Punjab-Haryana High Court
Sucha Singh vs Nand Lal on 27 October, 2014
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A. No.2364 of 2012
Decided on : 27.10.2014
Sucha Singh . . . Appellant
Versus
Nand Lal . . . Respondent
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. G.S. Nagra, Advocate
for the appellant.
Mr. Jagvinder Singh Santowal, Advocate
for the respondent.
*****
RAJ MOHAN SINGH, J. (Oral)
This is defendants' second appeal arising out of concurrent findings of the facts recorded by both the courts while decreeing the suit of the plaintiff.
2. Plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 28.12.2006 in respect of suit land. The agreement was executed on 28.12.2006 @ ` 8,00,000 per acre. An amount of ` 1,00,000/- is shown to have been received as earnest money and target date for registration of the sale deed was fixed as 08.05.2007. It has also been alleged that an amount of ` 70,000/- was paid on 28.12.2006 and an SACHIN SHARMA 2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh 2 R.S.A. No.2364 of 2012 endorsement to this effect was made at the back of the agreement. Similarly, an amount of ` 50,000/- was also paid on 18.03.2007 and endorsement to this effect was also made on the first page of the agreement. It is further pleaded that on 27.04.2007, the defendant demanded further amount of ` 2,00,000/- which was paid and defendant put his signatures on the back side of the agreement. In this way, total amount of ` 4,20,000/- has been paid towards the earnest money. On 08.05.2007 plaintiff remained present in the office of Sub Registrar, Nurpur Bedi for registration of the sale deed along with balance sale consideration, but defendant did not turn up. The plaintiff claimed himself to be ready and willing to perform his part of the agreement, but the defendant failed to perform his part of obligation. A legal notice was issued to the defendant on 01.06.2007 and reply to this legal notice was given on 12.06.2007 in which execution of agreement to sell is admitted, but the amount received is claimed to be only ` 2,20,000/-. Receiving of amount of ` 2,00,000/- on 27.04.2007 has been denied. With this background, the present suit came to be filed.
3. On the basis of pleadings of the parties, following issues were framed:-
(1) Whether the plaintiff is entitled for possession by way of specific performance of agreement to sell dated 28.12.2006? OPP.
(2) Whether the plaintiff is entitled to alternate relief of recovery as prayed for? OPP.
(3) Whether the suit is neither maintainable nor competent in the eyes of law? OPD.
SACHIN SHARMA2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh 3 R.S.A. No.2364 of 2012 (4) Whether no cause of action accrued in favour of the plaintiff for filing the present suit? OPD.
(5) Whether the suit is barred by Law of Limitation? OPP. (6) Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD.
(7) Relief.
4. After leading evidence, the learned trial court ultimately held that entire payment is proved to have been made in favour of the defendant. The endorsement of payment of ` 2,00,000/- on 27.04.2007 Ex.P1/B also bears the signatures of defendant as well as witnesses Roop Singh and Mohan Singh. The aforesaid witnesses have also specifically deposed that the amount of ` 2,00,000/- was duly paid by the plaintiff to the defendant. In the written statement, filed by the defendant, the agreement to sell has been admitted, but the factum of receiving an amount of ` 2,00,000/- on 27.04.2007 is denied. Even according to learned trial court, an amount of ` 2,00,000/- is also proved to have been paid to the defendant on the basis of evidence. After having issued legal notice dated 01.06.2007 to which reply was given by the defendant on 12.07.2007, the suit itself came to be filed on 15.06.2007. Promptly filing of the suit itself shows the readiness and willingness of the plaintiff to perform his part of obligation. The plaintiff was duly presented himself before the Sub Registrar and got his presence marked in token of confirmation in the context of his being ready and willing to perform his part of contract. The prompt filing of the suit in the light of 2009 (4) Civil Court Cases SACHIN SHARMA 2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh 4 R.S.A. No.2364 of 2012 429, titled 'Ram Singh versus Satbir and other' is to show readiness and willingness of plaintiff to perform his part of contract. Once the execution of agreement to sell is admitted except a rider clause it has also been debated by the court on the basis of evidence. The prompt filing of suit itself is a ground to satisfy the requirement of law under Section 16 (c) of the Specific Relief Act.
5. In order to succeed to suit for specific performance, the plaintiff has to prove that there is a valid agreement of sale which has been entered into between the parties on certain terms and conditions and the defendant has committed breach of contract and the plaintiff is always ready and willing to perform his part of contract. In the present case, all the aforesaid conditions are duly satisfied. It is also a normal rule to allow specific performance when all the aforesaid conditions are satisfied. The only diversion from this rule is when the enforcement of agreement gives undue benefit to one of the party and in case of hardship in favour of the defendant that has to be pleaded and proved on record. The learned trial court decreed the suit for specific performance of agreement to sell dated 28.12.2006 with a direction to the defendant to execute the sale deed in favour of the plaintiff within a period of two months after receiving the balance sale consideration, failing which the plaintiff was held entitled to get sale deed executed and to take possession thereof with the process of the court.
