Punjab-Haryana High Court
Kishori Lal vs Jagmal on 20 July, 2000
Author: Swatanter Kumar
Bench: Swatanter Kumar
ORDER Swatanter Kumar, J.
1. The learned first appellate Court, while rejecting the appeal filed by the appellant-plaint iff against the order dated 29.5.1996 passed by the learned trial Court decreeing the suit for recovery of Rs. 15,150/-, held as under :-
"The circumstances of the presenl case indicate that the plaintiff does not deserve the decree of specific performance. There are reasons for the same. The plaintiff himself in the cross examina-iion of DW-1 Jagmal has put a question that he alongwith his brother have resold the land to Sube Singh, Hajrai Lal, Ashok Kumar and Sunda Ram and for he reasons best known to the plaintiff, they have not been made parties to the suit. Secondly, the vital aspect is that on the same day i.e. 24.7.1986 Jagmal defendant also executed a pronote in favour of plaintiff Kishori Lal for having borrowed a sum of Rs. 3,000/- from him carrying rate of interest 1.50 per cent per month. This itself IS the case of the plaintiff. The plaintiff himself has also placed on the record the copy of judgment dated 6.10.1993 passed by Shri Dharampal, the then learned Sub Judge Ist Class, Narnaul, in a suit titled Kishori Lal versus Jagmal, wherein, Kishori Lal sought the recovery of Rs. 4400/- i.e. the principal amount plus interest, on the basis of said pronote, whereby the said court had decreed the suit. To my mind, the said agreement to sell was only a collateral security to the promissory note. If Jagmal had received Rs. 15,150/- from Kishori Lal as earnest money, there was no occasion with him to get a" loan of Rs. 3,000/- on the same day from Kishori Lal against the execution of said pronote."
2. This finding of the learned first appellate Court, which in turn affirmed the judgment of the learned trial Court dated 29.5.1996, has been impugned in the present appeal amongst others for the following reasons :-
1. Once the learned Courts below had held that the plaintiff had proved his case, then the courts below had to grant a decree for specific performance in favour of the plaintiff, in consonance with the settled principles of law.
2. The learned Courts below have declined relief to the plaintiff on the case, which was neither pleaded nor proved by the defendant.
3. The learned Courts below have recorded the finding on the basis of conjectures and have failed to exercise jurisdiction lawfully vested in the Court. In other words, the finding recorded is palpably wrong and is erroneous,
3. On the other hand, learned counsel appearing for the respondent No. 2, while relying upon the judgment of Hon'ble Supreme Court of India in the case of S. Ran-garaju Naidu v. Thiruvarakkarasu, AIR 1995 Supreme Court 1769 ; 1995(3) RRR 298 (SC), contended that the relief of specific performance has been rightly declined by the learned Courts below. Furthermore, both the courts below have taken a concurrent view. As such, this court should not interfere in the judgments of the learned Courts below in a regular second appeal.
4. In order to appreciate the merits of the respective contentions raised by the learned counsel for the par-tics, reference to the basic facts would be necessary,
5. According to the plaintiff, the defendant is the owner of 1/2 share of the land measuring 12 kanals 5 marlas situated within the revenue estate of Village Sa-luni, Tehsil Namaul, District Mahendergarh. The defendant agreed to sell the said land to the plaintiff, which was accepted by the plaintiff and parties entered into an agreement to sell dated 24.7.1986. The plaintiff paid a sum of Rs. 15,150/- to the defendant, while the remaining sale consideration of Rs. 7,000/- was to be paid at the time of registration of the sale deed, which was to be executed on or before 26.6.1987. On 26.6.1987, the plaintiff went to the office of Sub Registrar with money but the defendant did not turn up to perform his part of contract. The plaintiff was always ready and willing to perform his part of the agreement but as the defendant was not willing and ready to perform his part of contract, he had filed a suit for specific performance of the contract and in alternative prayed for a decree of recovery of Rs. 15,150/- with interest and also Rs. 2,000/- as compensation.
