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2024 DIGILAW 1200 (PNJ)

Satya Parkash v. Banshi Lal @ Roop Singh

2024-09-10

RITU TAGORE

body2024
JUDGMENT : Ritu Tagore, J. 1. Appellant/defendant has filed this appeal against the judgment dated 20.12.2021 passed by learned Additional District Judge, Palwal whereby set aside the judgment and decree dated 03.05.2019 passed by learned Civil Judge (Junior Division), Hathin and decreed the suit for possession and specific performance, against the appellant-defendant and in favour of respondent/plaintiff. 2. For easy reference, the parties to the lis, hereinafter shall be referred to by their original status in the suit. 3. In brief facts of the case are that plaintiff filed a suit against the defendant for possession by way of specific performance, with material averments that defendant entered into an agreement dated 13.01.2006 with him, for sale of his land measuring 16 Kanal, as detailed in the head note of the plaint, situated within Revenue Estate of village Khokiyaka, Tehsil defendant received Rs. 37,45,000/- from him as part payment, and reduced into writing the agreement to sell with certain conditions as detailed in the agreement (and reproduced by the learned trial Court in para No. 2 of the judgment). One of the conditions of the agreement was to get the sale deed executed and registered on 12.06.2016. 4. It is further averred by the plaintiff since 12.06.2016 was holiday and office of Sub-Registrar, Hathin was closed, he after intimating the defendants, visited the office of Sub-Registrar on 13.06.2016, along with balance sale price and stamp expenses etc. and waited for the defendant for execution and registration of the sale deed but defendant intentionally and deliberately did not come and plaintiff marked his presence. 5. The plaintiff pleaded that he has always been ready and willing to perform his part of the contract and is still ready and willing to perform his part of the contract. He orally many times requested the defendant to do the needful also sent a legal notice dated 04.06.2018 requesting to conclude the agreement to sell, but all in vain. Rather, defendant threatened to alienate the suit land to third person, and finally on 14.06.2018, refused to perform his part of the contract, that necessitated him to file the suit. 6. Upon being put to notice, the defendant appeared and filed the written statement, denying the execution of agreement to sell or receiving any sale consideration amount from the plaintiff under the alleged agreement to sell. 6. Upon being put to notice, the defendant appeared and filed the written statement, denying the execution of agreement to sell or receiving any sale consideration amount from the plaintiff under the alleged agreement to sell. The defendant, pleaded that he had financial relationship with plaintiff, since 2013, and had availed loans from the plaintiff on various occasions. He used to execute agreement to sell as security for re-payment of Lastly, he obtained loan from plaintiff in year 2015, and in year 2016, defendant owned an amount of Rs.18 lacs to the plaintiff and executed agreement to sell in question as security of the said loan, with usual understanding that on repayment of loan, the plaintiff would cancel the agreement to sell. On 04.07.2016, he repaid Rs.20 lacs inclusive interest to Ramesh, nephew of the plaintiff, who further gave said amount to Ritesh, another nephew of the plaintiff, who gave the amount to plaintiff. He repaid the amount and nothing was due to the plaintiff, and he requested for the cancellation of the agreement to sell. However, the plaintiff became dishonest and filed the present suit on false facts, misusing the agreement to sell. A prayer was made to dismiss the suit. 7. From the contest of the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to the decree for possession and injunction as prayed in the plaint? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has not come in the court with clean hands? OPD 4. Whether plaintiff has no locus-standi to file the present suit? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Relief 8. In order to substantiate his case, the plaintiff (PW-1), deposed as per the plaint. Shiv Dutt Sharma (PW-2), testified about preparing the stamp papers Ex.PW-3/B and Ex.PW-3/C to the defendant. Jai Pal Singh, Lumberdar (PW-4), attesting witness to agreement Ex, P1, deposed about the execution of agreement to sell in his presence between the parties, and receiving Rs.37,45,000/- as earnest money, out of total sale consideration of Rs.40 lacs by the defendant from the plaintiff. 9. On the other hand, defendant (DW-3) stated as per the written statement. Jai Pal Singh, Lumberdar (PW-4), attesting witness to agreement Ex, P1, deposed about the execution of agreement to sell in his presence between the parties, and receiving Rs.37,45,000/- as earnest money, out of total sale consideration of Rs.40 lacs by the defendant from the plaintiff. 