Punjab-Haryana High Court
Baldev Raj Gupta vs Babu Ram on 4 March, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.3221 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3221 of 2012 (O&M)
Date of decision:04.03.2014
Baldev Raj Gupta ....Appellant
Versus
Babu Ram ....Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Rakesh Kumar Sharma, Advocate
for the appellant.
RAKESH KUMAR GARG, J (ORAL)
This is plaintiff' second appeal challenging the judgment and decree of the lower Appellate Court whereby appeal of the defendant has been accepted and judgment and decree of the trial Court dated 15.01.2010 has been set aside resulting into dismissal of his suit for specific performance of the agreement to sell in question.
As per the averments, as set up in the plaint, defendant- respondent entered into an agreement to sell on 25.08.1999 with regard to suit property for a consideration of ` 1,50,000/- with the appellant and received a sum of ` 50,000/- as earnest money. The possession of the suit property was handed over to him and the date for execution and registration was stipulated as 16.10.2001. The balance sale consideration was to be paid at the time of registration of the sale deed. According to the appellant, he requested the Kadian Savita 2014.03.07 11:53 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3221 of 2012 (O&M) 2 defendant to get the sale deed executed in his favour by 16.10.2001 and the respondent assured him to do so. On 16.10.2001, defendant did not turn up in the office of Sub Registrar, Jagadhari. Thereafter also, he requested the defendants many times to get the sale deed executed and registered in his favour. He also issued a legal notice dated 25.10.2001 which was sent through registered AD post upon him but the same was returned with the remarks of 'Refusal'. Plaintiff had always been ready and willing and was still ready and willing to perform his part of the contract but the defendant was not doing so. Hence the necessity arose to file the instant suit.
Defendant appeared and filed his written statement raising various preliminary objections. On merits, it was stated that he never entered into the alleged agreement with the plaintiff who was money lender. Further, defendant was in dire need of money because of engagement ceremony of his daughter. Thus, he took a loan of ` 5,000/- from the plaintiff who taking the undue benefit of his urgent necessity, took his signatures on some blank papers and assured that he would return the same on repayment of the said loan amount but despite the repayment of the loan amount along with interest, he did not return the said papers and by misusing the said blank signed papers, thus, he was liable to be prosecuted for cheating etc. It is the further case of the appellant that he had earlier also taken a loan from the plaintiff in this manner in the year 1996 which was duly returned by him. He never refused to receive any notice from the plaintiff. Thus, all other allegations were denied and Kadian Savita 2014.03.07 11:53 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3221 of 2012 (O&M) 3 dismissal of the suit was prayed for.
On the basis of the pleadings of the parties, following issues were framed:-
1. Whether defendant entered into an agreement to sell on 25.8.1999 to sell the suit property? OPP
2. Whether suit of the plaintiff is not maintainable?
OPD
3. Whether plaintiff has no locus standi to file the present suit? OPD
4. Relief.
To support their case, parties led oral as well as documentary evidence. After appreciating the evidence and considering the arguments advanced on their behalf, trial Court decreed the suit of the plaintiff-appellant with costs and directed the defendant-respondent to execute and get registered a sale deed in favour of the plaintiff regarding the suit property on receipt of balance sale consideration.
Feeling aggrieved from the judgment and decree of the trial Court, defendant-respondent filed an appeal before the First Appellate Court. Vide impugned judgment and decree dated 11.04.2012, lower Appellate Court accepted the appeal and reversed the findings of the trial Court on all the material issues and set aside the aforesaid decree of the trial Court resulting into dismissal of the suit. While accepting the appeal, lower Appellate Court found that there were interpolations and cuttings in the agreement to sell in Kadian Savita 2014.03.07 11:53 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3221 of 2012 (O&M) 4 question which could not be explained and there were glaring discrepancies in the statements of the witnesses produced by the appellant in support of his case. Lower Appellate Court further found that plaintiff has not been able to prove readiness and willingness to perform his part of the agreement, as according to the statement of Deed Writer-Hukam Chand who appeared as PW2 and the entry in his register, the last date for execution and registration of sale deed was 15.05.2000 whereas the plaintiff after making cutting on this date fixed as 16.10.2001. In Ex.C1, he has tried to prove the last date of execution and registration as 16.10.2001. Thus, it was not proved on record that appellant was ready and willing to perform his part of contract by stipulated date i.e. 15.05.2000.
