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2014 DIGILAW 779 (PNJ)

Jagdish Parshad v. Ishwar Singh

2014-05-05

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J. (Oral):- Respondents No.1 and 2 filed the instant suit seeking decree of specific performance of an agreement dated 20.02.2003 pleading that the appellant-Jagdish Parshad had entered into the aforesaid agreement with them to sell the suit land for a sum of Rs.1,00,000/- and received Rs.78,000/- as earnest money in the presence of witnesses and agreed to receive remaining amount of Rs.22,000/- at the time of execution and registration of the sale deed which was agreed to be registered and executed on or before 20.08.2003. It was averred that possession of the suit land was given to respondents No.1 and 2 as per agreement. They were ready and willing to perform their part of agreement in the third week of August, 2003. They requested the appellant to execute and get the sale deed registered in their favour on receipt of remaining sale consideration of Rs. 22,000/- and they also tendered the balance sale consideration of Rs. 22,000/- but neither the appellant returned the earnest money of Rs. 78,000/- nor executed and registered the sale deed in their favour. They remained present in the office of Sub Registrar, Narnaul on the stipulated dated but appellant failed to turn up. A legal notice dated 20.8.2003 was also served upon him to execute the sale deed in their favour within 15 days of the receipt of the notice, but appellant failed to do so. Hence the present suit. 2. Upon notice, the defendant appeared and filed written statement controverting the averments of respondents No.1 and 2 raising various preliminary objections. On merits, execution of the agreement and receipt of earnest money was denied. It was pleaded that appellant had borrowed Rs.70,000/- which was agreed to be repaid along with interest of Rs. 8,000/-to respondent No.1 upto 20.08.2003. 3. On the basis of the pleadings of the parties, following issues were framed:- i) Whether the defendant agreed to sell the suit land to the plaintiffs vide agreement dated 20.02.2003? OPP ii)Whether defendant received Rs. 78,000/- as earnest money at the time of agreement? OPP iii)Whether plaintiffs have always been ready and willing to perform their part of contract? OPP iv)Whether the suit is not maintainable in the present form? OPD v)Whether plaintiffs are estopped from filing the present suit by their own act and conduct? OPD vi)Whether plaintiffs have no locus standi to file the present suit? OPD vii)Relief. OPP iii)Whether plaintiffs have always been ready and willing to perform their part of contract? OPP iv)Whether the suit is not maintainable in the present form? OPD v)Whether plaintiffs are estopped from filing the present suit by their own act and conduct? OPD vi)Whether plaintiffs have no locus standi to file the present suit? OPD vii)Relief. 4. After recording the evidence and hearing learned counsel for the parties, trial Court decreed the suit of the plaintiffs vide judgment and decree dated 8.6.2007. 5. Feeling dissatisfied with the aforesaid judgment and decree of the trial Court, defendant preferred an appeal before the First Appellate Court which was also dismissed vide judgment and decree dated 19.11.2009. 6. While dismissing the appeal and upholding the judgment and decree of the trial Court, First Appellate Court observed as under:- “During the course of arguments, execution of the agreement was not disputed rather learned counsel for the appellant tried to interpreted the agreement Ex.PI as a document executed to secure back the amount of loan and it was contended that under the agreement there was no intention for sale and purchase. The agreement Ex.P1 reflects that the appellant agreed to sell the disputed land to the palintiffs for a sum of Rs. one lakh and Rs.78,000/- were paid as earnest money and Rs.22000/-were to be agreed to be paid at the time of execution and registration of the sale-deed on or before 20.8.2003. However, in the agreement there are averments that possession has been transferred and it has been further agreed that in case the amount of Rs.78000/- is returned back on or before 20.8.2003 the agreement shall be deemed to have been cancelled. Merely by inserting this clause no inference can be drawn that there was no intention for sale and purchase of the land under the agreement as in the agreement there are averments that actual possession has been delivered on the spot. Merely by inserting this clause no inference can be drawn that there was no intention for sale and purchase of the land under the agreement as in the agreement there are averments that actual possession has been delivered on the spot. If actual possession was delivered under the agreement the intention of the parties is clear and it was agreed that agreement would be deemed to have been cancelled, the earnest money would be returned back then the agreement cannot be termed to be a document executed merely securing back the loan amount and the averments regarding delivery of possession is clear intention of the parties and as per admitted case of the parties even before the due date