Allahabad High Court
Pradeep Kumar Verma And Another vs Anand on 18 September, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- FIRST APPEAL No. - 881 of 2017 Appellant :- Pradeep Kumar Verma And Another Respondent :- Anand Counsel for Appellant :- Rakesh Kumar Mishra,Ashok Kumar Singh Counsel for Respondent :- Anubhav Shukla,B.D.Sharma,Jayant Prakash Singh,Vindesh Kumar,Vineet Mishra Hon'ble Vivek Agarwal,J.
Sri Rakesh Kumar Mishra, learned counsel for the appellant.
None for the respondent.
Judgement delivered.
Appeal is dismissed.
Order Date :- 18.9.2020 Ashutosh Court No. - 36 Case :- FIRST APPEAL No. - 881 of 2017 Appellant :- Pradeep Kumar Verma And Another Respondent :- Anand Counsel for Appellant :- Rakesh Kumar Mishra,Ashok Kumar Singh Counsel for Respondent :- Anubhav Shukla,B.D.Sharma,Jayant Prakash Singh,Vindesh Kumar,Vineet Mishra Hon'ble Vivek Agarwal,J.
1. Heard Sri Ashok Kumar Singh, learned counsel for the appellants and Sri Mohan Yadav, learned counsel for the respondent.
2. This first appeal has been filed by the defendants being aggrieved by judgment and decree dated 17.10.2017 passed by learned Additional Civil Judge (Sr. Division), Court no.2, Bareilly in original suit no.552 of 2012 (Anand Vs. Pradeep Kumar Verma and others) whereby, the suit filed by the plaintiff Anand for declaring the agreement to sale as null and void and granting permanent injunction has been dismissed so also the counter claim of the defendants for the specific performance of the agreement to sale has been dismissed and plaintiff has been directed to return the earnest money of Rs.4 lakhs received by him from the defendants along with 6% interest within three months of the judgment and decree.
3. Plaintiff had filed a suit to the effect that property in dispute is a house situated at Jagrati Nagar Kargaina, Tehsil, District-Bareilly in which he is staying with his mother and sister and claimed himself to be owner and possessor. He admitted that vide sale deed dated 05.08.2008, said house was purchased from the amounts received by him towards payment of gratuity, provident fund and insurance of his father. Said property is three storeyed. On the ground floor, there are four shops, three bedroom, lobby, two latrine bathrooms and one kitchen. On the first floor, there are five bedrooms, two lobbies, two kitchens, three latrine and bathrooms.
4. Similarly, on the second floor there is one bedroom, one baramada and one latrine bathroom thus total area of the said property is 160 square yards.
5. Plaintiff has another property close to the disputed property. Defendant nos.1 and 2 had some acquaintance with the family of the plaintiff and, therefore, they approached plaintiff's mother and tried to pursuade her to sale property, which is subject matter of this appeal.
6. Plaintiff's mother agreed to transfer the said property except the four shops on the ground floor and demanded a consideration of Rs.50 lakhs which was ultimately settled at Rs.47 lakhs. Plaintiff was neither a party to the transaction nor he participated in the negotiation because he was against such sale but could not oppose his mother openly and, therefore, after taking Rs.4 lakhs as advance, agreement to sale was executed and it was decided that remaining sale consideration will be payable within 11 months of the agreement. On 17.02.2012, agreement was executed for a total consideration of Rs.44 lakhs and no mention was made in regard to the four shops. After being satisfied of the terms and conditions of the agreement and under the persuasion of his mother plaintiff had signed the agreement so also the defendant nos.1 and 2. It is submitted that plaintiff and his mother were made to sign or put their thumb impression on several stamp papers. On asking defendants persuaded the plaintiff and his mother to the effect that at the time of the registration, many papers will be required and, therefore, their signature/thumb impression will be required. Since, plaintiff had already read the copy of document given to him therefore being satisfied of such explanation, he had put his signatures without reading original document, bona fidely, treating it to be copy of the original given to him.
7. Plaintiff's case is that since he was supplied one copy of the agreement, when document was presented before the sub-registrar for registration, he did not read and thought it to be typed copy of the same agreement as was in his possession and accepted its execution. He was not knowing that in the document which was presented before the sub-registrar valuation of the property was different, then the one mentioned in the copy which was given to him.
