Punjab-Haryana High Court
Sukhvinder Kumar vs Suresh Kumar & Anr on 22 September, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
MUKESH KUMAR SALUJA
RSA No.3963 of 2013 1 2014.09.30 12:02
I attest to the accuracy and
authenticity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No.3963 of 2013 (O&M)
Date of decision:22.09.2014
Sukhvinder Kumar
...Appellant
Versus
Suresh Kumar and others
...Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.Babbar Bhan, Advocate for the appellant.
RAMESHWAR SINGH MALIK, J. (Oral)
It is defendant's second second appeal against the concurrent findings, recorded by both the learned courts below, whereby suit for declaration and injunction filed by the plaintiffs, was decreed.
Brief facts of the case, as noticed by the learned first appellate Court in paras 2 and 3, are that defendant No.1-Tarun Bansal entered into an agreement of sale of the property measuring 1034 square yards bearing unit No.502-A to 502-G situated at award No.15, Hansi, as fully detailed and described in the head note of the plaint (hereinafter referred to as the disputed property for brevity) with the plaintiffs-respondents for a sale consideration of `15,50,000/- and received a sum of `5,00,000/- by way of cheques as well as cash on that day and the balance amount of `10,50,000/- was to be paid to the Oriental Bank of Commerce, Hansi (for short `Bank') with whom defendant No.1 had mortgaged the disputed property vide registered mortgage deed No.466 dated 29.05.1997; the MUKESH KUMAR SALUJA RSA No.3963 of 2013 2 2014.09.30 12:02 I attest to the accuracy and authenticity of this document plaintiffs made payment of `1 lakh to defendant No.1 on 25.01.2003 through cheque No.DTC248329 and amount of `l,50,000/- on 20.03.2003 through cheque No. CA 440256077 and again an amount of `60,000/- on 04.06.2003 through cheque No. CA 440256980 and defendant No.1 executed four respective receipts in this regard; the plaintiffs besides making payment of `8,70,000/- as stated above also made payment of an amount of `1,20,000/- on 04.08.2003 and again an amount of `1,20,000/- on 01.10.2003 through cheque No.256982 and another one lakh rupee on 29.12.2003 and an amount of `1,64,376/- on 20.2.2004 through cheque No.61360 and in this way, the plaintiffs have paid whole of the amount of the sale consideration of `15,50,000/- of the disputed property to defendant No.1; defendant No.1 handed over the actual physical possession of the disputed property to the plaintiffs on 10.05.2002 and it was agreed between the parties that the registration charges would be borne by the plaintiffs and it was also agreed that as and when the plaintiffs would desire, defendant No.1 would execute and get registered the sale deed of the disputed property in favour of the plaintiffs at their expenses; for the purposes of execution of the sale deed on the disputed property, defendant No.1 executed on general power of attorney in favour of plaintiff No.2 on 10.05.2002 and on the same day defendant No.1 also executed one will in favour of the plaintiffs and that both the documents were registered in the office of Sub Registrar, Delhi; now the plaintiffs came to know that defendant No.1 had got cancelled both the aforesaid general power of attorney as well as Will earlier executed by him on 10.05.2002 and was hesitating in executing and getting registered the sale deed of the disputed property in favour of the plaintiffs; the plaintiffs MUKESH KUMAR SALUJA RSA No.3963 of 2013 3 2014.09.30 12:02 I attest to the accuracy and authenticity of this document were still ready and willing for getting executed sale deed of the disputed property in their favour and thus got issued one legal notice on 19.11.2003 which was received by defendant No.1; defendant No.1 in order to cause loss to the plaintiffs, had sold away the disputed property to defendant No.2 by way of registered sale deed No.1336 dated 11.06.2007 which alongwith the site plan so appended with it is wrong, against law and facts, nullity, not binding on the rights of the plaintiffs and was hit by Section 52 of the Transfer of Property Act as well as by the doctrine of lispendens; defendant No.1 also moved an application No.16-C of 01.10.2003 whereby he sought permission for selling the disputed property in capacity as of guardian of his son as well as daughters which was pending adjudication in the court of learned Additional Civil Judge (Sr.Divn.), Hansi; the plaintiffs asked defendant No.1 for getting executed and registered the sale deed of the disputed property in their favour and for handing over the symbolic possession of the same to the plaintiffs and the plaintiffs also requested defendant No.1 not to interfere in their possession over the disputed property and not to alienate or transfer the same but defendant No.1 was adamant in his refusal, hence, necessity arose to file the suit.
