Anil Kumar Paraswani vs Jugesar Patel

Ravindra Kumar Agrawal, J

The instant First Appeal under Section 96 of The Code of Civil Procedure, 1908, has been filed by the appellant/plaintiff against the judgment and decree dated 20.01.2012 (wrongly mentioned 20.01.2011) passed by the Vth Additional District Judge, Bilaspur, in Civil Suit No.2-A/2010 whereby the Civil Suit filed by the plaintiff has been dismissed.

The case of plaintiff before the trial court was that, the defendant entered into an agreement on 02.07.2007 to sale his land bearing Khasra No.762/2, area 1.06 Acre, situated at village Pousra, Tehsil and District Bilaspur @ Rs.70,000/- per acre and out of total sale consideration, Rs.50,000/- was paid as advance amount and remaining sale consideration was to be paid at the time registration of sale deed. The time fixed for registration of sale deed was up to 31.03.2008. On 06.09.2008 another agreement was executed between the parties in which the total sale consideration of the suit land of 1.06 Acre was Rs.2,03,000/- and it was mentioned in the agreement dated 06.09.2008 that out of total sale consideration, Rs.2,00,000/- has already been received by the defendant and remaining amount of Rs.3000/- would be paid at the time of registration of sale deed which was to be executed upto 30.03.2009. Even after lapse of time period fixed in the agreement when the defendant had not executed the sale deed, a legal notice was served upon him on 11.05.2009 and then the present suit for specific performance of the contract was filed on 06.06.2009.

The defendant contested the claim of plaintiff, denied the plaint averment and submitted his written statement with the pleading that he has not executed any agreement to sale his land in favour of plaintiff. The suit land is the sole source of his livelihood and there is no question to sale it. He has not received any amount as advance with respect to sale of his land. The original suit was filed by the plaintiff based on the alleged agreement dated 02.07.2007, however, the plaint averment have been amended and the subsequent agreement dated 06.09.2008 was pleaded in the plaint. It is also pleaded that in the notice dated 11.05.2009 there is no mention about the said agreement dated 06.09.2008 and therefore the alleged agreement dated 06.09.2008 or 02.07.2007 are suspicious documents. It is also pleaded that as per the agreement dated 02.07.2007 and 06.09.2008, total of Rs.2,50,000/- is shown to have been paid to the defendant as an advance amount whereas, total sale consideration was alleged to be fixed as Rs.2,03,000/- and therefore the entire claim of the plaintiff is doubtful and no relief for specific performance of contract can be awarded in favour of plaintiff.

In support of claim, the plaintiff examined himself as PW-1, Ramavtar Chouhan, PW-2 and Ram Prasad Pandey, PW-3 and relied upon the documents Ex.P/1, the agreement dated 02.07.2007, P/2 legal notice dated 11.05.2009, P/3 agreement dated 06.09.2008 and P/4 & P/5 which are Khasra Panchsala and B-1 Kistbandi of the suit land. The defendant have not examined any witness in his defence.

On the basis of pleadings made by the parties, the trial court framed issues and after appreciation of oral as well as documentary evidence led by the parties, dismissed the plaintiff’s suit holding that plaintiff has failed to prove execution of agreement dated 02.07.2007 and 06.09.2008. He also failed to prove that he paid advance amount to the defendant in lieu of the sale agreement. It was also held that plaintiff was not ready and willing to perform his part of the contract and as such not entitled for any relief of specific performance. The judgment and decree dated 20.01.2012 passed by the trial court is under challenge in the present appeal.

Learned counsel for the appellant would submit that judgment and decree passed by the trial court is erroneous on law as well as on the facts. The execution of agreement dated 02.07.2007 and 06.09.2008 has duly been proved by PW-2 & PW-3 also who are witnesses to agreement and payment of advance amount to the defendant. The suit of the plaintiff has been dismissed on the ground that in the notice dated 11.05.2009 there is no mention about the previous agreement and the claim with respect to the subsequent agreement dated 06.09.2008 was incorporated in the pleadings of the plaint by way of amendment and therefore, the claim of the plaintiff is not bonafide. He would further submit that agreement dated 06.09.2008 is a registered agreement duly executed by the parties and its genuineness cannot be doubted. The plaintiff was ready and willing to perform his part of contract. Immediately after the period mentioned in the agreement was over, he served a legal notice on 11.05.2009 to the defendant and thereafter the suit for specific performance of the contract has been filed on 06.06.2009. Therefore, all the ingredients required for specific performance of the contract has been fulfilled by the plaintiff and a decree ought to have been passed in his favour for specific performance of the contract, instead thereof, the suit has been dismissed which is liable to be set aside.

None appears on behalf of respondent-defendant though served.

I have heard the counsel for the appellant/plaintiff and perused the record of the trial court.