8. As per the plaintiff on 08.05.2012, they were in requirement of some money for domestic purposes, therefore, they had approached the defendant nos.1 and 2 asking them for an advance of Rs.50,000/- which defendant no.1 agreed to pay but informed the plaintiffs that actual valuation of the property is Rs.30 lakhs and, therefore, after payment of Rs.50,000/- only a sum of Rs.25,50,000/- shall be the remaining consideration whereas, according to the plaintiff and his mother total sale consideration was Rs.44 lakhs and, therefore, even after accepting Rs.50,000/-. They were entitled to receive remaining sale consideration of Rs.39,50,000/-.
9. During arguments only, plaintiff saw copy of another set of document, as was registered and was in possession of the defendant nos.1 and 2, when for the first time, plaintiff came to know that a fraud was played on him by the defendant nos.1 and 2 in collusion with defendant no.3 and two different set of documents were prepared.
10. Defendants averred that if plaintiff wants Rs.44 lakhs, then he will have to transfer four shops also and if he is not willing to transfer four shops, then he is entitled to get only a sum of Rs.30 lakhs. After the said incident, plaintiff had filed a complaint with the police when police had called defendant nos.1 and 2 and tried to mediate in the matter. Thereafter, on 25.06.2012, plaintiff met the defendants and informed them not to take any action on the basis of the agreement terming it to be null and void but defendants refused to honour such request, then plaintiff filed a suit for declaration and mandatory injunction against the defendants.
11. During pendency of the suit new paragraphs 14(a) and 14(b) were added to the plaint to the effect that during the pendency of the suit defendant approached the plaintiff with a proposal that if he is agreeable to accept the sale consideration at Rs.30 lakhs, then he is willing to pay such sale consideration at once in cash. As plaintiff was in need of money and wanted to avoid litigation and maintain healthy relationship, he agreed to such proposal and had filed a compromise document 70(ka) dated 20.10.2015 in pursuance of which plaintiff had agreed to execute a sale deed in favour of the defendant on 30.10.2015. Plaintiff further submitted that defendant did not allow him to read the sale deed and forcefully obtained his signatures.
12. As plaintiff was in need of money, he had put his signatures on the proforma of sale deed. When plaintiff demanded remaining sale consideration, then defendant offered a banker's cheques and two post dated cheques as a result of which, sale deed could not be registered and the compromise agreement which was executed between the parties failed. Thus, it is clear that since defendant was not having arrangement to pay remaining sale consideration when parties were to approach the Sub-registrar for registration of the sale deed, therefore, sale deed could not be registered as mentioned above. Defendant filed his written statement and along with written statement a counter claim seeking decree of specific performance of the agreement. Defendant denied the plaint contentions and it is submitted that in fact plaintiff had demanded Rs.35 lakhs and at last agreement was executed for a sum of Rs.30 lakhs on which, plaintiff had signed independently in the presence of his mother Smt. Sunita Devi. It is submitted that sale consideration was Rs.30 lakhs and not 40 lakhs and as per the terms and conditions of the agreement, sale deed was to be executed within a period of 11 months from the date of agreement i.e.17.02.2011. It is submitted that after accepting earnest money of Rs.4 lakhs in cash on 17.02.2012, plaintiff had visited the office of the Registrar along with his mother and another person Ishwari Yadav, who are witness to the event.
13. In the office of the Registrar, plaintiff had chosen document writer-Smt. Meena Srivastava for execution of the document and with the consent and in the knowledge of the plaintiff, sale consideration was recorded at Rs.30 lakhs with stipulation that Rs.4 lakhs was already paid as earnest money and sale deed will be executed within a period of 11 months from the date of agreement. This agreement was witnessed by Ishwari Yadav and mother of the plaintiff namely, Smt. Sunita Devi.