On notice, defendants appeared. Defendant No.1 filed his written statement where usual preliminary objections regarding cause of action; locus standi and maintainability etc. were taken. It was alleged by him that he never agreed to sell away the disputed property to the plaintiffs on 10.05.2002 and the alleged agreement dated 10.05.2002 and the receipts were false and fictitious; the plaintiffs filed the suit with an ulterior motive to grab the property of HUF of defendant No.1 and his other family members; the true facts were that defendant No.1 set up a firm under the MUKESH KUMAR SALUJA RSA No.3963 of 2013 4 2014.09.30 12:02 I attest to the accuracy and authenticity of this document name and style of M/s Bansal Chemicals, Kali Devi Road, Hansi of which defendant No.1 was the sole proprietor and for his firm, he raised loan from the Oriental Bank of Commerce, Hansi out of which, the term loan of `4,50,000/- and an amount of `8,00,000/- was advanced against the cash credit limit as working capital bearing interest at the rate of 17% per annum with quarterly rests and usual bank charges; the unit of the defendant No.1 caught fire on 8.10.1999 and this incident was reported to the bank but due to the non-cooperative and deficiency in services by the Bank Manager of the Bank, the unit of defendant No.1 became a sick unit and ultimately defendant No.1 was constrained to close down the said unit and consequently said M/s Bansal Chemicals was required to pay an amount of `9,76,629.80/- as on 18.11.2001 inclusive of interest at the rate of 15% per annum with quarterly rests alongwith pendent lite and future interest at the stipulated rate till the date of actual realisation to the aforesaid bank; a Civil Suit No.189-C of 2001 for recovery was filed by the said bank against defendant No.1 and his firm on 19.11.2001 and at that time, defendant No.1 was in dire need of money as the defendant and his firm were burdened with recurring interest on the advanced loan and as such, defendant No.1 and one Chander Bhan, father of the plaintiffs, entered into an understanding to the extent that he shall lend money and shall also repay the balance bank loan to save defendant No.1 and his firm from recurring interest, installments and against which defendant No.1 was required to secure the repayment of loan amount by the said Chander Bhan and in pursuance thereof, the said Chander Bhan obtained signatures of defendant No.1 on various documents under the pretext that it was a security against the repayment or loan amount of defendant No.1 and his MUKESH KUMAR SALUJA RSA No.3963 of 2013 5 2014.09.30 12:02 I attest to the accuracy and authenticity of this document firm and it was also agreed that the possession of the part of the disputed property i.e. residential portion and the shops constructed in front of the disputed property shall be delivered by the defendant No.1 to him against the interest of the loan amount by earning the rental income from the shops which were vacant at that time as well as of the residential portion; in pursuance of the said oral understanding, defendant No.1 was constrained to execute the papers as desired by said Chander Bhan against the security of repayment of the loan amount in favour of the plaintiffs; defendant No.1 had no intention to alienate the disputed property having worth of more than `50 lacs. Against a petty amount of `15.50 lacs as depicted in the alleged agreement; even otherwise it was well within the knowledge of said Chander Bhan that the disputed property belongs to HUF and the same was mortgaged with the Oriental Bank of Commerce, Hansi and the income tax clearance certificate issued by the income tax department was also issued showing the status of the disputed property which was appended with the mortgaged deed and after becoming the owner of the disputed property the same was blended with the status of HUF under-' the name and style of Tarun Bansal and sons regarding which the regular income tax returns were filed by the said HUF with the income tax department right from the day when the property came into the hands of defendant No.1 by way of Civil Court decree and thereafter it attained the status of HUF and thus defendant No.1 was not competent to sell the disputed property to the plaintiffs being HUF property; out of said oral understanding an amount of `1 lakh was paid through Cheque No.919801 