6. The suit was contested by the defendant. The defendant admitted that he is the owner of the property in question to the extent of 1/2 share, however, he totally denied the fact that he had ever executed the agreement in question and also denied that he had received any money on the date, as referred to by the plaintiff, at all. According to the defendant, the plaintiff was planning to take some loan from the bank for purchase of camel cart and thresher and for this purpose, the plaintiff had asked the defendant to execute general power of attorney in his favour. Thus the plaintiff had taken the defendant to court and had there he got certain blank papers signed from him. Resultantly, agreement in question was result of mis-representation and fraud played by the plaintiff on the defendant. On these averments the defendant prayed for dismissal of the suit with special cots under Section 35A of the Civil Procedure Code. The plaintiff filed a replication and to assert his claim of readiness and willingness, he further stated that the story of loan put forward by the defendant was false and baseless. On the contrary, the defendant had borrowed Rs. 3,000/- on the same date, for which he executed a separate pro note and receipt. On the pleadings of the parties, learned trial Court framed the following issues :-
"(i) Whether the parties have entered into an agreement of sate, as alleged ? OPP
(ii) Whether the plaintiff has always been ready and willing to perform his part of contract ? OPP
(iii) Whether the suit is not maintainable in the present form ? OPD
(iv) Whether the alleged agreement has been brought into existence by way of misrepresentation etc. as alleged ? OPD
(v) Whether the defendant is entitled to special cost ? OPD
(vi) Relief."
7. The parties led evidence and the learned trial Court, vide its judgment and decree dated 29.5.1996, decided all the issues against the defendant and in favour of the plaintiff but still granted the alternative relief of recovery of money to the plaintiff.
8. Upon appeal, the learned first appellate Court affirmed the finding of the learned trial Court as well as relief granted by the Court, as already noticed, vide its judgment and decree dated 9.3.1999, giving rise to the present appeal.
9. Learned trial Court, while deciding issue Nos. 1 and 2, has come to a categorical finding that the plea taken by the defendant cannot be believed and also that the plaintiff was always read and willing to perform his part of the contract. In fad, the finding of fact concurrently recorded by the learned Courts below reads as :
"At the same time during his cross-examination he has denied his signatures on Ex.Pl and writing that he has received a cash sum of Rs. 15150/- in his hand, thus at one place he has stated that the signatures were taken on blank papers, while at the same time he has denied his signatures on Ex.P1 if it was on a blank paper. Moreover, Ex.Pl is a stamp paper of Rs. 3/- which has been purchased in his name as Jagmal and is even signed by him in the presence of seller of the stamp papers and that signature duly tally with the signature below the agreement to sell on the perusal by the bare eye, thus his said signatures mark-B and A being of the same person and before different persons proved that they are signed by him. During his cross-examination he has stated that he does not remember when he has borrowed loan from the bank. Thus, under such circumstances, one cannot believe the plea of the defendant that the plaintiff who is an ordinary person would have got the bank loan of the defendant right (write ?) off and for that purpose the defendant was authorising the plaintiff by executing a general power of attorney in favour of the plaintiff to peruse his case with the bank authorities. Moreover, no such bank loan paper and document placed on record. Besides it the plaintiff has also produced a copy of his application dated 26.6.1987 which bears the order of Sub Registrar, Namaul on the same day which is Ex.PA which shows that the plaintiff appeared before the Sub Registrar to get the sale deed 24.7.1986 on payment of Rs. 7000/- the balance sale consideration before incurring other expenses of the registry, but defendant Jagmal failed to turn up. Thus, the plaintiff was always ready and wilting to perform his part of contract."
10. Where a plaintiff is able to establish by leading cogent evidence in regard to execution of agreement and its validity, and particularly establishes his readiness -and willingness to perform his part of the contract, the Court would normally be inclined to grant the relief of specific performance rather than declining the same or granting alternative relief. It will be more so where the court finds that the stand taken by the defendant was false or unbelievable. Once the plaintiff satisfied the aforestated ingredients, the court would normally exercise the discretion vested in it under the provisions of the Specific Relief Act to grant such a relief rather than take recourse to the exception of declining such a relief. It is a settled principle of law that an agreement to sell of immovable property is not normally compensationable in terms of money. In the present case, the stand of the defendant was that of total denial. On the one hand, the defendant took plea that he had not signed any agreement, while on the other hand, the plea was that the blank papers were got signed by the plaintiff from him. The defendant had not taken any plea of prejudice being caused to him as a result of delay in conclusion of the proceedings and any lapse on the pan of the plaintiff in instituting the suit. These essential elements should be proved necessarily by the defendant, who pleads before the Court that plaintiff should be granted an alternative relief than that of specific performance in order to balance the equities between the parties and that grant of specific performance would give plaintiff an unfair advantage over the defendant. The plaintiff would take undue advantage because of his own wrong and delay.