14. Prior to signing of the agreement to sale, plaintiff and her mother read over the agreement and plaintiff had read it himself. It is also submitted that stamp papers were 12 in number on which, plaintiff had put his signatures and on the same day, 12 pages of a photo copy were signed. Defendant denied execution of any document as was filed by the plaintiff as document no.7(ga). Defendant on the contrary pleaded that plaintiff had approached him in the evening of execution to the sale with two stamp papers for Rs.20 each, and informed the defendant that he should sign and put his thumb impression on the stamp papers as they have to account for the earnest money received by them in cash as per the instructions of their counsel, when defendant had bona fidely signed on plain stamp papers on which, plaintiff recorded sale consideration of Rs.44 lakhs which is a blatant misuse of bona fide act on the part of the defendant. It is also submitted that defendant was always ready and willing to execute the sale deed. He had requested the plaintiff in August, 2012 to execute the sale deed, but plaintiff did not pay any attention and kept postponing the execution of the sale deed, when defendant had sent a notice on 07.09.2012 through his counsel fixing 18.09.2012 as a date for appearance before the sub-registrar and for execution of the sale deed. Defendant remained present in the office of the sub-registrar but plaintiff despite receiving the notice did not appear in the office of the registrar. Thereafter, notices were sent on 19.09.2012, 05.10.2012, 01.10.2012 and 16.10.2012 but defendant did not appear in the office of the sub-registrar.
15. On 22.10.2012, plaintiff approached defendants at their residence and ensured them to execute the sale deed within a short time. On 29.10.2012, defendant approached plaintiff at his residence at about 11:00 a.m. requesting him to fix the date for execution of the sale deed. When, plaintiff and her mother started abusing the defendants, then defendant escaped and had lodged a report in the police station on 01.11.2012.
16. That defendants were hopeful that police will help them in getting the sale deed executed but nothing of the sought was done. When, they contacted their counsel on 13.01.2013, he sought time to study the papers and called them on 15.01.2013. On 15.01.2013, Munshi of the learned counsel, informed the defendant about the pendency of the suit from which this first appeal originates. Thereafter, defendants filed cross objection seeking specific performance of the agreement dated 17.02.2012.
17. Defendant too amended the written statement and had added para no.33-A, 33-F consequent to amendment in the plaint as a consequence on 20.10.2015, a compromise was entered into. It is submitted that plaintiff received remaining sale consideration vide cheque no.296887 dated 07.09.2016 for a sum of Rs.2,25,000/- another cheque no.96888 dated 26.11.2015 for a sum of Rs.10 lakhs and a banker cheque no.19281 dated 06.11.2015 for a sum of Rs.13,75,000/- but despite receiving total sale consideration, plaintiff did not execute the sale deed whereas, defendant had paid a sum of Rs.5,06,000/- in the form of stamp duty.
18. Plaintiff filed reply to the counter claim stating that defendant was already having knowledge of the original no.552 of 2012 but he did not appear in the suit. There was no requirement for his appearance before the sub-registrar, as plaintiff had already filed a suit for cancellation of the agreement in the year 2012 itself.
19. On the basis of such pleadings, trial court framed as many as 15 issues namely;
(1) Whether on the basis of the plaint averments, agreement dated 17.02.2012 is based on fraud and misrepresentation and, therefore, for this reason is liable to be cancelled?
(2) Whether agreement of the disputed property between the parties was for a sum of Rs.44 lakhs ? If yes, its impact.
(3) Whether the agreement in question was made only for residential property or four shops were included in it? If yes, its impact.
(4) Whether plaintiff has under valued the suit ?
(5) Whether plaintiff has paid insufficient court fee?
(6) Plaintiff is entitled to which relief ?
(7) Whether at the time of writing of the disputed sale agreement dated 17.02.2012, the cost of the disputed house was fixed at Rs.30 lakhs? if yes then it affects.
(8) Whether defendant was always ready and willing to get the sale deed executed and whether he was having necessary remainder amount for execution of the sale deed?if yes then its affect.
(9) Whether the agreement executed in favour of the defendants on 17.02.2012 is legally correct and whether the defendant is entitled to get the sale deed executed on the basis of such agreement ?
(10) Whether defendant has under valued his counter claim?
(11) Whether defendant has paid insufficient court fee on the counter claim?
(12) Whether the defendant is entitled to any relief?
(13) Whether the plaintiff as per the compromise document no.70(ka) has received the remaining sale consideration or not ?
