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2023 DIGILAW 1590 (PNJ)

Rohini Lowe v. Prem Chand

2023-05-03

ALOK JAIN

body2023
JUDGMENT Alok Jain, J. This is defendant's second appeal raising challenge to the judgment dated 12.08.2014 passed by the Additional Civil Judge (Senior Division), Gurgaon (now Gurugram),whereby the suit for possession by way of specific performance was decreed and the present appellant was directed to execute the sale deed in favour of the plaintiff-respondent herein within two months by clearing the loan pending, if any, within a specific period, failing which the plaintiff-respondent shall be at liberty to get the sale deed executed through the Court. 2. The learned First Appellate Court of Additional District and Sessions Judge, Gurugram, vide judgment and order dated 15.02.2016, also, after hearing the appellant (defendant), at length and after going through record, dismissed the appeal. 3. Learned Senior counsel has opened his arguments by reiterating the brief facts which are briefly detailed as under taking the parties as they are nominated in the suit:- 4. The defendant is owner in possession of residential apartment No. 1003 located in Wing-T on 10th Floor alongwith parking space No. T-6-OP-3 in the multi-storied building known as Sushant Estate situated in village Kanhai, District Gurgaon having super area of 723 sq. feet. Allegedly, in April, 2006, the defendant approached the plaintiff to purchase the suit property stating that she was full fledged owner in possession of the same and she had clear title of it. Accordingly, the plaintiff agreed to purchase the suit property for a total sale consideration of Rs. 21,50,000/- and an agreement of sale was executed on 25.04.2006, regarding the aforesaid property in favour of the plaintiff. The defendant received a sum of Rs. 2,00,000/- in cash as advance payment of the sale consideration from the plaintiff. As per the aforesaid agreement the balance sale consideration amount of Rs. 19,50,00/- was payable to the defendant by 1st of July, 2006 subject to all paper/documents and title of the property in order to be transferred simultaneously with the execution and registration of the sale deed of the apartment in question. It was further alleged that the plaintiff had always been ready and willing and is still ready and willing to get the apartment transferred in his favour by incurring all obligations arising out of the said agreement dated 25.04.2006. The plaintiff orally contacted the defendant who intimated that she would get the same done on 03.07.2006. It was further alleged that the plaintiff had always been ready and willing and is still ready and willing to get the apartment transferred in his favour by incurring all obligations arising out of the said agreement dated 25.04.2006. The plaintiff orally contacted the defendant who intimated that she would get the same done on 03.07.2006. On 03.07.2006 the plaintiff remained present in the office of Sub-Registrar alongwith funds for paying balance sale consideration amount to the defendant and to fulfill all his obligation. However the defendant failed to turn up on the said date. The plaintiff had, in fact, got his presence marked with the Sub Registrar, Gurgaon. Plaintiff issued notice dated 19.06.2006 through his counsel to the defendant calling upon her to fulfill her due obligations as per agreement in question whereupon she agreed to fulfill her part. Thereafter on 04.07.2006 the plaintiff got served another notice upon the defendant but in vain. It was further alleged that the defendant had intentionally concealed the fact that the suit property in question was already mortgaged with ICICI Home Finance Company Ltd., as such played fraud with the plaintiff, misrepresenting in the agreement dated 25.04.2006 that the suit property in question was free from all encumbrances. 5. The defendant finally resiled from the terms and conditions of the agreement and threatened to alienate the suit property to create third party interest therein and to get its nature and character changed with a view to create complications and irreparable loss and injury to the plaintiff. Hence, the suit was filed by the plaintiff. 6. At the outset, learned Senior counsel for the appellant-defendant has submitted that in light of the latest law laid down by the Hon'ble Supreme Court, there is no need for framing of any substantial question of law, as per Section 41 (1) of the Punjab Courts Act, and submits that the appeal can be proceeded with and/or without the same. At this stage, learned counsel for the respondent-plaintiff has conceded to the said position in law and, hence, the appeal is proceeded with accordingly. 7. Mr. Sarin, learned Senior counsel for the appellant, has argued that there was no legal, valid and binding agreement between Prem Chand (plaintiff) and the appellant, which is being sought to be enforced by the respondents. 