11. The Hon'ble Supreme Court, in the case of Ka-mesh Chandra Chandiok and another v. Chani Lal Sabharwal (dead) by his legal representatives and others, AIR 1971 Supreme Court 1238, where a plot has been transferred to a third party and cloud was cast on the title of the defendant and also where the plaintiff had asked for execution of the alternative decree of specific performance granted by the trial Court, held as under :-
"There have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. There was no material on record to show that A at any stage was not ready and willing to perform his part of contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained."
12. In the cases of Surjeet and others v. Ombir Singh, (1998-2) PLR 752 : 1998(3) RRR 693 (P&H), and Lt. Colonel Jaswant Singh v. Daljil Singli, (1998-3) PLR 495 : 1998(3) RRR 82 (P&H), different Benches of this Court held that a suit for specific performance of an agreement to transfer a movable property should be granted to the plaintiff particularly where the breach is committed by the seller. After discussing the law in detail their Lordships have also held that if no fraud is attributable to the plaintiff then relief of specific performance cannot be denied just because damages could be paid to the plaintiff.
13. A Division Bench of this Court in the case titled as Gurdial Singli and others v. Darshan Singh and another, 1995 PLJ 401 : 1995(3) RRR 508 (P&H)(DB), held as under :-
"7. We are not impressed by this argument. The learned Single Judge in his detailed and well reasoned judgment which is supported by several authorities, has held that the plaintiffs, in the facts and circumstance of the case, are entitled to the special performance of the agreement dated April 5, 1971. The learned Single Judge while referring to Section 10 of the Specific Relief Act, rightly held that the plaintiffs are entitled to the special performance of the agreement and the case of the appellants does not fall in the Explanation. As indicated earlier, the learned Sub Jude held that the plaintiffs had proved the agreement to sell dated April 5, 1971 and on the basis of the finding, awarded a decree for the refund of the earnest money of Rs. 12,000/- and compensation of Rs. 5,000/-. This decree was challenged only by the plaintiffs and not by the defendants. It must, therefore, follow that no amount of agreement (argument ?) can be entertained in the letters patent appeal about the correctness and validity of the agreement to sell dated April 5, 1971. Once the agreement to sell is proved, ordinarily it is followed by a decree for specific performance unless it is shown that the case falls within the explanation provided under Section 10 of the Specific Relief Act."
14. Still in another case titled as Ram Das v. Ram Lub-haya, (1998-2) PLR 326 : 1998(2) RRR 660 (P&H), this Hon'ble Court after following the principles enunciated by the Hon'ble Supreme Court of India in its various judgments right from 1971 to 1996, held as under :-
"The scheme of this Act clearly shows that where a contract is proved in accordance with law and party has acted without undue delay and has perused its remedy in accordance with law without infringing the settled canon of equily the grant of specific relief by enforcing the contract would certainly be a relief which equity would demand. The legislative intention behind Section 20 cannot be stated to be that a party first fails to perform ifs part of the agreement later contests litigation on frivolous basis then that party cannot be permitted to raise a plea in equity that value of the property has increased disproportionaly resulting in undue advantage to the plaint iff in a suit.
11. A lawful agreement being proved and judicial conscience of the court being satisfied the equity would demand enforcement of an agreement rather than granting an alternative relief of damages to the plaintiff. It need not be reiterated that equity must give relief where equity. Equities huguam liti anciilatur ubi remediuin protest dare is a clear illustration which has been duly accepted by the Indian Courts. The time taken by the Courts in deciding suit or appeals would normally be not permitted to work to the disadvantage of the party to the lis, Acts of the courts shall cause prejudice to none was so stated by the Hon'ble Apex Court in the case of Atma Ram Mittal v. Ishwar Singh Punia, A.I.R. 1988 S.C. 2031.
12. A person who breaches the terms of the agreement and is found erring during adjudication cannot be permitted to seek advantage over the other party in equity. One who offends the law cannot seek the help of law. Similarly, one who breaches contracts and his obligation cannot be permitted to take advantage over thereof that too to the disadvantage of the other party."