dated 05.09.2001 and a sum of `2 lakh was paid in cash on 24.10.2001 which was duly credited in the account books of defendant No.1'S firm on MUKESH KUMAR SALUJA RSA No.3963 of 2013 6 2014.09.30 12:02 I attest to the accuracy and authenticity of this document 01.05.2002; similarly, an amount of `2 lakh was received by defendant's No.1 firm on 10.05.2002 in the name of defendant No.1 through Cheque No.979808 dated 10.05.2005; after the said oral understanding between defendant No.1 and said Chander Bhan, defendant No.1 of his own and on behalf of his firm amicably settled the bank loan to the extent of `9,50,000/- on 01.02.2003 by which defendant No.1 as his own and on behalf of his firm admitted his firms liabit1ity to the extent of `9,50,000/- agreed to be paid in installments out of which `2,50,000/- was agreed to be paid by 31.03.2003 and the balance amount of `7,00,000/- was to be paid by 20.03.2004 in twelve monthly installments alongwith simple interest at the rate of 11% per annum which was accepted by the then Branch Manager with the previous sanction of the Regional Manager of the Oriental Bank of Commerce; that out of said assurance, compromise and oral understanding between defendant No.1 and said Chander Bhan, he issued a cheque of `1 lakh bearing No.BT/C-248329 dated 25.01.2003 signed by plaintiff No.2 in the name of defendant No.1 which was deposited by the defendant No.1 in his account against which a cheque was issued by defendant No.1 firm in the name of Oriental Bank of Commerce, Hansi in the shape of agreed instalments; similarly on 20.03.2003 a cheque No.CA/44 0256976 for `1,50,000/- purported to be signed by plaintiff No.1 was issued by the said Chander Bhan in the name of defendant No.1 which was also deposited by the defendant No.1 in his account with the Union Bank of India, Hansi against which a cheque of the same amount was issued by defendant No.1 firm in the name of Oriental Bank of Commerce, Hansi against the second instalment of loan amount; similarly on 28.04.2003 a cheque No. CA/44 MUKESH KUMAR SALUJA RSA No.3963 of 2013 7 2014.09.30 12:02 I attest to the accuracy and authenticity of this document 0256977 for `60,000/- purported to be signed by plaintiff No.1 was issued by the said Chander Bhan in the name of defendant No.1 which was also deposited by defendant NO.1 in his account and against which a cheque of the same amount was issued by defendant No.1 firm in the name of Oriental Bank of Commerce, Hansi against third instalment of the loan amount; similarly on 04.06.2003 a cheque No.CA/44 0256980 for `60,000/- purported to be signed by plaintiff No.1 was issued by the said Chander Bhan in the name of defendant No.1 which was also deposited by defendant No.1 in his account and against which a cheque of the same amount was issued by defendant No.1 firm in the name of Oriental Bank of Corrunerce, Hansi against the fourth instalment of the loan amount; in this way, defendant No.1 took a total loan of Rs.8.70/- lacs from said Chander Bhan the father of the plaintiffs; defendant No.1 never struck any deal with either of the plaintiffs and they never came in picture during the said entire transactions and payment and execution of alleged agreements alleged receipts, alleged will and alleged power of attorney and execution of all these documents shown that this was a loan transaction and all the said documents were obtained to keep defendant No.1 under the thumb of the father of the plaintiffs and the plaintiffs at any stage had got no concern with the execution of all the alleged documents; after the last payment, the said Chander Bhan who had already hatched a conspiracy against defendant No.1 to grab the disputed property started putting pressure upon defendant No.1 that he paid almost more than 50% of the loan amount to the bank and the balance amount shall also to be paid to the bank and he obtained the agreement to sell the disputed property as well as receipts, will and power of attorney in favour of his sons at Delhi, therefore, he shall execute MUKESH KUMAR SALUJA RSA No.3963 of 2013 8 2014.09.30 12:02 I attest to the accuracy and authenticity of this document and get registered the sale deed of the disputed property in favour of his sons and also shoed the alleged agreement, receipt, Will of the defendant No.1 as also threatened defendant No.1 that if he failed to execute and get registered