7. Mr. Sarin, learned Senior counsel for the appellant, has argued that there was no legal, valid and binding agreement between Prem Chand (plaintiff) and the appellant, which is being sought to be enforced by the respondents. He submits that that a fraud has been played upon the appellants, inasmuch as the fact that the respondent was not the signatory to the Agreement to Sell, wherein one Mr. Pravin Chanda has signed the Agreement to Sell and had simplicitor mentioned 'for Mr. Prem Chand'. He further submits that the receipt of the advance received by the appellant does no even bear the said sanction, of the fact, that Pravin Chanda signed the receipt on behalf of Mr. Prem Chand. It has been further argued on the strength of statement of PW-1 and the cross-examination of PWl-Prem Chand to submit that once it was an admitted position that the Agreement to Sell was not signed by said Prem Chand and the fact that subsequently in the suit also it was simplicitor mentioned that Pravin Chanda was his authorized person but the evidence and the cross-examination establish that he was not aware of the said agreement goes a long way to show that Agreement to Sell was not legally executed between the parties. Mr. Sarin has further argued that the financial capacity of Prem Chand could not be seen into, to draw the conclusion that the respondent was ready, willing, able and capable on the target date and all through the period of the pendency of the suit. He submits that once Prem Chand was not a signatory to the Agreement to Sell and in the absence of any evidence that Prem Chand ever met the appellant, goes a long way to show that the said Agreement to Sell was never executed by Prem Chand. Mr. Sarin has further argued that, in fact, one Pravin Chanda has coerced and forced the appellant to execute the Agreement to Sell and he forged the signatures of one Prem Chand and subsequently entangled the appellant into this litigation. Mr. Sarin has further argued that, in fact, one Pravin Chanda has coerced and forced the appellant to execute the Agreement to Sell and he forged the signatures of one Prem Chand and subsequently entangled the appellant into this litigation. He has further contended that the Lower Appellate Court has wrongly relied upon the contours of oral agreement as the same could not have been relied upon for the reason that by virtue of Sections 91 and 92 of the Evidence Act, once a document is reduced to writing, the parameters and the veracity of the same has to be established separately. His next limb of the argument is that section 20 of the Specific Relief Act has used the word 'discretionary relief. He submits that the plaintiff-respondent purposefully remained silent for nine months and the appellant being a lady taking care of her widowed mother and her minor daughter would be put to extreme hardship. Mr. Sarin has also raised the issue with regard to the relief granted in terms of the directions to the appellants to "repay the loan, if any" was beyond the prayer and the pleadings. He submits that in the absence of any pleadings or any issue and in the absence of any evidence, no finding could have been recorded which much less any direction could have been issued. Mr. Sarin has further argued that there was no plea to the effect that Pravin Chanda is son of Prem Chand in the entire pleadings. In fact, it is only in the statement of Prem Chand and Pravin Chanda that the respondents have tried to improvise on their case. Be that as it may, in the absence of any pleadings, the Courts below have wrongly relied upon the relationship of father and son and have ignored the provisions of Section 50 of the Evidence Act. He has further submitted that there is no power of attorney or even authorization letter pleaded and/or produced and/or proved on the record of the file and in the absence of the same, the entire suit had to fall. 8. To conclude, Mr. Sarin has reiterated that once it was established that the signatures on the Agreement to Sell and the receipt of the earnest money did not bear the signature of Prem Chand, there was no privity of contract. 8. To conclude, Mr. Sarin has reiterated that once it was established that the signatures on the Agreement to Sell and the receipt of the earnest money did not bear the signature of Prem Chand, there was no privity of contract. He submits that there was no agreement with Prem Chand and there being no pleadings to demonstrate the relationship between Praveen Chand and Prem Chand, the Agreement to Sell itself was and is unexecutable. He further submits that both the Courts below have fell in error in appreciating the fact and the evidence that since the Agreement to Sell itself was an outcome of fraud (as alleged), no relief could be granted. Hence, the suit for possession by way of specific performance deserves to be dismissed. 9. Per contra, Mr. Ashish Aggarwal, Senior counsel for the respondent, has submitted that the entire case set up by the defence sought to be by the appellant is a concocted story and the appellant is trying to project that the signatures by Pravin Chand for Prem Chand on the Agreement to Sell is fatal. He has submitted that on the question of law, it is settled by the Hon'ble Supreme Court in the case of Alka Bose v. Parmatma Devi and Others. 2009 (2) SCC 582 . that even if an Agreement to Sell is not signed by the purchaser even then, the same will not be fatal. He further relies on the judgment of this Court passed in Mulakh Raj v. Kishan Kaur and others.2014 (37) RCR (Civil) 52. to substantiate his arguments. 10. The relevant paras of the said judgment read as under:- "13. In reply to this argument, learned counsel for the appellant has submitted that it is not necessary that the agreement should have been signed by the purchaser as well and has relied upon a judgment by the Supreme Court in the case of "Alka Bose v. Parmatma Devi and others" 2009(1) Apex Court Judgments 354 and has also relied upon a judgment of Supreme Court in the case of "Ram Khilona v. Sardar and others" 2002 (2) Apex Court Judgments 122, to contend that there is no mandate of law regarding requirement of a marginal witness in the agreement to sell. 15. 