The question for consideration would be whether the appellant/plaintiff is entitled for a decree of specific performance of contract or not ? There are two agreements filed in the present suit allegedly executed by the defendant i.e. dated 02.07.2007 & 06.09.2008. The agreement dated 02.07.2007 consists with sale consideration of suit land as Rs.70,000/- per acre, however, in the second agreement dated 06.09.2008 the total sale consideration was fixed as Rs.2,03,000/-. In the first agreement an amount of Rs.50,000/-was shown to have been paid as advance amount in lieu of total sale consideration whereas, in the subsequent agreement it has been mentioned that out of total sale consideration, Rs.2,00,000/-was paid to the defendant and remaining amount of only Rs.3000/- was to be paid at the time of registration of the deed. The subsequent agreement dated 06.09.2008 is a registered agreement. If the agreement dated 06.09.2008 was bonafidely executed by the parties and out of total sale consideration of Rs.2,03,000/- an amount of Rs.2,00,000/- was already paid as advance amount and parties were also present in the registration office for registration of agreement, only for a nominal amount of Rs.3000/-why the plaintiff did not get the sale deed registered. This conduct of plaintiff raises suspicion over genuineness of the said agreement though it was a registered agreement executed between the parties. Almost the entire amount of sale consideration was allegedly paid, the parties were present in the registration office and therefore they could have registered the sale deed instead of registering the agreement. Only for remaining amount of sale consideration of Rs.3000/- six months time was taken for registration of sale deed. This also creates doubt.

The plaintiff, in support of his claim, has filed the copy of legal notice dated 11.05.2009, Ex.P/2 which is said to have been served upon the defendant, however, there is no postal receipts or acknowledgment that it was actually sent to defendant by post or served personally. In the said notice dated 11.05.2009 there is no mention about the subsequent agreement dated 06.09.2008. Not a single word has been mentioned about the fact that on 06.09.2008 there was an agreement executed between the parties with respect to sale of land and this notice consists only with respect to averment of the agreement dated 02.07.2007. Admittedly, the case of plaintiff was that on 06.09.2008 a subsequent agreement was executed between the parties, however, notice Ex.P/2 has been served upon the defendant on 11.05.2009 which was subsequent to execution of said agreement dated 06.09.2008, but there is no mention about the said agreement dated 06.09.2008 in the notice dated 11.05.2009 which is the most crucial aspect in the case instituted by the plaintiff for specific performance of the contract. The defendant have specifically denied in his written statement of having entered any agreement with plaintiff with respect to sale of his land.

PW-1, Anil Kumar Paraswani, has admitted this fact that in the notice dated 11.05.2009 there is no mention about agreement dated 06.09.2008. He also admits that the fact of agreement dated 02.07.2007 has not been mentioned in the subsequent agreement dated 06.09.2008. He admits that he has not paid any amount to defendant in the registration office, however, he paid the amount in his house.

PW-2, Ramavtar Chouhan, have stated in his evidence that he was present at the time of last transaction between Anil and Jugesar and he was present at the time of execution of document Ex.P/1. At that time, the agreement was executed to sale the land for a consideration of Rs.70,000/- and Rs.50,000/- was paid as an advance to the defendant. He was not present in the subsequent execution of document and it was wrongly mentioned in his affidavit of examination in chief. He also states that at the time of execution of agreement, no amount was paid to the defendant, but on the instance of defendant, the plaintiff paid an amount of Rs.1,50,000/-in his shop. This payment of amount to the defendant in his shop is not mentioned in his examination in chief. From perusal of his examination in chief it transpires that this witness has stated that at the time of registration of second agreement dated 06.09.2008, an amount of Rs.1,50,000/- was paid to defendant at that time itself, whereas, in cross examination, he admits that at that time the plaintiff has not paid any amount to the defendant.

The trial court, after considering the entire facts and circumstances of the case and the evidence led by the parties, held that the evidence produced by the plaintiff is suspicious and there were certain contradictions in execution of two agreements, service of legal notice to the defendant and pleadings made in the plaint which was subsequently amended with respect to two agreements. The trial court also considered the evidence of two witnesses to the agreement and held that entire transaction as put forth by the plaintiff is suspicious which has not been proved by leading cogent and sufficient evidence and the evidence produced by the plaintiff does not support his claim that there was any agreement executed between the parties to sale the land of the defendant for a total sale consideration of Rs.2,03,000/-out of which Rs.2,00,000/- was allegedly paid as advance.

With respect to readiness and willingness, the trial court has also considered that there was two agreements and its execution itself is suspicious; in the legal notice dated 11.05.2009 there was no mention about subsequent agreement dated 06.09.2008 and there is no any postal receipts or acknowledgments filed by the plaintiff that the said legal notice was actually served upon the defendant. Therefore, the entire mode of transaction and conduct of the plaintiff does not show that he was ready and willing to perform his part of contract.

Considering the entire evidence available on record the trial court has rejected the claim of plaintiff and dismissed the suit, in which, I do not find any perversity or illegality to interfere with the impugned judgment and decree passed by the trial court. Accordingly, the appeal filed by the plaintiff fails and is hereby dismissed. Parties shall bear their own costs.

Decree be drawn accordingly.