(14) Whether an unregistered agreement was executed between the plaintiff and the defendant on 17.02.2012 mentioning the valuation of the property as Rs.44 lakhs and another registered agreement showing the valuation of the property as Rs.30 lakhs? if yes then its affect.
(15) Whether the proforma sale deed dated 06.11.2015 is validly executed document after receiving complete sale consideration ? If yes, then it effect, whether its liable to be sent to the sub-registrar for its registration ?
20. Plaintiff examined himself and his mother as P.W.-1 and P.W.-2 respectively. Plaintiff had filed list of documents 6(ga) including photo copy of the agreement dated 17.02.2012, document no.7(ga)/1 to 7(ga)/2 and certified copy of agreement dated 17.02.2012, document no.8(ga)/2 to 8(ga)/13.
21. Defendant examined himself as D.W.-1, Smt. Meena Saxena as D.W.-2 and Pradeep Das as D.W.-3. In the form of the documentary evidence, defendant had filed list of document 29(ga), later on retrieved by the defendant and had filed photo copies of document 30-Ka to 30-Ka/12. Notice dated 07.09.2012 as document No.31-Ga/1-2, Registry Paper No.32-Ga, attendance application dated 18.09.2012, document No.33-Ga, attendance related receipt No.34-Ga, attendance related application No.35-Ga/1-2, notice document No.36-Ga/1-2, Receipt No.37-Ga, attendance application No.38-Ga/1-2, attendance receipt paper No.39-Ga, attendance application paper No.40-Ga/1-3, copy of notice No.41-Ga/1-2, receipt paper No.42-Ga, attendance application paper No.43-Ga/1-2, receipt paper No.42-Ga, attendance application paper No.43-Ga/1-2, attendance receipt paper No.44-Ga, attendance application paper No.45-Ga/1-3, photo copy of the FIR paper No.46-Ga, original notice paper No.88-Ga from the list of 87-Ga, envelop paper No.89-Ga/1, notice paper No.89-Ga/2-3, notice reply paper No.91-Ga, copy of the order of Deputy Registrar dated 17.03.2016 paper No.92-Ga/1-3, receipt paper No.93-Ga, 94-Ga/1-2, agreement dated 17.02.2012 paper No.95-Ga/2-11 from the list of 95-Ga, original proforma sale deed dated 30.10.2015 paper No.95-Ga/12-41, certified copy of the order dated 07.11.2015 paper No.95-Ga/42-43, certified copy of the written statement paper No.95-Ga/44-47, photo copy of the cheque for Rs.10 lakhs paper No.95-Ga/48, photo copy of the cheque for Rs.2,25,000/- paper No.95-Ga/49, photo copy of the bankers cheque, paper No.95-Ga/50, copy of the order of District Registrar Bareilly, paper No.95-Ga/51-54 have been annexed.
22. Learned trial court discussed issue nos.1, 2, 3, 7 and 9 together reached to a conclusion on the basis of the appreciation of evidence that plaintiff's contention, agreement dated 17.02.2012 showing sale consideration of Rs.30 lakhs was not executed by him and defendant had got such agreement executed in place of agreement showing consideration of Rs.44 lakhs was not found to be correct.
23. Learned trial court has not accepted the fact that agreement was actually executed for Rs.44 lakhs and not for Rs.30 lakhs. However, it also came to a conclusion that plaintiff failed to prove that agreement dated 17.02.2012 was executed by exercising fraud and also failed to prove that four shops were not included in the agreement and accordingly issue nos.1 and 2 were decided in negative against the plaintiff and issue no.3 was decided in affirmative against the plaintiff. Similarly issue no.7 and 9 were also decided in affirmative against the plaintiff.
24. Issue no.14 was decided to the effect that since the agreement for Rs.44 lakhs is an unregistered document, whereas agreement for Rs.30 lakhs is a registered agreement, no advantage can be extended in favour of the plaintiff on the basis of the unregistered agreement as it is not admissible in evidence.
