons third person was not there. This witness after typing the document of agreement of sale handed over it to the plaintiff. In very specific words this witness has deposed that the two attesting witnesses Trilok Kothari (PW-2) and Rambabu (DW-3) were not present and defendant was also not present. 26. Looking to the aforesaid circumstances and pleadings of defendant which are proved from the evidence discussed hereinabove in detail, one can infer that the defendant was threatened by putting him into fear of his arrest by the police and under coercion and undue influence he put his signature upon the document of agreement of sale (Ex. P-1). 26. Looking to the aforesaid circumstances and pleadings of defendant which are proved from the evidence discussed hereinabove in detail, one can infer that the defendant was threatened by putting him into fear of his arrest by the police and under coercion and undue influence he put his signature upon the document of agreement of sale (Ex. P-1). There is a specific evidence of defendant that he was brutally beaten by G.R.P. police persons in the presence of Vimal Seth. Thereafter, when he came back to Banapura, Vimal Seth carried him to the house of plaintiff Ashok Kumar where the document of agreement of sale (Ex. P-1) which was already ready, was directed to be signed by defendant. 27. In the above circumstances, the role of Vimal Seth becomes very vital and how the defendant could have examined said Vimal Seth in his evidence. Even if the defendant would have examined him, certainly he would not have deposed in favour of defendant and therefore, according to me, the learned Trial Court erred in drawing adverse inference against defendant for not examining Vimal Seth in his evidence. 28. The presence of Vimal Seth while executing the document of agreement of sale has been denied by the plaintiff when the suggestion was given to him in his cross-examination para-5. But the independent witness, petition writer (scribe) DW-2 has specifically deposed that on the insistence of Vimal Seth and plaintiff he typed the document of agreement of sale (Ex. P-1). According to defendant, when the document (Ex. P-1) was executed, apart from him and defendant the attesting witnesses namely Trilok Kothari (PW-2) and Rambabu (DW-3) were present. A suggestion given to plaintiff in cross-examination para-6 that by joining his hands along with Vimal Seth by putting the defendant in fear of arrest the document (Ex. P-1) was procured but it has been denied. However, looking to the evidence of the scribe, when the document (Ex. P-1) was being prepared Vimal Seth was present and to me the evidence of scribe (DW-2) is more reliable and thus it can be inferred that if Vimal Seth had nothing to do with the impugned transaction why he was throughout present at the time of the preparation of Ex. P-1 till it was typed and why he (Vimal Seth) came with the plaintiff. P-1 till it was typed and why he (Vimal Seth) came with the plaintiff. Thus, it is apparent that the evidence of plaintiff and the attesting witnesses who have denied the role of Vimal Seth becomes unreliable. According to me, when there is specific plea in the written-statement and which has been proved by the defendant in his evidence by dismantling the evidence of plaintiff and his witnesses and there is no cross-examination on behalf of plaintiff, it shows that the evidence of defendant on this vital point is unrebutted and if the evidence of plaintiff and defendant is marshaled in the aforesaid circumstances, the evidence of defendant is found to be more reliable. Had the coercion and undue influence would not have been exercised by the plaintiff and Vimal Seth certainly there would have been cross-examination upon the defendant on this important evidence. Learned Trial Court has failed to consider has important aspect of the matter particularly when it has been found that the defence of defendant of loot has been proved (see para-22 of the impugned judgment). At the cost of the repetition I may again reiterate here that in the FIR (Ex. D-1) the name of plaintiff Ashok Kumar and that of Vimal Seth is mentioned and it is specifically averred in the FIR that the defendant was carrying a cash Rs. 45,000/- of these two persons. 29. The term coercion has been defined in Section 15 of the Indian Contract Act, 1872 and for ready reference I would like to quote the said provision which reads, thus:- 15. "Coercion" defined.