the sale deed of the disputed property, then he shall utilize the said documents against defendant No.1; upon knowing the cheating and conspiracy of said Chander Bhan, defendant No.1 immediately moved a written application to the Branch Manager Oriental Bank of Commerce, Hansi directing him specifically not to permit any person to operate his firm's account other than defendant NO.1 himself because defendant No.1 apprehended that the father of the plaintiffs to show the alleged readiness and willingness, shall deposit the balance amount in defendant's No.1 firm account and shall seek enforcement of through Court; however, the father of the plaintiff, in connivance with his close relative namely Ajay Saini, who was an employee of the Oriental Bank of Commerce, Hansi against the banking rules and regulations, started receiving the payment in cash an by way of cheques either from plaintiff No.2 or from said Chander Bhan against the specific instructions issued by defendant No.1 to his bank; but upon knowing the cheating and conspiracy, defendant No.1 told the entire facts to his wife who immediately took a stern action and got published public notice in a newspaper dated 17.07.2003 informing therein that the disputed property was owned by Tarun Bansal and sons HUF of which, her husband was merely a Karta and if any person deals with that property that shall be at his own risk; in furtherance of the threatening given by the father of the plaintiffs, defendant No.1 as of precautionary measure, got cancelled the alleged will as well as general power of attorney on 03.09.2003 and the said fact was got published in the newspaper on MUKESH KUMAR SALUJA RSA No.3963 of 2013 9 2014.09.30 12:02 I attest to the accuracy and authenticity of this document 14.09.2003: the recitals of the alleged agreement were full of contradictions, inconsistent pleas, against statutory provisions and the execution of the alleged Will and the alleged power of attorney or any other paper at Delhi was in itself were suspicious circumstances when it was witnessed by a regular Deed Writer namely Surender Jain who was working at Hansi for the last more than three decades besides other Deed Writers available at Hansi: when the father of the plaintiff threatened to grab the disputed property belonging to the HUF, then defendant No.1 negotiated to sell the disputed property to clear the loan amount with the proposed vendees at a market price at `55 lacs in order to repay the loan amount of the father of the plaintiffs and to discharge the liability of the Board Chemicals and thus the permission was sought on behalf of the minor co- parceners of the HUF in which proceedings the present plaintiffs appeared and, filed their written statement objecting the permission to sell the shares of minor co-parceners and consequently the petition was withdrawn on 06.05.2004: the possession of the part of the disputed property was delivered by defendant No.1 to the father of the plaintiff as a licensee to earn the profits of rent of the shops and house to meet the liability of the interest which were equivalent to each other; the shed of the factory constructed over the disputed property was still in the possession of defendant No.1 in which the machinery and other parents and articles of the factory were lying therein; the alleged will as well as alleged power of attorney was a result of cheating and conspiracy and both were got cancelled by defendant No.1 when he came to know about the cheating and conspiracy of the father of the plaintiffs. All the others averments of the plaint were denied categorically and a prayed for dismissal of the suit with MUKESH KUMAR SALUJA RSA No.3963 of 2013 10 2014.09.30 12:02 I attest to the accuracy and authenticity of this document costs was made.
Defendant No.2 also contested the suit by filing his separate written statement wherein he also took similar pleas as were taken by defendant No.1 in the written statement so filed on his behalf and in the end he also prayed for dismissal of the suit with costs., On completion of pleadings of the parties, following issues were framed by the learned trial Court:-
1. Whether defendant No. l on dated 10.05.2002 entered into an agreement of sale of the disputed property with the plaintiffs for a sale consideration of `15,50,000/- and received the total sale consideration from the plaintiffs in lieu thereof?
