Research › Search › Judgment

Chhattisgarh High Court · body

2018 DIGILAW 397 (CHH)

Mohanlal Patle S/o Buddhulal Patle v. Surjeet Singh Saluja S/o Chunnilal Saluja

2018-07-12

MANINDRA MOHAN SHRIVASTAVA, RAJNI DUBEY

body2018
ORDER : Heard. 1. This appeal is directed against impugned judgment and decree dated 28-03-2014 passed by the Vith Additional District Judge, Bilaspur in Civil Suit No.39-A/2012, by which, suit filed by the plaintiff for specific performance has been decreed against the appellant. 2. The respondent-plaintiff filed a suit for grant of decree of specific performance on the pleadings, inter alia, that the appellant-defendant in need of money, had agreed to sell his property in dispute ad measuring 2.47 acres of land for a consideration of Rs.6,15,000/- and an agreement was executed on 07-10-2004 in the presence of witnesses upon receiving Rs.15,000/- in advance. Further, pleading was that from time to time, the defendant kept on receiving part payments and was also executing note or separate agreement acknowledging the fact that he was receiving part payments towards execution of sale deed of the property in dispute in favour of the plaintiff. According to the plaintiff, on the basis of agreement executed from time to time, the plaintiff had paid total amount of Rs.2,15,000/- to the defendant, but the defendant started avoiding execution of sale deed. When the plaintiff demanded execution of sale deed by offering to pay the balance amount, the defendant threatened that he would get him involved in false criminal case. Paper publication was made by the plaintiff, but even thereafter, no sale deed was executed in his favour by the defendant. Hence, the suit was filed. Case of the defendant was that though he had taken money from the plaintiff from time to time, it was only under a loan transaction as the defendant needed money for marriage of his daughters. According to the defendant, so called agreements itself were only sham documents, which were prepared to furnish security towards repayment of loan. When the defendant offered to repay and claim documents, the plaintiff refused and on fabricated documents, filed suit. 3. According to the defendant, so called agreements itself were only sham documents, which were prepared to furnish security towards repayment of loan. When the defendant offered to repay and claim documents, the plaintiff refused and on fabricated documents, filed suit. 3. On the basis of the pleadings of the parties, the learned trial Court framed following issues:- ØŒ oknÁ'u fu"d"kZ 1-¼v½ D;k oknh ls Áfroknh us fnukad 07-10-2004 dks oknxzLr Hkwfe 6]15]000@& ¼N% yk[k iUnzg gtkj :i;s½ esa foØ; djus dk lkSnk djrs gq, 15]000@& :i;s vfxze ÁkIr fd;k\ Áekf.kr ¼c½ D;k oknh lkgwdkj gksdj 07-10-2004 dk vuqca/k fn[kkoVh gksdj ek= m/kkj esa fn;s x;s :i;s dh lqj{kk crkSj fd;k x;k Fkk\ vÁkef.kr ¼l½ D;k oknh us okn pj.k 4] 5] 6] 8 esa vuqca/k dh frfFk;ka c<+krs gq, dqy 2]15]000@& :i;s Áfroknh dks Hkqxrku fd;k ftlds ,ot esa Áfroknh us oknHkwfe ca/kd j[kh\ vkaf'kd izekf.kr Áfroknh us foØ; bdjkjukek fu"ikfnr dj fofHkUu frfFk;ksa esa oknh ls dqy nks yk[k :i;s izkIr fd;k 2- D;k oknh] Áfroknhx.k ls vuqca/k ds ikyu esa lnSo ltx rS;kj o rRij jgk] mlds vk/kkj ij oknHkwfe dk iath;u djkus dk vf/kdkjh gS\ gka 3- lgk;rk ,oa O;;\ dafMdk 23 ds vuqlkjA 4. Relying upon the agreements executed by the defendant from time to time w.e.f. 07-10-2004 onwards as also relying upon the evidence of witnesses of execution of agreements as also admission of the defendant of having executed the documents and signed thereon and disbelieving the story of loan transaction, learned trial Court held that the plaintiff was entitled to decree. 5. Assailing correctness and validity of the impugned judgment and decree, learned counsel for the appellant argued that the learned trial Court fell in error of law and fact in both in holding that the transaction was towards sale of property of the of the defendant. It is argued that the defendant had come out with a very specific case that he needed money for marriage of his two daughters. This fact has been admitted by the plaintiff-Surjit Singh Saluja, PW-1 in his cross-examination that when the defendant had contacted him, he was in need of money to meet out the expenditure towards marriage of his daughters. This fact has been admitted by the plaintiff-Surjit Singh Saluja, PW-1 in his cross-examination that when the defendant had contacted him, he was in need of money to meet out the expenditure towards marriage of his daughters. It is next submitted that the learned trial Court did not correctly appreciate that mere execution of document was not a conclusive proof of agreement to sell the property in the light of proved attending circumstances particularly that the defendant was an agriculturist and he was in need of money for marriage of his daughters, ought to be taken into consideration. It is further argued that the defendant witnesses have clearly stated that the real intention behind the transaction was to create loan liability and not an obligation to execute the sale deed in respect of the property in dispute. It is contended that even if the case of the plaintiff is made out technically, in the