25. While deciding issue nos.8, 13 and 15 in regard to the ''readiness' and ''willingness', of the defendant and as to whether plaintiff had received complete sale consideration as per the deed of compromise contained in document No.70(ka), and as to whether document dated 06.11.2015 was properly executed after receiving complete sale consideration, and whether such document is liable to be sent to the sub-registrar for registration, learned trial court came to a conclusion that when defendant has himself mentioned that in lieu of remaining sale consideration, he had issued a bankers cheque dated 06.11.2015 and two post dated cheques dated 26.11.2015 and 07.09.2016, then it is apparent that defendant was not ready and willing to get the sale deed executed after paying the complete sale consideration. A finding has been recorded that amount of the post dated cheques was never withdrawn from the account of the defendant and further the bankers cheque was never presented for encashment and since the validity of the bankers cheque and post dated cheques expired, defendant was though willing to get the agreement dated 17.02.2012 executed, but they were not fully prepared. Therefore, document dated 06.11.2015 in the absence of sale consideration is a null and void document which cannot be sent for registration.
26. Learned trial court also decided that issue nos.4, 5, 10 and 11 in regard to valuation and payment of court fee were already decided by it vide order dated 14.01.2015 which will be part of the judgment and decree.
27. While deciding issue nos.6 and 12, learned court found that plaintiff is not entitled to any relief but at the same time, defendant was also not ready and willing to get the sale deed executed and therefore counter claim is also liable to be dismissed.
28. In above terms, the learned trial court directed the plaintiff to refund a sum of Rs.4 lakhs along with 6% interest from the date of the filing of the claim till the date of actual payment which was admittedly received by the plaintiff from the defendant and thus, an equitable relief has been extended and suit was decided.
29. Learned counsel for the appellant submits that learned court below has failed to examine the validity of the compromise and has also overlooked the fact that once a finding was recorded that the agreement was not executed by exercising fraud or coercion, then there was no justification for not decreeing the counterclaim for specific performance.
30. It is submitted by learned counsel for the appellant that as per the provisions contained in Section 62 of the Indian Contract Act, 1872 draft sale deed is to be treated as sale agreement as it extinguishes the old contract and, therefore, the terms and conditions of the compromise agreement accepted by the plaintiff could not have been ignored by the court. Once, plaintiff agreed to accept post dated cheques, then no adverse findings could have been recorded. It is also submitted that if relief in the counter claim for mandatory registration of sale deed written on the basis of the compromise is rejected, then first prayer for specific relief should have been granted.
31. On the contrary, learned counsel for the respondent submits that there could not have been any deferred consideration and plaintiff has specifically pleaded and proved that he had not accepted any post dated cheques. It is submitted that as per section 10 of the Indian Contract Act, 1872 post dated cheques do not reflect ''readiness' and ''willingness' of the defendant.
32. Reliance has been placed on the judgment of Vishwambhar Nath Agarwal Vs. Kishan Chandra as reported in AIR 1998, Alld. 195.
33. It is also submitted that validity of the compromise be also examined in terms of the judgment rendered by Supreme Court in case of Muni Reddy and another Vs. C. Nagaraju and others as reported in Laws (SC) 2018, 944.
34. In terms of the aforesaid discussion, the issues which emerge for decision in the present appeal are three fold namely; impact and affect of the compromise allegedly entered into between the parties on 20.10.2015, and whether ''readiness' and ''willingness' can be inferred from the post dated cheques? What will be the impact of provisions contained in Sections 10, 25 and 62 of the Indian Contract Act, 1872 on the facts and circumstances of the present case?
35. Keeping the history of the case in mind and the findings recorded by the learned trial court to the effect that agreement for a sum of Rs.30 lakhs being a registered agreement needs to be inferred as just and proper agreement. When this finding is read in continuation of the fact that trial court found that plaintiff had failed to prove the agreement allegedly executed for a sum of Rs.44 lakhs to be not admissible in evidence and there is no challenge to such findings by the plaintiff, compromise agreement as contained in document no.70-Ka dated 20.10.2015 attains special significance.