9. On the other hand, defendant (DW-3) stated as per the written statement. Ramesh (DW-1) deposed about taking the loan by defendant from plaintiff and return of Rs.20 lacs by defendant to plaintiff through his nephew. Brij Mohan (DW-2) stated about drafting of agreement to sell dated 29.11.2013 Ex DW2/A between the parties to the suit. Vivek Singh Tanwar (DW-4) placed on record account statement of Ritesh Kumar as DW-4/A. Ritesh Kumar (DW-5), stated about deposit of Rs.20 lacs in his account towards sale consideration. 10. On assessment of evidence, learned trial Court dismissed the suit of the plaintiff. Aggrieved by the findings of learned trial Court, plaintiff, filed the appeal. Learned Appellate Court on re-assessment of the evidence, decreed the suit and over-turned the decision of the learned trial Court. 11. The defendant, on being dissatisfied by the findings of the 1st Appellate Court, preferred this appeal. 12. Learned counsel for the appellant/defendant contends that the learned Appellate Court failed to appreciate the evidence in proper manner. The defendant led ample evidence to substantiate his version that agreement to sell (Ex. P1) was executed as security for the return of the loan taken by witnesses on the material facts set out by the defendant. Learned counsel contends that Ramesh (DW-1) and Ritesh Kumar (DW-5), the nephews of the plaintiff, aided the version of the defendant. Brij Mohan (DW-2) also proved that earlier an agreement to sell dated 29.11.2013 (Ex.DW2/A) & receipt dated 29.11.2013 (Ex.DW2/B) was executed between the parties, on raising the loan by the defendant from the plaintiff and its cancellation. 13. Learned counsel submits that learned trial Court rightly disbelieved the version of the plaintiff by concluding that Shiv Dutt Sharma (PW-2), the scribe of the agreement in question, failed to prove payment of Rs.37,50,000/- towards sale consideration under the agreement as claimed by the plaintiff. Similarly, Jai Pal Singh (PW-4) an attesting witness to agreement also failed to prove any earnest amount was paid in his presence, owning to the contradictory stand taken by the witness in this regard. 14. Similarly, Jai Pal Singh (PW-4) an attesting witness to agreement also failed to prove any earnest amount was paid in his presence, owning to the contradictory stand taken by the witness in this regard. 14. The learned counsel submits that the plaintiff failed to explain that despite alleged payment of the major part of the sale consideration to the defendant, the sale deed was not executed immediately, neither the plaintiff took possession of the suit land and kept silent for six months. Learned counsel submits that these material circumstances in fact go to make the version of the plaintiff doubtful and the version of the defendant probable, that agreement to sell was executed for the purpose of security of loan amount and it was never intended to be used as such, which learned appellate Court failed to consider all this. 15. Learned counsel further submits that the contents of the affidavit Ex.P3 do not indicate that plaintiff had ready money with him on the alleged since it is for the plaintiff to prove his case and is not permitted to take advantage of weakness or no case of the defendant, the learned trial Court rightly disbelieved plaintiff’s version holding it unworthy of reliance and rightly did not grant the discretionary relief of specific performance. The learned counsel on these submissions submits to allow the appeal and dismiss the suit of the plaintiff. 16. On the other hand, learned counsel for the plaintiff supported the findings of the learned 1st Appellate Court, stating that same are based on sound application of evidence and law governing the issue. Learned counsel contends that plaintiff proved the due execution of agreement to sell Ex.P1 by examining the Stamp Vendor (PW-3); the deed writer (PW-2), who drafted the agreement to sell Ex.P1 and the attesting witness (PW-4) who attested its execution. All these witnesses testified about due execution of agreement to sell between the parties and payment of earnest money to the defendant by the plaintiff. The agreement to sell Ex.P1 was executed to be acted upon and it was a genuine transaction. 17. Learned counsel submits that defendant, also does not dispute the execution of agreement to sell Ex. P1, however, pleaded it was executed as security for repayment of loan, which he took from the plaintiff. The agreement to sell Ex.P1 was executed to be acted upon and it was a genuine transaction. 