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2015 DIGILAW 2812 (ALL)

Ombir Singh v. Deshpal

2015-09-08

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. Plaintiff-appellant has filed Original Suit No. 70 of 2007 for specific performance of contract pursuant to the agreement to sell dated 14th of February, 2005. Another Suit No. 10 of 2007 had been filed by the defendants to the present appeal for cancellation of the agreement to sell dated 14th of February, 2005. Both the suits were consolidated together and the Original Suit No.70 of 2007 was decreed and Original Suit No. 10 of 2007 has been dismissed. Thus aggrieved, appeals were filed by the defendant to the Original Suit No. 70 of 2007, which has been allowed by the lower appellate court and the judgment and decree of the trial court has been set aside. As a consequence, suit for cancellation of agreement to sell No. 10 of 2007 has been decreed and the suit for specific performance has been rejected. The lower appellate court, however, has granted alternative relief for return of amount along with interest exercising its jurisdiction under sections 20 and 22 of the Specific Relief Act. Aggrieved by the judgment and decree of the lower appellate court, plaintiff of Original Suit No. 70 of 2007 has filed two appeals, which have been heard together on the question of admission. 2. Learned counsel for the appellant submits that the agreement to sell was registered and there would be a presumption in the eyes of law with regard to correctness of the averments contained therein. Submission is that once the agreement to sell had clearly mentioned that a sale deed is to be performed pursuant to the agreement dated 14th of Februrary, 2005, it was not open for the defendant to file the suit for cancellation of it or to resist the suit for specific performance. Learned counsel also submits that grant of alternative relief of return of earnest money is illegal, inasmuch as mere making of a prayer for grant of alternative relief would not justify grant of such prayer. 3. Learned counsel for the defendant in Original Suit No. 70 of 2007 contends that in fact, no agreement to sell was executed, inasmuch as the defendant had taken a loan of Rs. 3. Learned counsel for the defendant in Original Suit No. 70 of 2007 contends that in fact, no agreement to sell was executed, inasmuch as the defendant had taken a loan of Rs. 1,50,000/-(rupees one lac fifty thousand), which was to be returned along with the interest after two years and for the security of the transaction, the document had been executed and that infact, no agreement had been entered into by him for executing the sale deed. It is submitted that only when a notice for executing the sale deed was issued by the plaintiff that the defendant came to know about the execution of agreement to sell and immediately thereafter a suit for cancellation of the agreement to sell has been filed, which has rightly been allowed on the basis of evidence and materials available on record. 4. Having considered the submissions aforesaid, this Court finds that the lower appellate court has considered the oral and documentary evidence brought on record by the parties. Two circumstances have been noticed by the lower appellate court for setting aside the judgment and decree of the trial court. The first circumstance noticed was that the sale consideration as per the agreement was Rs.1,75 ,000/-, out of which a sum of Rs. 1,50,000/- had been paid as earnest money and a period of two years had been fixed for execution of sale deed after payment of remaining sum of Rs. 25,000/-. According to the lower appellate court, once the amount of Rs. 1,50,000/- had been paid as advance, there appears to be no justification for deferring the execution of sale deed by a period of two years, when a paltry sum of Rs. 25,000/- alone remain to be paid. The second circumstance, which has been noticed by the lower appellate court is the statements of the witnesses of the agreement to sell. One of the witness has stated that the deed had been got executed because a sum of Rs. 1,50,000/- was needed by the defendant for purchasing a particular property and as the same was not available with him, he had secured a loan for such amount. Material contradictions in the stand of the other witness was also noticed. One of the witness has stated that the deed had been got executed because a sum of Rs. 1,50,000/- was needed by the defendant for purchasing a particular property and as the same was not available with him, he had secured a loan for such amount. Material contradictions in the stand of the other witness was also noticed. Based upon the aforesaid two circumstances, the lower appellate court came to a conclusion that in fact, no agreement to sell had been executed and it was only for protecting the advance of loan to the defendant that a deed was required to be executed and there was no agreement on the part of the defendant to sell the property. In such circumstances exercised its jurisdiction under section 20 of the Specific Relief Act, the lower appellate court came to a conclusion that the return of earnest money along with interest would sub-serve the interest of justice especially when alternative prayer was made in the suit. Learned counsel for the appellant has taken the court through the judgment of both the courts below as well as the evidence, which has been brought on record in order to contend that the view of the lower appellate court aforesaid is perverse and is not born-out from the materials available on record. Learned counsel for the defendant-respondent has supported the judgment of lower appellate court for the reason assigned therein. 5. Having perused the material available on record, this Court finds that the reasoning assigned by the lower appellate court in order to return a finding that in fact there was no voluntary act on the part of the defendant to execute an agreement to sell is a plausible view, which is permissible in the facts and circumstances of the present case. The two circumstances, which have been relied upon for returning a finding in this regard cannot be said to be perverse or erroneous. The attempt on the part of learned counsel for the appellant to take the Court through the materials available on record, with an intent to virtually seek re-assessment of evidence brought on record is beyond the scope of proceedings under section 100 CPC. The attempt on the part of learned counsel for the appellant to take the Court through the materials available on record, with an intent to virtually seek re-assessment of evidence brought on record is beyond the scope of proceedings under section 100 CPC. So far as the act of registration of agreement is concerned, it is settled that the registration is not the conclusive proof of the contents of the transaction itself and once a finding based upon evidence has been returned that in fact no such agreement was executed, the mere registration would not have the effect of up-setting the findings returned on this aspect. Honble the Supreme Court even otherwise in the case of Velayudhan Sathyadas vs Govindan Dakshyani (2010) 15 SCC 722 has been pleased to observe that once the civil court exercises its discretion in terms of section 20 of the Act, even if the factum of agreement is not disputed, no interference is required, unless such conclusion is shown to be wholly perverse or erroneous. In the fact of the present case, this Court finds that the conclusion drawn by the lower appellate court as well as the exercise of discretion is based upon consideration of relevant materials, and therefore, no interference is required in exercise of appellate jurisdiction of this Court within its narrow limits under section 100 CPC and the appeal consequently fails and is dismissed in limine.