OPP
2. Whether the plaintiffs were and are still ready and willing to perform their part of contract? OPP
3. Whether the registered sale deed dated 11.06.2007 executed by defendant No.1 with respect to the disputed property in favour of defendant No.2 is wrong, against law and facts and has no binding effect upon the rights of the plaintiffs? OPP
4. Whether the plaintiffs have no locus standi and cause of action to file the present suit? OPD
5. Whether the suit is not maintainable in the present form ? OPD.
6. Relief.
To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial court came to the conclusion that plaintiffs have duly MUKESH KUMAR SALUJA RSA No.3963 of 2013 11 2014.09.30 12:02 I attest to the accuracy and authenticity of this document proved their case. Accordingly, their suit was decreed vide impugned judgment and decree dated 28.2.2008. Feeling aggrieved, defendants filed their first appeal, which also came to be dismissed by the learned Additional District Judge vide impugned judgment and decree dated 27.2.2010. Hence this second appeal at the hands of defendants, alongwith an application under Section 5 of the Limitation Act, seeking condonation of delay of 1220 days in filing the instant appeal.
Leaned counsel for the appellant submits that the appellant was a bonafide purchaser. He purchased the suit property during the pendency of the suit filed by the plaintiffs-respondents. He further submits that plaintiffs have failed to prove their case. There was no cogent and convincing evidence available on record which could be said to be sufficient to decree the suit of the plaintiffs. The appellant had no notice of the agreement to sell between the plaintiffs and defendant No.1-vendor of the appellant. After due verification by the appellant, his vendor was found true owner of the suit property. He concluded by submitting that since both the learned courts below misdirected themselves, while not appreciating the above-said relevant aspects of the matter, the impugned judgments and decrees were not sustainable in law. On the delay, he submits that since during the pendency of this litigation, appellant was convicted in a criminal case and was inside the jail, the delay, although inordinately long one, yet the same was bonafide and deserves to be condoned. He prays for setting aside the impugned judgments and decrees, by allowing the present appeal.
Having heard the learned counsel for the appellant at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the MUKESH KUMAR SALUJA RSA No.3963 of 2013 12 2014.09.30 12:02 I attest to the accuracy and authenticity of this document considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that vendor of the appellant namely Tarun Bansal-defendant No.1 entered into an agreement to sell dated 10.5.2002 with the plaintiffs, for a sale consideration of `15.50 lacs. This agreement to sell was Ex. P3 on the lower court record. Defendant No.1 never denied the execution of this agreement to sell by him in favour of the plaintiffs nor he ever denied receipt of earnest money of `5 lacs. Another material aspect is also not in dispute that pursuant to the agreement to sell dated 10.5.2002 Ex. P3, plaintiffs were put in possession on some part of the disputed property. As a consequence of the agreement to sell and having been put in possession on some part of the suit property, plaintiffs started paying the installments of the loan amount to the Oriental Bank of Commerce, so as to clear the loan of Bank which was advanced in favour of defendant No.1.
An amount of about `8 lacs had been paid by the plaintiffs towards the loan amount of defendant No.1, by depositing the installments in the bank. Despite having paid most of the amount of sale consideration, initially by way of earnest money followed by loan amount, when defendant No.1 was not putting the plaintiffs in physical possession over the entire suit property, they were left with no other option except to file the present suit for declaration and injunction seeking symbolic possession as well. When the suit was going on between the plaintiffs and defendant No.1, it seems MUKESH KUMAR SALUJA RSA No.3963 of 2013 13 2014.09.30 12:02 I attest to the accuracy and authenticity of this document that both the defendants colluded with each other and they tried to play smart, so as to defeat the genuine claim of the plaintiffs.