17. Learned counsel submits that defendant, also does not dispute the execution of agreement to sell Ex. P1, however, pleaded it was executed as security for repayment of loan, which he took from the plaintiff. Learned counsel submits that in circumstances onus was upon the defendant to prove that agreement to sell Ex. P1 was executed as security, but led no cogent and reliable evidence in this regard. Learned trial Court also observed that defendant failed to establish his version beyond doubt. 18. Learned counsel submits that once execution of agreement to sell is duly proved, all ancillary submissions regarding fixing of a long date of huge amount of earnest money are of no consequence. It is stated that an affidavit (Ex.P3) and legal notice (Ex.P4), establish the plaintiff’s readiness and willingness to execute the agreement to sell. Furthermore, filing of a suit for specific performance, reinforces this element of readiness and willingness on the part of the plaintiff. Learned counsel submits that the learned Appellate Court rightly decreed the suit after properly appreciating the evidence. A prayer is made to dismiss the appeal, sans merits. 19. I have heard learned counsel for the parties and have gone through the record with their valuable assistance. 20. Insofar as oral testimonial account of plaintiff and his witnesses is concerned, there is no reason to disbelieve them, particularly, since the defendant admits to the execution of agreement to sell Ex. P1 and receipt Ex.P2. It is not the case of defendant that his signatures were obtained on blank paper and that the documents i.e. agreement to sell (Ex. P1) or receipt (Ex. P2) were later prepared. Nor it is defendant’s case that documents Ex.P1 and Ex. P2 were executed under any misrepresentation of facts regarding their nature. However, his defence is that he has had a longstanding financial relationship with plaintiff, having previously borrowed loans from him. Ex. P1 is one such agreement to sell, executed as a security, as per their practice, as he had taken loan from the plaintiff in 2015 and in January, 2016 Rs.18 lacs being due towards him. Consequently, he executed an agreement (Ex.P1) and receipt (Ex.P2) as security. He claims to have repaid the loan amount in full by making payment of Rs.20 lacs along with interest on 04.07.2016. Consequently, he executed an agreement (Ex.P1) and receipt (Ex.P2) as security. He claims to have repaid the loan amount in full by making payment of Rs.20 lacs along with interest on 04.07.2016. 21. Once the defendant admits to the execution of agreement to sell Ex. P1 and receipt Ex. P2, and his signatures on them, the onus shifts upon him to prove his version of events. Nonetheless, to discharge the initial onus to prove the due execution of agreement to sell, the plaintiff apart from appearing as PW-1, testifying about all the facts related to the execution of agreement to sell by defendant of land measuring 16 kanals for total sale consideration of Rs.40 lacs and the payment of sale consideration Rs.37,45,000/-, also examined other witnesses. PW-2 proved the writing of agreement to sell Ex. P1. In these circumstances, plaintiff’s (PW-1) admission that he was not aware of the contents of his testimonial affidavit Ex. PW1/A is of no consequence, as during cross-examination, he answered all the question concerning the execution of the agreement to sell. The defendant failed to discredit the statement of the plaintiff, the scribe (PW-2) or the stamp vendor (PW-3). Similarly, the statement of attesting witness (PW-4) that no exchange of money took place in his presence is also of no consequence. The witness clarified that he had asked the parties about payment of money. Therefore, any suggestion that the agreement was executed solely for security of repayment of loan has not been substantiated by the defendant. 22. On the contrary, the defendant has raised the plea, he had taken loans from the plaintiff on earlier occasion as well, and to secure the loan amount, the plaintiff would have an agreement to sell executed from him. After repayment, the plaintiff would then return and cancel the agreement. To prove his version, defendant appeared as DW-3 and examined Ramesh DW-1 nephew of plaintiff and Brij Mohan DW-2, who produced an agreement to sell dated 29.11.23 Ex.DW2/A and receipt Ex.DW2/B, allegedly executed between the plaintiff and the defendant. However, in his 29.11.2013 Ex. DW2/A and Ex. DW2/B nor was the same put to the plaintiff. In the light of these infirmities, the defendant’s version is clearly not credible. 23. However, in his 29.11.2013 Ex. DW2/A and Ex. DW2/B nor was the same put to the plaintiff. In the light of these infirmities, the defendant’s version is clearly not credible. 