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2016 DIGILAW 3320 (PNJ)

Balwinder Singh v. Sham Lal

2016-11-29

AMIT RAWAL

body2016
JUDGMENT Mr. Amit Rawal J. (Oral) - The appellant-defendant is aggrieved of the concurrent findings of facts and law, whereby, the suit seeking specific performance of the agreement to sell dated 10.08.2010 in respect of the suit property having agreed to sell for total sale consideration of Rs.16,76,000/- against receipt of earnest money of Rs.9,00,000/-, has been decreed by both the Courts below. 2. Mr. Sanjeev Manrai, learned Senior Counsel assisted by Mr. Harshit Jain, Advocate for the appellant-defendant submits that stand of appellant-defendant in the written statement was complete denial of having entered into agreement to sell. In fact, the blank stamp papers had been used meant for loan transaction and in this regard, two receipts dated 26.06.2009, Ex.D1 and 7.9.2009, Ex.D2 have been brought on record but the same have not been looked into on the premise that the same were prior to the agreement to sell. In fact, there is no denial to the aforementioned receipts in the replication as the plaintiffs are three in number and only one, i.e., Sham Lal has stepped into witness box. In the absence of the same, defendant has been prevented to confront the aforementioned receipts to Munish Kumar - plaintiff No.3. 3. In support of his aforementioned contention, relies upon the ratio decidendi culled out by this Court in Kanta vs. Gajanand 2016(4) Law Herald (P&H) 3037, wherein, by relying upon the ratio decidendi culled out by the Hon’ble Supreme Court in Nanjappan vs. Ramasamy and another 2015 (2) Law Herald (SC) 1563, it has been held that where the suit property is residential, the discretionary relief under Section 20 of the Specific Relief Act, 1963 should not be granted, instead alternative relief along with interest ranging from 6% to 9% and thus, urges this Court for setting aside the findings under challenge. 4. I have heard learned counsel for the appellant-defendant and appraised the impugned judgments and decrees of the Courts below and of the view that receipts Ex.D1 and Ex.D2 have not been proved, in accordance with law. Mere exhibition of the receipts do not dispense with its proof, in view of the ratio decidendi culled out by the Hon’ble Supreme Court in Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others 1971 AIR (SC) 1865. The receipts aforementioned alleged to have been executed by Munish Kumar-plaintiff No.3. Mere exhibition of the receipts do not dispense with its proof, in view of the ratio decidendi culled out by the Hon’ble Supreme Court in Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others 1971 AIR (SC) 1865. The receipts aforementioned alleged to have been executed by Munish Kumar-plaintiff No.3. The admitted signatures are available on the receipts and as well as on the Power of Attorney. No steps have been taken to compare the signatures from the disputed one. Having not undertaken the aforementioned exercise, I am of the view that the appellant-defendant has not discharged the onus so same could be rebutted by the plaintiffs. The receipts are also prior to the agreement to sell, therefore, pales into insignificance as the agreement to sell is of 10.08.2010 and the suit had been filed on 10.02.2011 as the stipulated date for execution and registration of the sale deed was 20.01.2011. The plea of readiness and willingness has been found to be in favour of the plaintiffs as there was no delay in espousing the cause. 5. There is no dispute with regard to the ratio decidendi culled out by the Hon’ble Supreme Court in Nanjappan’s case (supra) as the agreement to sell in the aforesaid case was 27 years old, whereas, in the present appeal is of 2010 and suit is of 2011 and the total sale consideration was Rs.16,76,000/-, thus, the aforementioned ratio does not apply to the present case. 6.In view of the aforementioned observations, I do not intend to differ with the findings rendered by both the Courts below which are based upon the appreciation of oral and documentary evidence, much less, no substantial question of law arises for determination of this Court. 7. Accordingly, the appeal is dismissed.