15. I have heard learned counsel for the parties and after perusal of record, am of the considered opinion that appeal (i.e. RSA No.3069 of 2010) filed by the plaintiff deserves to be allowed and by defendant No.1 (i.e. RSA No.4673 of 2009) deserves dismissal. Insofar as due execution of agreement to sell is concerned, I do not find any error in the reasoning adopted by the Appellate Court because defendant No. 1 herself has admitted her signatures on the agreement (Ex.P2) and receipts (Ex.P3 & P4). It has been held by the Supreme Court in the case of Alka Bose (Supra) that if the agreement to sell is signed by the vendor alone, it would be a valid agreement and thus, if the agreement is not signed by one of the purchasers, it would not render the document surrounded by suspicion. As far as, attesting witness Biru Ram (PW2) is concerned, he along with Mulakh Raj has consistently stated that agreement and receipts were duly executed by defendant No.1 but even otherwise in view of the judgment of the Supreme Court in the case of Ram Khilona (Supra), there is no mandate of law regarding requirement of a marginal witness in an agreement to sell. Defendant No.1 RSA No.4673 of 2009 has though pleaded fraud but has failed to give manner and particulars of fraud, therefore, the agreement (Ex.P2) and receipts (Ex.P3 & P4) are duly proved. " 11. To further corroborate his submissions, Mr. Aggarwal, has taken the Court to the clauses of the Agreement to Sell, especially Clause 2 to submit that Pravin Chanda or Prem Chand is inconsequential for the reason that Clause 12 entitles the purchaser to get the sale deed registered either in his own name or his nominee and, therefore, the entire story set up y the appellant is a farce. He has referred to page 51 of the paper book also and has clarified that the learned First Appellate Court below, has rightly held that merely the fact that the agreement does not bear the signatures of the plaintiff is inconsequential. The agreement clearly shows that the appellant-defendant had agreed to sell the suit property to the plaintiff and the son of the plaintiff, namely, Pravin Chanda signed the agreement. The agreement clearly shows that the appellant-defendant had agreed to sell the suit property to the plaintiff and the son of the plaintiff, namely, Pravin Chanda signed the agreement. To sum up, he submits that the intention of the appellant was clear that she wanted to sell the property moreso, she does not deny the receipt of earnest money of Rs. 2,00,000/- and, hence, the act and conduct of tie appellant disentitles her from raising this frivolous plea. He has further submitted that it is only the appellant who has signed the Agreement to Sell and the receipt but the attesting witnesses were her mother and the property dealer who had sealed the deal with the plaintiff, namely Sachin Banga PW-3. The thrust of his argument is that the appellant, was all through, aware and knew Prem Chand and Pravin Chanda are father and son, and a concocted story is sought to be built that Pravin Chanda impersonated Prem Chand. He submits that the plaintiff was never impersonated by anyone, rather the plaintiff had instructed his son to enter into the agreement. He submitted that the absence of the mother of the appellant, who was the attesting witness on behalf of the appellant on the Agreement to Sell was not brought in the witness box to lead the evidence, which goes a long way to show that the appellant has tried her best to keep away the truth, moreso, for the reason that the second attesting Mr. Sachin Banga was duly examined as PW-3. It is the positive case of the respondent-plaintiff that the appellants were one who had drafted the Agreement to Sell and the receipt and was all through aware that the document is being signed by Pravin Chanda being son of Prem Chand. It was no one's case that there has been any impersonation. He has expressed thrust on the fact that the appellant admittedly visited the office of the Sub-Registrar on 30.06.2006 i.e. a day prior to the target date of 1st July. Counsel for the appellant has further highlighted the affidavits executed by the appellant on 30.06.2006 and 03.07.2006 executed by the appellant, wherein it has been categorically recorded the name of the plaintiff and it has been recorded that she is ready and willing to execute the sale deed but the other side has not come. 12. Counsel for the appellant has further highlighted the affidavits executed by the appellant on 30.06.2006 and 03.07.2006 executed by the appellant, wherein it has been categorically recorded the name of the plaintiff and it has been recorded that she is ready and willing to execute the sale deed but the other side has not come. 12. Counsel for the respondent has also relied upon the cross-examination of PW-2 and PW-3 to substantiate that the appellant had complete knowledge of this fact, as to who was Pravin Chanda and who was Prem Chand. He relies upon DW4/A i.e. the form along with which the Passport and the Pan Card of said Pravin Chanda is duly attached. Counsel for the respondent has clarified with regard to the wrong date mentioned in the legal notice dated 04.07.2006 instead of 01.07.2006 and submits that the said anomaly already stands cured and, therefore, this ground was not available to the appellant. 