15. Having discussed in detail the principle of law applicable to such cases, I now proceed to discuss the merits of the finding recorded by the learned Courts below. It is a settled principle of law that a defendant must plead his case and prove the same in accordance with law. As already noticed, admittedly no such plea was taken by the defendant in his written statement that the agreement in question was a security or collateral security for execution of pronote executed on the same date. On the other hand, the defendant had specifically pleaded that he never executed an agreement, while at another place he submitted in evidence that he had signed blank papers. The story put-forward by the defendant of plaintiff persuading him to execute a power of attorney to take loan from the bank is without any credence and has rightly been rejected by the learned courts below. The learned courts below have completely mis-appreciated the evidence that the plaintiff had filed different suit for recovery of amount based on the pronote of the same date and that suit had been decreed with costs in favour of the plaintiff and against the defendant.
16. In the present case, the plaintiff had paid a sum of Rs. 15,150/- on the date of execution of the agreement sand the balance amount was payable at the time of registration of the sale deed. As already noticed, the defendant has taken different stand in his written statement and evidence. The approach of the learned trial Court in denying the relief of specific performance While referring to the pro-note of Rs. 3,000/- which was neither pleaded in the written statement nor any issue had been framed in that regard, is erroneous. Merely because the plaintiff, in order to meet the averments made in the written statement, had mentioned execution of the pronote for a sum of Rs.3,000/- in addition to the payment of the sale consideration afore-referred, would not justify creation of a new case by the Court, which was neither pleaded nor proved by the defendant. The finding of the learned Courts below in this regard is based upon conjectures and moreso in the light of the fact that the decree in favour of the plaintiff for recovery of amount of pronote has already been passed. I must also notice that no issue was framed by the learned trial Court in regard to the pronote, rightly so, as it was not directly or indirectly subject matter of the controversy in the present suit. In absence of any pleadings, issue in that regard and parties having been given no opportunity to lead evidence, the Court could not have created a defence for the defendant to the prejudice of the plaintiff. Finding of the fact recorded by the Court must necessarily be based upon oral and documentary evidence on record duly linked to the evidence of the parties. The Court could not have recorded a finding of fact on the basis of its impression. In my humble view, the finding arrived at by the learned Courts below, as noticed at the very outset of this judgment, is contrary to the record and is erroneous.
17. The reliance placed upon by the learned counsel for the respondent on the judgment of Hon'ble Supreme Court in the case of S. Rangaraju Naidu (supra) does not forward the case of the defendant. In that case, it was found as a matter of fact that agreement to sell was executed to discharge the liability of the very same promissory note which had been executed by the defendant in that suit. The amount to be recovered was based upon the earlier decree passed by the Court for recovery of money in a suit in which some amount out of total decreetal amount had been paid. Their Lordships of Hon'ble Supreme Court found that the agreement to sell was executed by the parties with the intention to secure and recovery the dues with interest and they had no intention actually to transfer the property. In these circumstances, their Lordships had granted alternative relief of recovery of money. The facts of that case, in my humble view, have no application to the fact of the present case.
18. In view of the above discussion, I have no hesitation in coming to the conclusion that three arguments raised on behalf of the appellant have to be answered in favour of the appellant and against the respondent,
19. For the reasons aforestated, the present appeal is accepted. The judgments and decrees of learned trial Court and learned first appellate Court are modified to the extent that the plaintiff, appellant herein, would be entitled to decree for specific performance of the agreement to sell dated 24.7.1986. The appellant shall deposit the balance sale consideration with interest at the rate of 12% per annum from the date of institution of the suit till the date of deposit. It is for the reason that this money has been retained by the appellant and the respondent has been deprived thereof during the pendency of the court proceedings. If the parties would have performed agreement to sell without the intervention of the court, the respondent herein would have received the said sum earlier in point of time and in any case fault cannot be attributable to him after the year 1996 when he succeeded in the learned trial Court. It is a settled principle of law that no party should suffer on account of proceedings pending before the Court. I have awarded the above rate of interest for balancing the equities between the parties and more particularly that the respondent herein had succeeded before the learned Courts below.
This appeal is, accordingly, allowed in the above terms. In the peculiar facts and circumstances of the case, there shall be no order as to costs.
20. Appeal allowed.