circumstances of the case that the defendant was an agriculturist, he was in need of money for meeting the expenditure of marriage of his daughters and that if decree is granted, the defendant would suffer undue hardship, it is submitted that the decree ought not to be granted and the defendant is prepared to repay the entire amount as paid to him by the plaintiff. It was further argued that there was no clinching evidence to prove that the plaintiff is ready and willing to perform his part of contract. It is also submitted that no decree of specific performance could be granted in view of the mandate of law as provided under Section 16 (C) of the Specific Relief Act. Learned counsel for the appellant has placed reliance in the case of Jayakantham and others versus Abaykumar, (2017) 5 SCC 178 . 6. On the other hand, learned counsel for the respondent supporting the impugned judgment and decree submits that the plaintiff's case has been duly proved not only from the specific pleadings, but also from the agreement of sale dated 07-10-2004 and thereafter, various agreements and endorsements made by the defendant. The defendant has admitted his signatures on all these documents and admits that what was executed was an agreement to sell, but has come out with a improbable story of it being sham transaction on the ground that it was a loan transaction. The defendant has admitted his signatures on all these documents and admits that what was executed was an agreement to sell, but has come out with a improbable story of it being sham transaction on the ground that it was a loan transaction. He further submits that the story of it being a loan transaction is based on the ground that the defendant required money for marriage of his daughters, but that by itself does not make out a case of the plaintiff improbable. It is next submitted that the case of the plaintiff is proved from independent witnesses, in whose presence, the plaintiff and the defendant had entered into agreement of sale and signed by these witnesses. Therefore, the defendant's story of loan transaction is wholly improbable. It is also argued that the defendant has admitted in his written statement that the plaintiff was insisting for execution of sale deed. The plaintiff has paid substantial amount of Rs.6,15,000/-, therefore, readiness and willingness on his part of contract is writ large. It is lastly submitted that the defendant has failed to plead and prove that in the circumstances, if decree of specific performance is granted in favour of the plaintiff, the defendant would suffer undue hardship. 7. Plaint allegations of the plaintiff with regard to agreement towards sale of property of the defendant Mohan Lal Patle are quite specific. It has been pleaded that on 07-10-2004, an agreement was executed between the parties for sale of the property in dispute for total consideration of Rs.6,15,000/-and advance of Rs.15,000/- was paid in the presence of witnesses as also in the presence of defendant Mohan Patle. Thereafter, on 21-10-2004, the defendant again received Rs.35,000/- and made written endorsement in the agreement dated 07-10-2004 regarding receipt of the same towards for payment. Again on 27-01-2005, Rs.20,000/- was taken and agreement was executed, followed by another receipt of Rs.20,000/- on 28-04-2005 and agreement on that date itself was executed. It has also been pleaded in the agreement between the parties, the time within which, the sale deed could be executed, can be extended for a further period of 45 days. It has also been pleaded that the defendant again received Rs.1 Lakh on 22-06-2005 and agreement was executed regarding the period up to which, the sale deed could be extended till 31-03-2006. It has also been pleaded that the defendant again received Rs.1 Lakh on 22-06-2005 and agreement was executed regarding the period up to which, the sale deed could be extended till 31-03-2006. It has been further pleaded that another amount of Rs.6,000/- was received by the defendant and finally thereafter, on 16-11-2005, an amount of Rs.19,000/- was received by the defendant from the plaintiff by stating that this amount could be adjusted towards sale consideration and receipt in this regard was also issued. According to the plaintiff, as pleaded by him and proved from various agreements Ex.P-1, P-2, P-3, P-4 and affidavit of Mohan Patle, Ex.P-5, the plaintiff has also proved another agreement, which was written at the time when the defendant had taken Rs.19,000/- on 16-11-2005 as Ex.P-6. The defendant does not dispute that he had signed these documents. The plaintiff has not only stated regarding execution of these documents, but has also examined witnesses of execution of these documents. In the written statement, the defendant does not dispute that all these documents were executed on him but his defence is that it was sham transaction and the real transaction was that of loan and not sale of the property. According to the defendant, the plaintiff is moneylender. Therefore, from the written statement, it is clear that the defendant has not denied execution of documents but it is the case of the defendant that the documents are sham. Apart from the evidence of plaintiff- Surjit