36. For ready reference, recitals of the compromise are being reproduced here-in-under, inasmuch as, interpretation of the language of the compromise deed will form the backbone of the decision which is to be taken in this first appeal, as it is the submission of learned counsel for the appellant, who had filed a counter claim before the trial court that once the plaintiff had agreed to accept the post dated cheques then no adverse findings could have been recorded against the defendant. Thus it is to be seen, whether the compromise deed makes any mention of the intention of the parties to accept post dated cheques.
le>kSrkukek Jheku th 1- oknh ;g Lohdkj djrk gS fd oknh }kjk izfroknhx.k ds i{k esa oknxzLr lEifRr dks csp tkus gsrq fodz; vuqcU/k fnukaafdr 17-02-2012 ¼ftldk iathdj.k dk;kZy; lc&jftLVªkj] cjsyh ds ;gka fnukad 17-02-02012 dks iqLrd&1 [k.M&5171 ds i`"B&121 ls 144 rd] dzekad 2090 ij i{kdkjksa }kjk djk;k x;k½ fu"ikfnr gqvk] ftlds vUrxZr oknh us oknxzLr lEifRr] ftldk fooj.k izfroknhx.k& izfrnkokdrkZx.k us vius izfrnkos esa Hkh fn;k gS] dks izfroknhx.k dks cspuk r; fd;k rFkk ml lEifRr dk dqy fodz; ewY; rhl yk[k :i;s vkilh lgefr ls r; gqvk] tSlk fd mDr fodz; vuqcU/k esa mfYyf[kr gS rFkk mlesa ls pkj yk[k :i;s c;kus esa izfroknhx.k ls oknh us izkIr fd;s vkSj 'ks"k fodz; ewY; NCchl yk[k :i;s oknh dks izfroknhx.k ls mDr fodz; vUkqcU/k ds vuqlkj izfroknhx.k ds i{k esa fodz; i= fu"ikfnr djrs le; izkIr djus gSA 2-- ;g fd oknh izfroknhx.k& izfrnkokdrkZx.k ds i{k esa mijksDr fodz; vuqcU/k fnukafdr 17-02-2012 ds vuqlkj mDr lEifRr dk fodz; i= izfroknhx.k ls 'ks"k fodz; ewY; NCchl yk[k :i;s izkIr djds izfroknhx.k ds i{k esa fu"ikfnr djus dks rS;kj gS vkSj fodz; i= fu"ikfnr djus ds lkFk gh mDr lEifRr dk [kkyh dCtk Hkh izfroknhx.k&izfrnkokdrkZx.k dks nsus dks rS;kj gS] ijUrq ;g dk;Z iw.kZ djus ds fy;s oknh dks ,d ekg ds le; dh vko';drk gSA izfroknhx.k&izfrnkokdrkZx.k oknh ls mijksDrkuqlkj fodz; i= vius i{k esa fu"ikfnr djkus dks rFkk 'ks"k fodz; ewY; NCchl yk[k :i;s oknh dks nsus dks rS;kj gS rFkk oknh dh bPNkuqlkj mDr fodz; i= fu"ikfnr djkus gsrq oknh dks ,d ekg dk le; nsus dks rS;kj gSa izfroknhx.k&izfrnkokdrkZx.k fodz; i= fu"iknu dk leLr LVkEi 'kqYd o vU; O;; Lo;a ogu djsaxsA 3- ;g fd mDr ,d ekg dh vof/k esa oknh izfroknhx.k ds i{k esa mijksDrkuqlkj fodz; i= fu"ikfnr ugha djrk gS rks izfroknhx.k&izfrnkokdrkZx.k dks ;g vf/kdkj gksxk fd os bl le>kSrkukek ds vk/kkj ij ikfjr vkKfIr ds vuqlkj mDr vkKfIr dk fu"iknu ekU; U;k;ky; ds ek/;e ls djk ysa rFkk mDr fLFkfr esa izfroknhx.k&izfrnkokdrkZx.k oknh lsleLr okn O;; rFkk leLr fu"iknu O;; Hkh izkIr djus ds vf/kdkjh gksaxs] ijUrq ;fn oknh izfroknhx.k&izfrnkokdrkZx.k ds i{k esa mijksDr vof/k esa Lo;a fodz; i= fu"ikfnr dj ysrk gS vkSj mDr lEifRr dk [kkyh dCtk izfroknhx.k&izfrnkokdrkZx.k dks ns nsrk gS rc izfroknhx.k&izfrnkokdrkZx.k oknh ls dksbZ okn O;; ysus ds vf/kdkj ugha gksaxsA 4- ;g fd mDr ,d ekg dh vof/k bl okn esa bl le>kSrkukek ds vk/kkj ij ikfjr fu.kZ; o vkKfIr dh frfFk ls izHkkoh ekuh tk;sxhA 5- ;g fd bl le>kSrk ds vuqlkj mijksDr okn o izfrnkok bl le>kSrk dks vkKfIr dk vax cukrs gq;s fu.khZr fd;s tkus ds fy, i{kdkj lger gSA"
37. A reproduction of issue nos.13 and 15 is necessary, inasmuch as, interpretation of the compromise deed dated 20.10.2015 are to be examined as such. Issue nos. 13 and 15 framed by the trial court read as under:-
"(13) Whether the plaintiff as per the compromise document no.70(ka) has received the remaining sale consideration or not?