Feeling aggrieved from the judgment and decree of the lower Appellate Court, plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:-
i. Whether the judgment and decree passed by the First Appellate Court is illegal, perverse against the pleadings of the parties and is not sustainable in the eyes of law?
ii. Whether the learned Appellate Court has erred while forming its opinion regarding the cutting on the agreement to sell Ex.C1?
In support of his case, learned counsel for the appellant has vehemently argued that the execution of agreement to sell in question has been fully proved on record and appellant has also Kadian Savita 2014.03.07 11:53 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3221 of 2012 (O&M) 5 proved his readiness and willingness to perform his part of the contract whereas defendant has denied execution of the agreement in question and has taken a defence that his signatures were obtained on the blank papers but there was nothing on record to substantiate his plea. Not only this, the appellant was entitled to the decree for specific performance of the agreement to sell in question and the findings of the lower Appellate Court being perverse are liable to be set aside. Learned counsel for the appellant has further argued that where a vendor denied the agreement and admits his signatures and receipt of earnest money, variation/alterations will not effect the factum of execution of the agreement. In support of his case, learned counsel for the appellant has placed reliance upon the judgments of this Court in the case of Bakhtawar Singh versus Gurdial Singh 2003(1) RCR (Civil)242, Gurbachan Singh and another vs. Gurmit Singh 2003(4) RCR(Civil) 223 and Ranbir Singh versus Satbir Singh 2010(2) RCR(Civil) 712.
I have heard learned counsel for the appellant and perused the impugned judgment and decree of the lower Appellate Court and the judgments cited at the bar.
At the outset, it may be noticed that there is no dispute with regard to proposition of law as canvassed in the aforesaid judgments relied by the learned counsel for the appellant. However, all these judgments are not applicable in the facts and circumstances of the case and are distinguishable on facts.
It may be noticed that while non-suiting the appellant, Kadian Savita 2014.03.07 11:53 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3221 of 2012 (O&M) 6 lower Appellate Court has recorded a finding on the basis of evidence on record that there are interpolations and cuttings in the agreement Ex.C1 and the appellant has failed to explain such cuttings and interpolations. Appellant has further failed to explain various discrepancies in the statements of his witnesses. Even the deed writer's statement has created suspicion. Not only this, lower Appellate Court further found that appellant in his cross examination has stated that agreement was signed by one Advocate, One Om Parkash and one Sushil Kumar however in the register of deed writer he, Babu Ram, Om Parkash and Sushil Kumar had put their signatures, whereas, he has further stated that he had also obtained the signatures of some other persons on the agreement Ex.C1 whose signatures were not obtained in the register of the deed writer, whereas deed writer Hukam Chand(PW2) in his testimony has stated that he cannot say that any Advocate had also put his signatures on this agreement.
According to his statement, agreement Ex.C1 has interpolations and cuttings. He admitted that the last date for execution and registration of sale deed as per the entry in the register of PW2 was 15.5.2000 and he was not able to prove as to why last date was written as 16.10.2001. The aforesaid deed writer admitted the cuttings where the date was mentioned in the first page of agreement in question and he could not explain the cutting.
In view of the aforesaid voluminous evidence on record, it cannot be argued that appellant was entitled to the specific Kadian Savita 2014.03.07 11:53 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3221 of 2012 (O&M) 7 performance of the agreement to sell in question, simply because defendant has not denied his signatures on the aforesaid agreement to sell in question.
It is well settled that this Court will not substitute its own view with the findings of the Courts below on re-appreciation of evidence while exercising powers under Section 100 CPC. Moreover, under Section 20 of the Specific Relief Act, it is the discretion of the Courts below to grant or not to grant the relief of specific performance of agreement to sell in question. Even if, the agreement is proved, it is not the case of the appellant that the lower Appellate Court has exercised its jurisdiction under Section 20 of the Specific Relief Act arbitrarily or whimsically.
In view thereof, no substantial question of law, as raised, arises in this appeal.
Dismissed.
March 04, 2014 (RAKESH KUMAR GARG)
savita JUDGE
Kadian Savita
2014.03.07 11:53
I attest to the accuracy and
integrity of this document
High Court Chandigarh