Singh Saluja, there are three other witnesses of transactions who have deposed before the Court in their evidence that there was an agreement arrived at between the plaintiff and the defendant-Mohan Patle and various agreements were executed and Mohan Patle received amount from time to time. Vijay Kumar Tiwari, PW-3 has stated in his affidavit that he was informed by Mohan Patle and his son in the year 2004-2005 that he had entered into an agreement to sell his property and thereafter on 28-04-2005, Mohan Patle had taken him along with his son-in-law to the plaintiff and under an agreement, advance was demanded, then Surjit Singh Saluja gave him Rs.70,000/- and Mohan Patle executed the agreement. This witness further deposed on 22-06- 2005, Rs.1 Lakh was taken and agreement was executed. On that date, Surjit Singh Saluja was also present. This witness further deposed on 22-06- 2005, Rs.1 Lakh was taken and agreement was executed. On that date, Surjit Singh Saluja was also present. The defendant agreed to execute the sale deed by 31-03-2006 and executed the agreement which was signed by this witness and also signed by Puran Lal Patle, son of the defendant. In the cross-examination of this witness also, this has been elicited that he signed one of the agreement, though, he was not witness to the agreement dated 07-10-2004. This person is resident of Village Joki, where land is situated. According to his evidence, he knows the plaintiff and defendant both. He has lands in Village Joki. Nothing could be elicited in his cross-examination as to why this witness would give false evidence of agreement entered into between the plaintiff and the defendant. 8. Another witness Sukhdev Sharma, PW-3, has also supported the case of the plaintiff by stating that he was one of the witness of agreement dated 22-06-2007 when the defendant had received Rs.1 Lakh from the plaintiff. This witness happens to be one of the shopkeepers near the shop of the plaintiff. However, nothing could be elicited in his cross-examination to disbelieve his testimony and there is no material contradiction in his evidence to disbelieve that he was a witness to the transaction. The next plaintiff's witness is Ashok Singh, PW-4, he has deposed regarding execution of first agreement dated 07-10-2004 stating that there was an agreement to sell the property, arrived at between the defendant and plaintiff in his presence. He had brought Rs.50/- stamp paper as requested by the defendant -Mohan Lal Patle and agreement to sell the land ad measuring 2.47 acre was executed. He further deposed that Rs.15,000/- was paid as advance to the defendant-Mohan lal Patle. He has proved his signature on the agreement. In his cross-examination, he has stated that the agreement was executed in his presence in the house of Surjit Singh Saluja-the plaintiff, but denies the suggestion that the agreement was not in relation to the disputed property. He has also denied suggestion that the agreement was only intended to be part of loan transaction or that the plaintiff had advanced loan to the defendant. It would thus be seen that all the agreements were duly proved by the plaintiff which only speak that there was an agreement between the parties. 9. He has also denied suggestion that the agreement was only intended to be part of loan transaction or that the plaintiff had advanced loan to the defendant. It would thus be seen that all the agreements were duly proved by the plaintiff which only speak that there was an agreement between the parties. 9. The defendant-Mohan Lal Patle, in his cross-examination says that he does not know reading and writing. In para 15 of his cross-examination, says that this witness has read the contents of Ex.P-1 overleaf and also admitted that it was written by him. The recital dated 21-10-2004 is to the effect that total amount of Rs.50,000/- was received by the defendant. Therefore, it is clear that the defendant can not only read but also write. There is abundance of evidence led by the parties that the defendant was an employee in the Railways. In para 18 of his cross-examination, it is said that he does not know about execution of various agreement, but his case, as pleaded, is that it was a loan transaction and that agreement of sale was only a sham document intended to create security towards repayment of loan. In para-19 of his cross-examination, he says that he does not know as to at what rate of interest, he agreed to take the loan. It is quite improbable that the person who states regarding case of loan transaction would not know as to what was the rate of interest. Thee is nothing on record to show that in any special circumstances, the defendant was advanced loan by the plaintiff without any interest. Therefore, the story of it being a loan transaction, is not probable. In fact, the defendant's own witness Ram Prasad Bhonsle, DW-3 has admitted in his cross-examination that on 07- 10-2004, he along with Mohan had gone to the shop of the plaintiff, where agreement was prepared which was read over to him and Mohan and it was executed in their presence and Mohan was given Rs.15,000/- as advance. He admits his signature in Ex.P-1. In para 8 of his cross-examination, he states that on 07-10-2004, he came to the shop of plaintiff with Mohan Lal Patle and Puran Lal Patle and agreement was executed in his presence. He admits his signature in Ex.P-1. In para 8 of his cross-examination, he states that on 07-10-2004, he came to the shop of plaintiff with Mohan Lal Patle and Puran Lal Patle and agreement was executed in his presence. He further states that the contents of Ex.P-1 was read by the defendant and his son in his presence and then he had received Rs.15,000/- and thereafter signed by the defendant and his son and thereafter he also signed on the document Ex.P-1. In the end, this witness state that the aforesaid document, Ex.P-1 was read over to him as Girwinama. 