6. Feeling aggrieved with the aforesaid judgment and decree, the defendant remained unsuccessful in appeal. The SACHIN SHARMA 2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh 5 R.S.A. No.2364 of 2012 learned lower appellate court has also endorsed the same findings of fact based on evidence on record. When the agreement to sell as a whole has been admitted by the defendant, the question of denying the receipt of ` 2,00,000/- on the writing dated 27.04.2007 does not arise and in case of denial it was legally incumbent on defendant to get examined some handwriting and fingerprint expert to prove his version. The onus was heavily lied upon the defendant to prove the alleged forged and fabricated signatures. In case, titled 'Durlabh Singh versus Nahar Singh & O` ' 1991 Civil Court Cases 693 (P&H), it is held that once the signatures are accepted, the onus to prove that agreement of sale was got executed by deception and fraud shifts upon defendant. It is settled principle of law that onus to prove a relevant fact is always on the person who asserts in affirmative. Fraud has to be pleaded and proved on record. The particulars of fraud are required to be pleaded and the same are required to be proved by way of evidence. In the instant case, there are no particulars of fraud pleaded, rather agreement to sell has been admitted with the aforesaid rider to the extent of ` 2,00,000/- which has also been proved by the attesting witnesses of the agreement to sell. In the absence of material particulars, the only objection of the defendant qua the agreement to sell stood negatived and this plea resulted in upholding the execution of agreement to sell which ultimately resulted in liability of the defendant to execute the sale deed.
7. Along with the appeal Civil Miscellaneous No.5624-C of 2013 has also been moved under Order 41 Rule 27 CPC for SACHIN SHARMA 2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh 6 R.S.A. No.2364 of 2012 producing additional evidence on record which is sought to be adduced in the form of application dated 23.02.2013 and reply dated 13.03.2013 and representation dated 18.04.2013 sent through registered A.D post. These documents are sought to be placed on record in order to show that affidavit dated 08.05.2007 was not attested by the office of Naib Tehsildar, Nurpur Bedi, which shows that plaintiff had produced forged and fabricated affidavit in the court and the defendant had sent the registered A.D. to the Home Secretary to Government of Punjab and other officers stating that criminal action may be taken against the plaintiff. This court has considered the scope of the aforesaid documents to be permitted in additional evidence. None of the aforesaid documents advanced the case of the defendant/appellant in any manner. Once the agreement to sell has been admitted and the case has been proved on the basis of preponderance of evidence and probability in the court of law, then the defendant cannot be allowed to take 'U' turn to say that the agreement to sell is having suffered with vices of fraud. Since no such plea was taken in the written statement, rather agreement to sell was admitted, therefore, after having unsuccessful in two courts, the defendant cannot be permitted to say that the transaction is fraudulent from inception. Therefore, this court does not feel that the application for additional evidence is of any worth in the present controversy.
8. Specific performance is a discretionary relief and the discretion should be based on sound principle of law. The specific performance can be denied in a particular set of circumstances in SACHIN SHARMA 2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh 7 R.S.A. No.2364 of 2012 which there is apparent hardship in favour of the defendant. Hardship has to be pleaded and proved and the court is not obliged to pass a decree merely because it will be lawful to do so. The equitable relief as described in Specific Relief Act, 1963 has to be based on sound principle of discretion. The judgment cited by the learned appellate court 1997 (1) RCR (Civil) 286 (SC) Lourdu Mari David versus Louis Chinnaya Agogiaswamy, does not help the cause of the appellant in the present case. Similarly, the judgment in Tatavarthi Jagannadham versus Akkineni Radhakrishna, 1998 (1) RCR (Civil) 177, cannot render any help to the cause of the appellant inasmuch as that in the instant case, there is no such emerging situation of essence of the contract. Though the suit itself is proved to have been filed promptly after issuance of legal notice to the defendant. Rather the defendant has not come to the court with clean hands. Firstly, on account of the fact that after admission of the agreement to sell, denial to a particular occasion has been made and secondly by way of filing application for additional evidence, the entire agreement to sell was sought to be denied on some afterthought grounds for which separate proceedings could have been initiated by the defendant. If the defendant is able to prove fraud, there is no legal impediment in the way of defendant to assail the action independently in the court of law on the ground that fraud vitiates by all solemn acts. Therefore, the precedent cited by the defendant on the subject matter does not help the cause of the defendant in any manner. SACHIN SHARMA 2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh 8 R.S.A. No.2364 of 2012
9. Having paid thoughtful consideration, this court finds that no question of law worth cognizance by this court is involved in the appeal. The appeal is totally devoid of merits and the same is dismissed.
[ Raj Mohan Singh ] Judge 27.10.2014 sachin SACHIN SHARMA 2014.11.13 20:49 I attest to the accuracy and authenticity of this document Chandigarh