(15) Whether the proforma sale deed dated 06.11.2015 is validly executed document after receiving complete sale consideration ? If yes, then it effect, whether its liable to be sent to the sub-registrar for its registration?"
38. Section 10 of the Indian Contract Act, 1872 provides that all agreements are contracts, if they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object and are not hereby expressly declared to be void.
39. Similarly, section 25 of the Indian Contract Act, 1872 in sub section (2) provides that it is a promise to compensate, wholly or in part, a person who has voluntarily done something for the promiser, or something which the promiser are legally compellable to do.
40. It is an admitted position that in terms of the provisions contained in Section 62 of the Indian Contract Act, 1872 compromise deed dated 20.10.2015 formed a new contract and terms of such new contract are required to be given effect too.
41. In the light of above legal provisions what is to be appreciated is that whether there was any recital in the compromise deed to the effect that plaintiff is willing to accept deferred to payment. Secondly, whether the compromise was entered into to give effect to the registered agreement to sale dated 17.02.2012 or amounted to novation of the contract.
42. When these two aspects are examined, then it is apparent from the language of clause-2 of the compromise agreement that compromise agreement was executed to give effect to the registered agreement to sale dated 17.02.2012, in which total consideration is mentioned as Rs.30 lakhs. It is also evident from a plain reading of clause-2 of the agreement that the first party to the compromise agreement i.e. the plaintiff agreed to execute the sale deed after receiving remaining sale consideration of Rs.26 lakhs and sought one month's time so to enable him to hand over the vacant peaceful possession of the suit property in favour of the defendant i.e. the counter claimant.
43. None of the recitals of the agreement reveals that without paying the remaining sale consideration of Rs.26 lakhs before the execution of the sale deed counter claimant was entitled to get the sale deed executed through the process of the court. In fact, once a compromise deed was executed then the normal inference which is to be drawn is to the effect that the counter claimant/defendant was ready with the remaining sale consideration to be passed on to the plaintiff so to get the sale deed executed. There is no mention of any post dated cheques in the compromise agreement.
44. Plea of the counter claimant/appellant that if compromise agreement could not be executed then the trial court should have decreed the suit for specific performance. Both these issues namely getting the compromise deed executed or decreeing the counter claim for specific performance hinges around sole issue namely; whether there was ''readiness' and ''willingness' on the part of the counter claimant.
45. As has been discussed above, as there is no challenge to the findings of the trial court in regard to the validity of the registered agreement dated 17.02.2012 and further no challenge to the findings of the trial court that the description of the property as mentioned in the registered agreement to sale includes four shops to which initially plaintiff had resisted and had submitted that they were not the part of the agreement. Also a finding that registered agreement was not executed by exercising either fraud or coercion, when terms of the compromise deed dated 20.10.2015 are read then it is apparent that even in the registered agreement to sale it is mentioned in Clause-1 that total consideration for the property was fixed at Rs.30 lakhs, out of which a sum of Rs.4 lakhs was aceepted as ''Bayana' and after receiving the remaining sale consideration, sale deed will be executed. Thus, when the conditions of agreement to sale are read with that of the compromise agreement, there is no iota of doubt that there was no recital in the agreement or the compromise deed to the effect that plaintiff was given an offer to accept post dated cheques and he accepted receiving post dated cheques in lieu of sale consideration.