10. The defendant's case that it was a loan transaction and not a sale transaction was required to be proved by the defendant and indeed, it was heavy burden on him as he had set up a case against written documents of agreement admitted having been signed by him and proved to be executed in the presence of witnesses. The defendant has however, failed to discharge this heavy burden by proving a case of oral agreement as against the written agreement. 11. Though, the defendant came out with the case in the written statement that the plaintiff is money lender, no evidence has been led in this regard to prove that the plaintiff was a money lender. Suggestion made in this regard have been denied by the plaintiff's witness. Even defendant's witness Ram Prasad Bhonsle, DW-4 has admitted that he had not seen the plaintiff advancing loan to other person or that he had indulged in money lending business. 12. In so far as readiness and willingness on the part of the plaintiff is concerned, once it is found that mere Rs.2 Lakh was paid by the plaintiff as against total consideration of Rs.6,15,000/-, that by itself is sufficient proof of plaintiff's financial capacity to pay the entire amount. The evidence has come that the plaintiff's business is running ready made cloth shop in the city of Bilaspur. 13. The evidence has come that the plaintiff's business is running ready made cloth shop in the city of Bilaspur. 13. In para 12 of the written statement, the defendant himself has admitted that the plaintiff was insisting for execution of sale deed in his favour, in which, it has been averred, as below:- ^^lR; ckr ;g gS fd fnukad 21-03-2006 ,oa fnukad 22-03-2006 dks yxkrkj oknh ds }kjk mlds i{k esa oknHkwfe jftLVªh djk nsus dk ncko cuk;k x;kA** Moreover, it is also proved that the plaintiff had not only given registered notice to the defendant, but notice was also published in the newspaper, which is proved from the Ex.P-7. Further, the plaintiff also proved that he was ready and willing to perform his part of contract. Thus, readiness and willingness of the plaintiff is also proved. 14. Last submission of learned counsel for the appellant is that in the circumstances of the present case, discretion may be exercised in favour of the appellant-defendant, not to grant a decree of specific performance in favour of the plaintiff as the defendant is ready and prepared to repay the entire amount of loan taken by him from the plaintiff because the defendant is poor agriculturist and the only property left in his hand was the property in dispute and therefore, if the decree is granted in favour of the plaintiff, it will involve serious hardship and non performance will not cause any hardship to the plaintiff, because he is engaged in accumulating property. 15. We are not inclined to accept the submission of learned counsel for the appellant, because we do not find any material on record to exercise our discretion in favour of the appellant-defendant and against the plaintiff. 16. Legal position in this regard is no longer res integra, in view of the decision of the Apex Court in the case of Jayakantham (supra), that the discretion lies with the Court and the Court may not grant decree of specific performance merely because agreement has been proved and it is not necessary that in all the cases, decree is required to be granted, but, then, the discretion is to be exercised on judicial principles and in accordance with the mandate of Section 20 of the Specific Relief Act, 1963. The grounds, on which, the appellant seeks discretion to be exercised in his favour, are not supported by any material on record and this has only been made during the course of arguments. In the absence of there being proved material circumstances, in the event of grant of decree, the defendant would suffer more hardship as the plaintiff, we are not inclined to exercise our discretion against the plaintiff and in favour of the defendant, because it has been proved that the plaintiff had paid substantial amount of Rs.2 Lakh as against the agreed sale consideration of Rs.6,15,000/-. 17. We also could not lay our hands on any material on record led by the parties that property of the defendant is being sold on songs price on the basis of the rates which existed at the time when the agreement was executed in the year 2004. 18. In the result, we find no good ground to interfere with the impugned judgment and decree. The appeal is, therefore, dismissed. Let appellate decree be drawn accordingly.