-"Coercion" is the committing, or threating to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Explanation - It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed. If the facts and circumstances and the evidence of the parties and by paying heed to the plea of coercion and undue influence which is also found to be proved on account of unrebutted testimony of defendant in this regard, according to me, the suit cannot be decreed. If the facts and circumstances and the evidence of the parties and by paying heed to the plea of coercion and undue influence which is also found to be proved on account of unrebutted testimony of defendant in this regard, according to me, the suit cannot be decreed. According to me, a threat of bringing a criminal charge does not amount to coercion as it is not per se forbidden by penal law but threat of bringing a false charge and when it was materialized by carrying the defendant to Nagpur where he was beaten by G.R.P. Police with an object to get the document of agreement of sale procured it would amount to coercion and in this regard decision of Delhi High Court placed reliance by learned counsel for the appellant is applicable in the present case. In this decision by giving threat to get arrested in MISA the contract was made and the Delhi High Court held that said contract cannot be acted upon. 30. Thus, in the aforesaid circumstances, it can be said that even if consent of the defendant was obtained and his signature was obtained upon the document of sale (Ex. P-1), because it was procured under coercion of threat of unlawful detention, this document (Ex. P-1) cannot be given effect to by decreeing the suit. I may further add that act of violence is coercion if it relates to a person intended to be harmed and there is an actionable wrong at his suit. In this regard, Halsbury's Laws of England, 4th Edition Volume 45, para-1524 at page 718 may be seen and for ready reference I would like to quote that relevant para as under: 1524. Inducement and intimidation, coercion etc. Although it is not an actionable wrong for an individual merely to induce a person not to serve or not to employ another when no breach of contract is caused, yet, if the inducement is accompanied by illegal means, such as violence, intimidation, coercion, obstruction, molestation, fraud or misrepresentation, and damage results to a person intended to be harmed, there is an actionable wrong at his suit. 31. 31. To me, the covenants in a deed are ineffective where the consent of one of the parties to the deed has been obtained by fraud or coercion and where one of the parties has repudiated his or her obligations under the deed, and elected to treat it as a nullity, the other party is not bound by the covenants and in this regard I would like to quote the relevant portion of para 696-700 of Halsbury's Laws of England, 4th Edition Volume 13, at page 340, which reads thus:- 696-700. Covenants in a deed: when ineffective. Covenants in a deed are ineffective where the consent of one of the parties to the deed has been obtained by fraud or coercion; and where one of the parties has repudiated his or her obligations under the deed, and elected to treat it as a nullity, the other party is not bound by the covenants. Thus, according to me, a contract (in the present case Ex. P-1) obtained by means of coercion by one party over the other, it is a voidable contract, if not void. If the aforesaid analogy is applied in the present factual scenario and is kept in juxtaposition to the pleadings and particularly when there is unimpeachable and uncrossed testimony of defendant, a clear case of obtaining impugned document of agreement of sale by exercising coercion is made out. 32. The term coercion has also been explained in Law of Lexicon by P. Ramanatha Aiyar 4th Edition 2010 page 1223, which reads as under:- To constitute coercion or duress, there must be some actual or threatened exercise of power, possessed or believed to be possessed, by the party coercing over the person and property of another. Actual violence is not necessary to constitute coercion; imaginary terrors may be sufficient for that purpose. (Boyse v. Rossborough, 6 HL Case 2, 48). In Black's Law Dictionary 9th Edition page 294, the expression 'coercion' has been explained as under:- coercion. Compulsion by physical force or threat of physical force. An act that must be voluntary, such as signing a will, is not legally valid if done under coercion. And since a valid marriage requires voluntary consent, coercion or duress is grounds for invalidating a marriage. 33. Under Section 72 of the Indian Contract Act, 1872 also the expression 'coercion' has been mentioned. An act that must be voluntary, such as signing a will, is not legally valid if done under coercion. And since a valid marriage requires voluntary consent, coercion or duress is grounds for invalidating a marriage. 33. Under Section 72 of the Indian Contract Act, 1872 also the expression 'coercion' has been mentioned. This section pertains to liability of person to whom the money is paid, or thing delivered by mistake or under coercion. According to this section, a person to whom money has been paid or anything delivered, by mistake or under coercion must repay or return it. By applying this section to the present case in hand, if the plaintiff would have obtained some money or anything by keeping the defendant under coercion, certainly he was liable to repay or return it. In the present case, the document of agreement of sale (Ex. P-1) has been obtained by keeping the defendant under coercion and therefore, the plaintiff is not entitled to enforce any specific performance of contract of this document. 