23. Furthermore, in the pleadings, the defendant has not specified how much amount was borrowed, on what rate of interest, or on which date and month the loan was taken from the plaintiff, or why the agreement to sell Ex.P1 was executed later, for an outstanding amount of Rs.18 lac. The defendant’s pleadings in this regard are very vague and do not seem probable. It was incumbent upon the defendant to raise specific pleadings regarding taking of loan from the plaintiff with details of the terms of loan and its amount, which as noted were not raised by the defendant. 24. The version of the defendant that he repaid the amount of Rs.20 lacs to the plaintiff through Ramesh (DW-1) the nephew of the plaintiff, who later deposited the amount in the bank account of Ritesh (DW-5) the other nephew of the plaintiff is not proved on the record. Ritesh (DW-5) testified that said amount was his own money and denied that said amount was the loan amount, which defendant repaid to plaintiff. The defendant led no other evidence to establish that he repaid Rs.20 lacs to plaintiff. The defendant (DW3) and Ramesh (DW-1), the attesting witness, both have admitted that agreement to sell Ex.P1 does not mention that it was executed as security. As discussed above, defendant failed to establish there was any loan transaction between the parties or document Ex.P1 was executed as a security for repayment of the amount and document Ex.P1 was not intended to be used as such. 25. Now, coming to the aspect of readiness and willingness. Law is settled that plaintiff, who is seeking specific performance of the agreement must establish his readiness and willingness continuously until the decree is granted. In the present case, the testimonial account of the plaintiff that he has always been and continues to be, ready and willing to perform his part of the contract has remained unrebutted. This claim is further corroborated by the fact that the plaintiff had paid a significant amount of Rs.37,45,000/- towards sale consideration, out of total amount of sale consideration of Rs.40 lacs. This claim is further corroborated by the fact that the plaintiff had paid a significant amount of Rs.37,45,000/- towards sale consideration, out of total amount of sale consideration of Rs.40 lacs. Further, the plaintiff visited the office of Sub-Registrar, Hathin on 13.06.2016 the day after the due date for the execution of the sale deed, as the original target date 12.06.2016 fell on a Holiday. The plaintiff marked his presence by way of affidavit (Ex.P3) and even sent a legal notice (Ex.P4), calling upon the defendant to honour the agreement to sell (Ex.P1). Evidently, the defendant did not reply to the notice, rebutting the claim of the plaintiff and submitting his version. These material facts and circumstances have remained unchallenged, proving plaintiff’s version of execution of agreement to sell and his readiness and willingness to fulfill his part of the contract. The contentions of the learned counsel for the defendant that long duration for execution of sale deed and non taking of possession of the subject property after paying the major portion of sale consideration, cast doubt on plaintiff’s willingness and readiness does not hold weight, these circumstances do not support the defendant’s version of events. Moreover, the defendant failed to provide any evidence to rebut the plaintiff’s case. Further more, defendant presented no evidence or circumstance to show that the plaintiff was not willing and ready to perform his part of agreement. Given facts as a necessary implication, based on the proof of the due defendant is bound to honor the agreement. Law is settled that, once an agreement to sell is proved, the decree of specific performance must follow. The principles as cull out in cited case law Pappammal @ T. Papppa vs. P. Ramasamy decided on 29.03.2012 in S.A. No. 943 of 2011 and M.P. No. 1 of 2011; Gangabai W/o Rambilas Gilda vs. Chhabubai W/o Pukharajji Gandhi; 1982 AIR 20; Tarwinder Mohan Singh Bhatia vs. Amrik Singh & Others decided on 15.01.2009 in RSA-3898-2006 and M. Narayana Swamy vs. S. Narasimhappa, 2018 (3) ICC 556 are concerned, there is no doubt on the proposition of law discussed therein, but same are distinguishable on their facts. 26. In light of the discussion made above, I find no illegality in the findings recorded by learned 1st Appellate Court, same are based on sound appreciation of evidence available on record. 26. In light of the discussion made above, I find no illegality in the findings recorded by learned 1st Appellate Court, same are based on sound appreciation of evidence available on record. No ground for interference is made out much less involvement of any substantial question of law. 27. No other point urged. 28. Resultantly, there is no merit in the appeal and is, hereby, dismissed. 29. Since the main case has been decided, pending miscellaneous application(s), if any, are also disposed of accordingly.