46. Thus, when there is no dispute to the fact as has been mentioned by learned trial court that defendant Pradeep Kumar Verma examined himself as D.W.-1 and in his cross-examination admitted that the sale deed for the disputed property was written on 30.10.2015 and was signed between the parties on 06.11.2015, a fact which has been admitted by the plaintiff also, but on account of a dispute arising as to the mode of payment of the sale consideration, said deed could not be registered. Plaintiff further averred that defendant was not having sufficient arrangement to pay the funds, as a result of which, on 30.10.2015, even complete set of stamp duty payable on the transaction could not be purchased. Plaintiff further averred that since he was in need of money he had signed the document but when they were to approach the sub-registrar for registration of the sale deed then plaintiff demanded remaining sale consideration on which defendant offered payment of remaining sale consideration through one banker's cheque and two post dated cheques as defendant was not having arrangement to make payment of remaining sale consideration, therefore, the sale deed could not be registered.
47. Learned trial court has rightly discussed the law laid down in case of Vishwambhar Nath Agarwal Vs. Kishan Chandra as reported in AIR 1998, Alld. 195 wherein, distinction has been drawn between ''readiness' and ''willingness'. It has been held that readiness means financial condition whereas willingness means conduct of the plaintiff that he wants to get the specific performance of the contract carried out in his favour. It has been held that willingness is a mental process whereas readiness is a actual preparedness. In this background, it has been observed by the learned trial court that the two post dated cheques bearing no.296887 dated 07.09.2016 for Rs.2,25,000/-(two lakhs and twenty five thousand only) another Cheque No.9688 dated 26.11.2015 for a sum of Rs.10 lakhs and a bankers cheque dated 06.11.2015 for 13,75,000/- (thirteen lakhs and seventy five thousand only) were presented but plaintiff did not accept the post dated cheques and the bankers cheque. It is apparent from the discussion made by the trial court that there are ambiguities in the document prepared in the form of proforma sale deed, inasmuch as, some stamps were purchased on 29.10.2015, some on 30.10.2015 and others on 06.11.2015. It has further noted, that the page on which date of execution is mentioned as 30.10.2015, on that very page, there is description of bankers cheque for a sum of Rs.13,75,000/- bearing date 06.11.2015. Thus, trial court observed that bankers cheque dated 06.11.2015 could not have been mentioned on a document prepared on 30.10.2015.
48. Under such facts and circumstances, the learned trial court recorded a finding that the onus was on the counter-claimant/defendant to bring on record as to on which date plaintiff had accepted the bankers cheque and the post dated cheque but defendant failed to discharge this burden.
49. It has also recorded a finding that looking to the fact that one of the cheques bear date of about 10 months after the execution of the so called sale deed, defendant was not having sufficient money to pay the sale consideration, a finding which could not be rebutted by the appellant/defendant through any material available on record including the evidence led by the plaintiff and the defendant.
50. In view of such facts, the finding of the trial court that there was lack of readiness on the part of the defendant to get the sale deed executed in terms of the registered agreement dated 17.02.2012 and the compromise deed dated 20.10.2015 and holding such deed dated 06.11.2015 to be a void document in absence of payment of sale consideration, coupled with a finding that defendant-appellant is not entitled to get either the sale deed dated 06.11.2015 registered or get the decree for specific performance of the agreement dated 17.02.2012 cannot be faulted with.
51. In fact as an equitable relief, learned trial court has directed the plaintiff to refund earnest money of Rs.4 lakhs along with interest and that relief being an equitable relief, permissible under the provisions of the Specific Relief Act, cannot be faulted with.
52. In view of the aforesaid analysis of the facts, issues and the evidence, since, appellant has failed to prove his readiness and willingness and has also failed to show through any documentary or other evidence that the plaintiff was willing to accept the post dated cheques even at the time of the execution of the compromise deed, the judgment and decree passed by the trial court cannot be faulted with and deserves to be upheld.
53. Accordingly, judgement and decree dated 17.10.2017 passed in original suit no.552 of 2012 by the learned Additional Civil Judge (Sr. Division), Court no.2, Bareilly is upheld and the appeal being devoid of merit deserves to be dismissed and is dismissed.
54. Decree be drawn in above terms.
Order Date :- 18.9.2020 Ashutosh