for getting the sale-deed executed the amount was not returned back. The appellant/defendant Jagdish Parshad appeared as DW2 and claimed that a loan of Rs.70000/- was taken and total amount of Rs.78000/- along with interest was to be returned upto 20.8.2003 and on this transaction the agreement was procured. However, in the cross-examination, it was admitted that in case the amount is not returned back upto 20.8.2003 the plaintiffs would be at liberty to recover the amount from the land but such averments are not there in the agreement and DW2 again admitted that he is not in a position to repay the amount and also admitted that the plaintiff gave a notice Ex.P4 and there was a talk for extending the time but the plaintiffs refused to extend the date and the amount was not returned even after receipt of the notice. Now in view of the depositions, it is clear that Ex.P1 was not executed for securing back the amount of loan rather the agreement Ex.P1 was executed for sale of the land and appellant/defendant agreed to sell the land to the plaintiff. However, there was stipulation that in case the earnest money is returned back before 20.8.2003 the agreement would be deemed to have been cancelled. 10. As per admitted case of the parties the amount could not be returned as stipulated in the agreement and as such merely on account of deemed cancellation of the agreement incase the amount is returned the agreement cannot be termed to be a document securing back the loan advanced and agreement reflects the clear intention of the parties was to execute an agreement to sell.” 7. Still not satisfied, defendant has filed the instant appeal challenging the judgments and decrees of the Courts below submitting that following substantial questions of law arise for consideration of this Court:- i) Whether the judgments and decrees of both the Courts below are illegal and against the evidence on record and liable to be set aside? ii)Whether the learned Courts below rightly appreciated the document Ex.P1? iii)Whether manifest injustice has been caused to the appellant? 8. Counsel for the appellant has relied upon a recital in the agreement to sell in question, wherein it has been mentioned that in case the appellant returns the amount of Rs. 78,000/- before the stipulated date, the agreement to sell in question shall be treated as cancelled. 9. On the basis of the aforesaid recital, it has been argued that the said recital clearly demonstrates that intention of the parties was not to execute the agreement to sell but the document was executed as a collateral security to secure the loan of Rs.70,000/- along with interest. 10. However, the contention raised on behalf of the appellant cannot be accepted as the agreement Ex.P1 reflects that the appellant had agreed to sell the suit land for a sum of Rs.1,00,000/- and received Rs.78,000/- as earnest money and had further agreed to receive the balance amount at the time of execution and registration of sale deed on or before 20.08.2003. The agreement further recites that the appellant had delivered the possession of the suit property in favour of the plaintiff-respondents. Merely by inserting a clause giving an opportunity to the appellant to return the amount of Rs. 78,000/- before 20.08.2003, the agreement shall be deemed to be cancelled, the document cannot be termed to be a document executed merely to secure the loan advanced by the aforesaid clause. No inference can be drawn that there will be no intention for sale and purchase of the land under the agreement as there are averments that actual possession has been delivered on the spot. From the aforesaid recital, intention of the parties is clear that it was agreed that agreement would be deemed to have been cancelled. Moreover, in the written statement, appellant had denied the execution of the agreement in question. However, execution of the said document has been duly proved. 11. From the aforesaid recital, intention of the parties is clear that it was agreed that agreement would be deemed to have been cancelled. Moreover, in the written statement, appellant had denied the execution of the agreement in question. However, execution of the said document has been duly proved. 11. Even before this Court, counsel for the appellant is making an effort to draw an inference in support of the argument raised in favour of the appellant by interpreting the aforesaid document in question. On one hand, appellant has denied the execution of the document in question (Ex.P1). On the other hand, the same document is being interpreted by him in support of his case. 12. In view thereof, this Court is of the opinion that appellant cannot be allowed to rely upon a document, execution of which otherwise stands proved. In the opinion of this Court, in case there was any truth in the defence taken on behalf of the appellant that the document is executed to secure the loan amount, he should have explained the execution of the document in his written statement which admittedly has not been furnished in the pleadings. 13. Thus, no substantial questions of law, as raised, arise in this appeal. 14. No other point was argued. 15. Dismissed. ---------0.B.S.0------------