13. That the stand of the appellant qua she being misrepresented is unfounded and in fact the written statement is self-contradictory. He has further gone to submit that presuming the averments in the written statement are wrong and incorrect; the same disentitles the appellant from any relief because the same is in contradiction to the evidence and statement of appellant No.1. At this stage, Mr. Aggarwal, learned Senior counsel, has submitted that respondent has already deposited the entire balance amount with the Court below on 04.11.2014. 14. Coming to the next argument with regard to section 20 of the Specific Relief Act raised by the appellant, Mr. Aggarwal, has submitted that the said provision shall not apply and come into play for the reason that there is no hardship caused to the appellant. He relies upon the evidence especially the cross-examination of the appellant in which she has admitted that the said property has been rented out and even today, is on lease. 15. To substantiate his arguments, learned Senior counsel for the respondent has relied upon judgments passed by the Hon'ble Supreme Court of India in cases titled as Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and others, 2020 AIR (Supreme Court) 5041 and Sughar Singh v. Hari Singh (Dead) Through LRs and others, 2021 AIR (Supreme Court) 5581. 16. 15. To substantiate his arguments, learned Senior counsel for the respondent has relied upon judgments passed by the Hon'ble Supreme Court of India in cases titled as Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and others, 2020 AIR (Supreme Court) 5041 and Sughar Singh v. Hari Singh (Dead) Through LRs and others, 2021 AIR (Supreme Court) 5581. 16. Learned Senior counsel for the respondent has also clarified that the case of the appellant shall not fall under Section 13 (1) and has relied upon Clause £C' to demonstrate that it is in fact the appellant who had played a fraud upon the respondent-plaintiff, inasmuch as the fact that she knowing that the said property is under mortgage, still mentioned in the Agreement to Sell that the property is free from all encumbrances. Rather, the appellant has misled this Court which is evident from the order dated 10.01.2017 passed by this Court. To sum up, he submits that the fruits of the property are being enjoyed by the appellant, despite the fact that the respondent had duly proved the entire matter. 17. Per contra, Mr. Sarin, learned Senior counsel for the appellant, has rebutted the arguments and has submitted that the respondent has failed to answer the contention with regard to impersonation of Pravin Chanda as Prem Chand. He submits that the appellant has fairly stated each and every thing and, therefore, is covered under the provisions of section 20 of the Specific Relief Act. He further contends that sections 10, 14, 17 and 18 of the Contract Act, clearly establish that no such Agreement to Sell could have been exercised. 18. As regards the judgment in the case of Alka Bose (supra), it is submitted by the learned Senior counsel for the appellant that the same does not apply in this case as the identity of the petitioner therein was not disputed and he has reiterated that in the absence of any power of attorney or authorization letter in favour of Pravin Chanda by Prem Chand renders the entire Agreement to Sell to be void. Heard. 19. After hearing the learned counsel for the parties at length and going through the entire record, it transpires that the following are the main contentions:- 1. The Agreement to sell was signed by one Pravin Chanda on behalf of Mr. Heard. 19. After hearing the learned counsel for the parties at length and going through the entire record, it transpires that the following are the main contentions:- 1. The Agreement to sell was signed by one Pravin Chanda on behalf of Mr. Prem Chand and Prem Chand never executed any Agreement to Sell, therefore, the suit was not maintainable. 2. The respondent-plaintiff did not come present on the date fixed and, hence, was not able and capable of execution of the sale deed. 3. Whether the discretionary relief could be only execution of the sale deed of the disputed property or some compensation? As regards the first contention, it is held that the same does not hold good for the reason that the appellant was not although aware that the Agreement to Sell is being executed on behalf of Prem Chand. This stands substantiated by the effect that in all the communications including legal notices as well as the execution of the affidavits before the Sub-Registrar, the appellant recorded and accepted Prem Chand as the buyer of the her property. The appellant has not been able to controvert the fact that she had received a sum of Rs. 2,00,000/- from the respondent at the time of execution of the Agreement to Sell. The appellant also visited the office of the Sub-Registrar and got her presence recorded and the same was the situation of the respondent-plaintiff as well. The bona fides of the respondent are further clear from the fact that he has deposited the entire amount on 04.11.2014. Therefore, to oust the original claim of the respondent, the instant litigation has been instituted. Both the learned Courts below have rightly appreciated the evidence on record and have passed a well reasoned detailed judgment which needs no interference. 20. Accordingly, in light of the discussions on all the issues, which were pressed by the counsel for the parties, the present Regular Second Appeal stands dismissed.