34. The case of defendant would also come under the expression "undue influence" as defined under Section 16 of the Indian Contract Act, 1872, which reads thus:- 16. 'Undue influence' defined.-(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another- (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872). The term "undue influence" has also been explained in Corpus Juris Secundum Vol. 26 page 761, which reads as under:- Undue influence invalidates a deed procured thereby and generally speaking consists in a wrongful influence so exerted over the grantor as to rob him of free agency and to substitute the will of another for that of the grantor. Influence which is not undue, such as that arising from affection or from fair argument, does not destroy the validity of a deed. By testing the plea of undue influence' taken by defendant in the additional plea and looking to his unimpeachable and unrebutted testimony it is gathered that because plaintiff and Vimal Seth were in dominating position to procure impugned document of agreement of sale (Ex. P-1) by giving threat to arrest defendant by Police of Nagpur and therefore, according to me, the plea of 'undue influence' has also been duly proved from the unimpeachable and uncrossed testimony of the defendant. 35. The Supreme Court in Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others, AIR 1967 SC 878 has laid down the test how the undue influence is to be proved. According to the Apex Court, the Court trying the case of undue influence must consider two things; (1) relation with the parties to each other must be such that one is in a position to dominate the will of other and (2) once the position is substantiated the second stage would reach to the issue where the contract has been obtained by undue influence. Since there is overwhelming evidence that the plaintiff and Vimal Seth were in dominating position over the defendant by giving threat to be arrested by the police and not only this he was also carried to G.R.P. Police Station where the police personnel had beaten him, I am of the view that the plaintiff was in dominating position along with Vimal Seth and thereafter if document of agreement of sale (Ex. P-1) has been procured it was on account of undue influence. The decision of this Court in Koze (supra) placed reliance by learned senior counsel for the appellant is applicable in the facts and circumstances of the case. P-1) has been procured it was on account of undue influence. The decision of this Court in Koze (supra) placed reliance by learned senior counsel for the appellant is applicable in the facts and circumstances of the case. Another decision of this Court Mhow Hosiery Pvt. Ltd. (supra) is also applicable because in that case the Company was in financial crisis and to get rid off its workers exercised undue influence and coercion and thereby obtained resignation of 200-250 workers, in that situation it was found that the resignations were not voluntary. 36. According to me, when the impugned document of agreement of sale has been obtained by plaintiff on account of exercise of coercion and undue influence, therefore, in these circumstances because it gives plaintiff an unfair advantage over the defendant, the Court may refuse specific performance and further because it will be inequitable in such facts and circumstances to enforce specific performance. Indeed, for this only purpose Section 20(2) of the Specific Relief Act, 1973 has been enacted. Sub-section (1) of Section 20 of the Specific Relief Act empowers the Court to exercise discretion of specific performance and further gives power that the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court should not be exercised arbitrarily and should be exercised on sound and reasonable manner guided by judicial principles and capable of correction by a court of appeal. Thus, according to me, the discretionary power to decree the suit has not been exercised by learned Trial Court on the grounds which are not guided by judicial principles and they are also not reasonable and therefore, the discretion exercised in decreeing the suit can be corrected by this Court in appeal. In these facts and circumstances, I am unable to uphold the decree of specific performance of contract. 37. The question which I framed for its determination is accordingly decided and answered in favour of defendant-appellant. Resultantly, this appeal stands allowed, the impugned judgment and decree passed by learned Trial Court is hereby set aside and the suit of specific performance of contract is hereby dismissed. Since no one has put appearance on behalf of the respondent, the appellant shall bear his own cost. Counsel fee, according to Schedule, if pre-certified.