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2013 DIGILAW 431 (UTT)

Tek Chand v. Jagdish Prakash

2013-07-03

PRAFULLA C.PANT

body2013
JUDGMENT This appeal, preferred under section 96 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 16.09.2003, passed by Additional District Judge/III Fast Track Court, Haridwar, in Original Suit No. 43 of 1999, whereby said court has decreed the suit for specific performance of contract against the defendant. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Brief facts, of the case, are that plaintiff Jagdish Prasad instituted Suit No. 43 of 1999 against the defendant Tek Chand with the pleading that on 08.09.1995, agreement of sale was executed by defendant in favour of the plaintiff for sale of his house situated in Ganeshpur, Roorkee, for an amount of Rs.2,00,000/-. It is further pleaded that an amount of Rs.1,50,000/- was paid by the defendant as part of consideration, and the deed was registered in the office of the Sub-Registrar. It is also pleaded that in terms of the agreement by 08.03.1996, defendant had to execute the sale deed after accepting remaining Rs.50,000/-. It is also alleged by the plaintiff that even after giving notice by him, defendant did not turn up before the Sub-Registrar for accepting Rs.50,000/-, and executing the sale deed, and as such the suit for specific performance of contract was instituted. It is also pleaded by the plaintiff that he was always ready and willing to perform his part of contract. 4. The defendant (present appellant) contested the suit before the trial court and filed his written statement. He pleaded that in the year 1993 defendant had taken a loan of Rs.1,00,000/- from plaintiff. When, with interest, the amount payable swelled to Rs.1,50,000/- the defendant agreed to execute a mortgage deed of his property in favour of the plaintiff. It is further pleaded by the defendant that he did not sign the deed in question as an agreement of sale. He also denied that plaintiff was ready and willing to perform his part of contract. It was further pleaded that defendant gave a notice to the plaintiff to appear on 10.03.1996 before the Sub-Registrar to get executed the sale deed but he (plaintiff) had no arrangement for the payment of remaining amount to be paid as such the plaintiff is not entitled to the relief of specific performance of the contract. 5. It was further pleaded that defendant gave a notice to the plaintiff to appear on 10.03.1996 before the Sub-Registrar to get executed the sale deed but he (plaintiff) had no arrangement for the payment of remaining amount to be paid as such the plaintiff is not entitled to the relief of specific performance of the contract. 5. On the basis of the pleadings of the parties the trial court framed following issues: (i) Whether the defendant executed agreement of sale of the property in suit for a consideration of Rs.2,00,000/- on 08.09.1995, and got it registered? (ii) Whether the defendant accepted Rs.1,50,000/- as part of consideration for sale? (iii) Whether the plaintiff had and is always ready or willing to perform his part of contract? (iv) Whether the deed in question was got signed from the defendant by misleading him and he signed the same treating it deed of security of repayment of loan as alleged in para 9 of his statement, if so, its effect? (v) To what relief, if any, the plaintiff is entitled? 6. After recording evidence, and considering the documents filed by the parties, the trial court decided all the five issues in favour of the plaintiff, and decreed the suit for specific performance of contract. Hence, this appeal. 7. Following are the points of determination in this appeal before this Court: (i) Whether the deed executed by the defendant in favour of the plaintiff was an agreement of sale as pleaded by plaintiff, or a mortgage deed as stated in the written statement? (ii) Whether the plaintiff was always ready or willing to perform his part of contract? 8. Point of determination No. 1 Defendant has not denied his signature in the agreement of the sale paper No. 8A (Ex.1), executed on 08.09.1995. This is a registered document executed before the Sub-Registrar, Roorkee. What has been pleaded by the defendant is that he had obtained a loan of Rs.1,00,000/- in the year 1993 from the plaintiff, and since the amount payable accumulated with interest to Rs.1,50,000/- as such the document signed by him was under the impression that it was a mortgage deed or security for repayment of loan. What has been pleaded by the defendant is that he had obtained a loan of Rs.1,00,000/- in the year 1993 from the plaintiff, and since the amount payable accumulated with interest to Rs.1,50,000/- as such the document signed by him was under the impression that it was a mortgage deed or security for repayment of loan. But said plea of the defendant is totally inconsistent to the amended plea taken by him before the trial court as paras 1A and 3A of the additional pleas in the written statement show that the defendant gave a notice to the plaintiff to appear on 08.03.1996 to get executed the sale deed. That itself shows that the defendant knew as to what document he was signing on 08.09.1995 in favour of the plaintiff. In the circumstances, the trial court has rightly believed testimony of P.W.1 Jagdish Prasad (plaintiff), P.W.2 Samarpal Singh (witness of the deed) and P.W.3 Pramod Kumar (scribe of the deed). D.W.1 Tekchand in his examination-in-chief itself admits that plaintiff Jagdish Prasad offered to buy his (defendants) house for an amount of Rs.2,00,000/-. He further admitted that on the same day agreement of sale was executed. In the above circumstances, after going through the entire documentary and oral evidence on record, this Court finds that the trial court has rightly held that the defendant executed the agreement of sale on 08.09.1995, after accepting Rs.1,50,000/- as part of consideration for sale of his house to the plaintiff for an amount of Rs.2,00,000/- and got the deed registered before the Sub-Registrar. It is nowhere proved on the record that said document was actually mortgage deed or deed of security for repayment of loan. Accordingly, point of determination No. 1 is decided in favour of the plaintiff, and the finding of fact on the issue Nos. 1, 2 and 4 recorded by the trial court are affirmed. 9. Point of determination No. 2 P.W.1 Jagdish Prasad in his examination- in-chief has stated that he was, and still ready and willing to perform his part of contract. To corroborate the oral evidence of P.W.1 Jagdish Prasad, copy of notice has been filed as paper No. 26A along with copy of postal receipt by which notice was sent to the defendant. Document paper Nos. 22A and 24A are the receipts issued by the Sub-Registrar endorsing the presence of plaintiff on 07.03.1996. To corroborate the oral evidence of P.W.1 Jagdish Prasad, copy of notice has been filed as paper No. 26A along with copy of postal receipt by which notice was sent to the defendant. Document paper Nos. 22A and 24A are the receipts issued by the Sub-Registrar endorsing the presence of plaintiff on 07.03.1996. On reading oral evidence of P.W.1 Jagdish Prasad with the above documentary evidence on record, it is clearly established that the plaintiff was and is always ready and willing to perform his part of contract, and the trial court has rightly gave a finding of issue No. 3 in favour of the plaintiff. Accordingly, point of determination No. 2 is also decided in favour of the plaintiff/ respondent. 10. Though, D.W.1 has stated that he gave a notice to the plaintiff to appear on 10.03.1996 before Sub-Registrar for getting the sale deed executed but said bald statement does not appear corroborated from any receipt of presence of the defendant before Sub-Registrar on 10.03.1996, as such the trial court has rightly decreed the suit for specific performance of contract. 11. For the reasons as discussed above, the appeal is dismissed, and the defendant is allowed thirty days time from today to execute the sale deed after accepting remaining part of consideration, as directed by the trial court failing which the plaintiff shall be at liberty to get the sale deed executed by moving execution application before the court concerned. Costs easy. Appeal dismissed.