Although, the suit property was yet to be got re-deemed from the bank as some of the loan amount was still outstanding against defendant No.1, yet he suffered the sale-deed dated 11.6.2007 in favour of defendant No.2-appellant. Since the suit property was still under mortgage with the bank and the same was not free from all encumbrances. Defendant No.1 was not even competent to suffer the sale-deed in favour of defendant No.2. When the plaintiffs were admittedly put in possession of some portion of the suit property by defendant No.1 and this fact was very well known to the appellant-defendant No.2 as well, appellant cannot claim himself to be a bonafide purchaser. Having said that, this Court feels no hesitation to conclude that both the learned courts below committed no error of law, while passing their impugned judgments and the same deserve to be upheld.
Over all conduct of the parties to the litigation has always been a relevant factor for consideration by the courts. In the present case, as noticed above, both the defendants proceeded on dishonest approach, so as to defeat the genuine and reasonable claim of the plaintiffs. Neither defendant No.1 was competent to suffer the sale-deed in favour of defendant No.2-appellant nor the appellant can be said to be a bonafide purchaser under the peculiar facts and circumstances of the present case. In such a situation, it can be safely concluded that both the learned courts below did not exceed their jurisdiction, while passing their respective impugned judgments and the same deserve to be upheld, for this reason also.
Before arriving at a judicious conclusion, learned Additional District Judge rightly re-appreciated the true facts of the case as well as the evidence available on record, in correct perspective, in paras 10 to 24 of the MUKESH KUMAR SALUJA RSA No.3963 of 2013 14 2014.09.30 12:02 I attest to the accuracy and authenticity of this document impugned judgment so as to record his own independent findings. The relevant findings recorded by the learned Additional District Judge, in paras 14 to 22 the impugned judgment, read as under:-
"The submissions of defendant No.1 that since the disputed property is situated at Hansi and the parties to the suit are also the residents of Hansi/Hisar, therefore, there was no occasion to execute the alleged agreement to sell Ex. P-3 and other related documents i.e. registered general power of attorney Ex. P-22, registered Will Ex. P-23 and affidavit Ex. P- 24 in favour of the plaintiffs with respect to the disputed property at Delhi is not tenable. Since a perusal of the aforesaid documents clearly shows that defendant No.1 has himself shown him to be the resident of Delhi and he thus cannot take such a plea. Even the plea of defendant No.1 that the disputed property is a HUF property is not tenable because in all the above mentioned documents, the defendant No.1 has time and again mentioned that the disputed property is not a HUF property and as such, the defendant No.1 is now estopped from raising such a pleas at a later stage. Even the defendant No.1 did not prefer to reply the legal notice Ex.P-25 so got issued by the plaintiffs through their counsel which was duly received by the defendant No.1 vide acknowledgment Ex.P-27, which means that he admitted that contents of the said legal notice. The defendant No.1 has also admitted the fact that he gave part possession of the disputed property to the father of the plaintiffs namely Chander Bhan as of licensee but in the MUKESH KUMAR SALUJA RSA No.3963 of 2013 15 2014.09.30 12:02 I attest to the accuracy and authenticity of this document absence of any written statement, the said plea of the defendant No.1 is not tenable as when on one side the defendant is executing several documents in support of the fact that he has agreed to sell away the disputed property to the plaintiffs then there could be not hitch for defendant No.1 for getting executed one another document whereby ~ the plea of the defendant No.1 stood substantiated that the possession of the part of the disputed property was given to the father of the plaintiffs as of licensee and not in part performance of the agreement to sell Ex. P-3. Though the defendant No. 1 is claiming the market value of the disputed property to be more than Rs.50 lacs but at the same time he has sold away the same in favour of defendant No.1 at a lessor price then what he claimed and the said fact itself contradicts the plea of the defendant No.1. Even real brother and sister-in-law of the defendant No.1, by way of registered sale deed dated 12.07.2004, so proved on the file as Ex.P-38, sold away their land measuring 1 kanal 11 marlas for Rs.1.26 lacs and one another relative of the defendant No.1 namely Balwant Singh by way of registered sale deed dated 20.07.2004, so proved on the file as Ex.P-39, sold away land measuring 1 kanal 5 marlas for an amount of Rs. four lacs and which both lands are situated in the Hansi town and in these circumstances the defendant No.1 appears to have rightly entered into an agreement to sale of the disputed property measuring 1 kana1 14 mar1as with the plaintiffs on dated 10.05.2002 for the sale consideration of Rs.15,50,000/- which MUKESH KUMAR SALUJA RSA No.3963 of 2013 16 2014.09.30 12:02 I attest to the accuracy and authenticity of this document property is also situated at Hansi town and merely due to the reason that the prices of land have escalated during the pendency of the suit is no ground to decline specific performance of an agreement of sale in favour of the plaintiffs. Reliance in I this regard has been placed upon case titled as S.V.R. Mudallar (dead) in LRs and others Vs. Mrs. Rajabu E. Buhari (dead) by LRs and others AIR 1995 (SC) 1607.
In the present case, the defendant No.1 at the time of admission and denial of the documents, has very clearly admitted his signatures over the agreement to sell Ex.P-3 as well as related documents and as per settled law once the signatures are accepted the onus to prove that the agreement to sale was got executed from him by deception or fraud shifts on the defendant No.1. Once the agreement to sell in proved ordinarily it is followed by a decree for specific performance unless it is shown that the case falls within the explanation proved under Section 10 of the specific Relief Act. In this regard reliance has been placed upon case titled as Swaran Singh Vs. Sawaran Kaur and others AIR 2004 Punjab and Haryana 242.
Though the defendant No.1 has taken the plea that due to the reason of undue influence, cheating and conspiracy etc. committed by the father of the plaintiffs, the defendant executed the agreement to sell Ex.P-3 and the related documents with respect to the disputed property in favour of the plaintiffs but at the same time the defendant No.1 has miserably failed to MUKESH KUMAR SALUJA RSA No.3963 of 2013 17 2014.09.30 12:02 I attest to the accuracy and authenticity of this document prove said plea of cheating, undue influence etc. on the file. He has even failed to disclose those particulars of cheating etc. as required under the Law. In this regard reliance has been placed upon case titled as Smt. Sukhdei (dead) by LRs Vs. Bairo (dead) 1999 (2) Latest Judicial. Reports 332 and Union of India Vs. M/s Chaturbhai M. Patel and Company 1976 Current Law Journal (Civil.) 166.
Though the defendant No.1 has allegedly got cancelled the said general power of attorney Ex.P-2 and registered Will Ex.P-3 later on, but their execution earlier in favour of the plaintiffs on 10.05.2002 is an important piece of evidence whereby supporting the contention that the defendant No.1 in fact intended to sell away the disputed property to the plaintiffs.
When on one hand the plaintiffs as of part performance of agreement had regularly been making payment of money to the defendant No.1 and have ultimately helped him in getting redeemed the disputed property from the Oriental Bank of Commerce, Hansi, then in these circumstances there is no occasion that specific performance of the agreement to sell Ex.P-3 should be refused to them. Since the plaintiffs have able to prove on the file due execution of the agreement to sell Ex.P- 3 and from the surrounding circumstances it can be gathered that the defendant No.1 intended to sell away the disputed property to the plaintiffs then as per settled law the specific performance of agreement of sale Ex.P-3 should be granted in MUKESH KUMAR SALUJA RSA No.3963 of 2013 18 2014.09.30 12:02 I attest to the accuracy and authenticity of this document favour of the plaintiffs. Reliance has been placed upon case titled as Gurdial Singh and others Vs. Darshan Singh and another 1996 PLR 102.
Even the plea of the defendant No.1 that the disputed property is a HUF property is not substantiated on his part and when on one side the defendant No.1 is taking plea of disputed property to be a HUF against the plaintiffs but at the same time he is selling away the same to the defendant No.2 without obtaining any requisite permission from the Court of Law. The conduct of the defendant No.1 does not inspire any confidence. If the documents so executed by him in favour of the plaintiffs were an act of undue influence, cheating etc. and were going to be misutilized by the plaintiffs, the defendant No.1 could have filed a criminal complaint or he could have lodged a report in this behalf in the concerned police station. Since the defendant No.1 has represented in the agreement to sell Ex. P3 himself to be the sole owner of the disputed property, therefore, he can not be permitted to dispute made by him and the said agreement is very much binding on the defendant No.1 and therefore, the decree for specific performance cannot be permitted to be avoided by the defendant No.1 for the reason that the disputed property is HUF property and the documents Ex.D-4 to Ex.D- 15 so proved on the file on behalf of defendant No.1 are of little relevancy.
The plaintiffs have also proved on the file the affidavit and defendant No.1 dated 10.05.2002 as Ex.P-24 whereby he MUKESH KUMAR SALUJA RSA No.3963 of 2013 19 2014.09.30 12:02 I attest to the accuracy and authenticity of this document has confirmed that he has sold the disputed property to the plaintiffs and acknowledged receipt of the consideration in respect of the disputed property. The defendant No.1 has also confirmed the execution of agreement to sell Ex.P-3 from other documents and the payment of earnest money as well as the other installments is also established on the file which have also been duly acknowledged by the defendant No.1. It is well settled that the relief of Specific Performance has to be premised on equitable principles. Wide discretion is conferred on the Court to grant or decline a decree for specific performance. The Specific Relief Act mandates that it would not be necessary for a Court to decree specific performance merely because it is lawful to do so. Consideration of equity, good conscience and fairness form the very foundation for grant of the relief of specific performance and the discretion is to be exercised in consonance with the well settled principles. Equity must give relief where equity so demands.
In view of my above discussion, the facts the circumstances of the case as well as law laid down in this regard, it is held that the defendant No.1 on 10.05.2002, entered into an agreement of sale of the disputed property with the plaintiffs for a sale consideration of Rs.15,50,000/- and received a total sum of Rs.1494376/- from the plaintiffs in lieu thereof Now as far as the readiness and willingness of the plaintiffs is concerned, the plaintiffs have, by setting issued a MUKESH KUMAR SALUJA RSA No.3963 of 2013 20 2014.09.30 12:02 I attest to the accuracy and authenticity of this document legal notice Ex.P-25, proved their readiness and willingness to perform their part of contract. The plaintiffs have also asserted the said fact in their plaint while filing the present suit against the defendant No.1 and the plaintiff No.2 again deposed the said fact while he stopped into witness box as PW1. Reliance in this regard has been placed upon case titled as Syed Dastagir Vs. T.R.Gopalkrishna Setty 1999-6 SCC-337.
During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its jurisdiction under Section 100 CPC, as held by the Hon'ble Supreme Court in Naryanan Rajendran and another Vs. Lekshmy Sarojini and others, 2009 (2) RCR (civil) 286. Thus, the impugned judgments and decrees passed by the learned courts below deserve to be upheld, for this reason as well.
So far as the delay of 1220 days in filing the appeal is concerned, appellant was in custody since 15.9.2009, whereas the impugned judgment came to be passed by the learned first appellate court on 27.2.2010. However, the applicant-appellant has no where stated that except himself, there was no other family member available, who could have pursued this litigation on his behalf. A close perusal of the averments taken in the application would show that except an attempt to put up a made MUKESH KUMAR SALUJA RSA No.3963 of 2013 21 2014.09.30 12:02 I attest to the accuracy and authenticity of this document up story, the delay of 1220 days has not been sufficiently explained. In this view of the matter, unexplained long delay of 1220 days does not deserve to be condoned.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out. Consequently, the impugned judgments and decrees passed by the learned courts below are upheld.
Resultantly, the instant appeal as well as application for condonation of delay in filing the appeal stand dismissed. Pending applications also stand disposed of. No costs.
22.09.2014 (RAMESHWAR SINGH MALIK) mks JUDGE