Balbir Singh vs Harminder Singh

Rekha Mittal, J.—The present regular second appeal has been directed against the judgment and decree dated 10.05.2013 passed by the Additional District Judge, Ludhiana, accepting the appeal of the appellant/respondent and allowing the relief of specific performance of agreement to sell dated 01.03.2001 by modification of the judgment and decree dated 03.05.2010 passed by the learned trial Court.

Harminder Singh, plaintiff/respondent filed the suit for possession by way of specific performance of agreement to sell dated 01.03.2001 in regard to land measuring 08 kanals 0 marla, detailed in the head note of the plaint, on the premise that the defendant/appellant agreed to sell the aforesaid land for a sum of Rs. 1,90,000/-, received Rs. 50,000/- towards earnest money at the time of the agreement, another amount of Rs. 30,000/- on 05.05.2001, but failed to execute the sale deed upto 01.07.2002. It is averred that the plaintiff always remained ready and willing to perform his part of the agreement, remained present in the office of the Sub Registrar along with balance sale consideration on 01.07.2002, served legal notice upon the defendant to execute the sale deed but the defendant failed to discharge his obligation under the agreement. He also made an alternative prayer for recovery of the amount along with interest.

The appellant/defendant filed the written statement contesting the case of the plaintiff. The land in question is jointly owned and possessed by the defendant along with his brother Gurjunt Singh and as such, he was not entitled to enter into the alleged agreement to sell of specific killa number without consent of his brother. The plaintiff, who is a money lender has no licence to carry out money lending business and the suit is barred by his own act and conduct. He specifically denied the execution of agreement to sell and receipt of earnest money of Rs. 50,000/-. He further denied his signatures on the agreement to sell with the submissions that if his signatures are proved; the same would have been obtained by way of fraud and misrepresentation. The defendant took a loan from the plaintiff and agreed to return the same within one year, returned the loan amount and entry in this regard was made in the diary of the defendant in the handwriting and signatures of the plaintiff.

The controversy between the parties led to framing of following issues:-

Whether the defendant executed agreement to sell dated 01.03.2001 in favour of plaintiff and received Rs. 80,000/- as earnest money? OPP

Whether plaintiff is entitled to possession by way of specific performance of contract dated 01.03.2001? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the alleged agreement is paper transaction as the security for the repayment of the loan? OPD

Relief

The trial Court permitted the parties to lead evidence in support of their respective claims.

After having heard counsel for the parties and appraisal of evidence adduced by the parties, the trial Court determined issue No. 1 in favour of the plaintiff, but denied the relief of possession by way of specific performance of the agreement with the findings that the defendant might have borrowed money from the plaintiff and in lieu of that the plaintiff got said agreement to sell executed in his favour to secure the said loan.

Feeling aggrieved by the verdict of the trial Court to deny the principle relief of specific performance of the agreement to sell, the plaintiff carried the matter in appeal which was decided in his favour by the Additional District Judge, Ludhiana, holding him entitled to specific performance of the agreement to sell on payment of balance consideration.

Feeling dissatisfied with the verdict of the appellate Court, the present regular second appeal has been filed by the defendant/appellant Balbir Singh.

Counsel for the appellant contends that the Additional District Judge reversed the findings recorded by the trial Court without giving any cogent reason, therefore, the judgment passed by the appellate Court is liable to be set aside and the appellant would be bound to comply with the judgment and decree passed by the trial Court. It is further argued that a similar type of agreement has been propounded by the plaintiff, purportedly executed by one Bhim Sen and in the said agreement, Balwinder Singh, one of the attesting witnesses of the agreement to sell in question is also the attesting witness which goes a long way to indicate that Balwinder Singh is conveniently available to the plaintiff to become a witness in such like transactions. It is further argued that the appellant obtained loan of Rs. 30,000/- from the plaintiff and the plaintiff who is carrying out the business of money lending might have obtained his signatures at that time and used those blank papers for fabricating the agreement to sell.

I have heard counsel for the appellant and perused the case file as well as photocopy of the records of the trial Court made available by counsel for the appellant.

The trial Court recorded a finding against the appellant by accepting the plea of the plaintiff/respondent that agreement to sell dated 01.03.2001 was executed by him in favour of Harminder Singh and as a result, allowed the alternative relief of recovery along with interest in his favour. Admittedly, the appellant did not challenge those findings recorded by the trial Court meaning thereby, the findings of the trial Court that the agreement in question was executed by the appellant had attained finality. Even otherwise, counsel for the appellant has failed to point out if the concurrent findings of fact recorded by the Courts accepting that the agreement was executed by the appellant/defendant are either based upon mis-appreciation of evidence much less preserve. This apart, there is no plea of the appellant that the respondent ever obtained his signatures on blank papers much less blank stamp papers. Perusal of the agreement to sell (Ex. P1) makes it evident that it bears signatures of the appellant at the last page of agreement to sell dated 01.03.2001 and also on two endorsements, one on the back side of the first page and second on the back of third page of the agreement in regard to extension of time and payment of further amount of Rs. 30,000/- towards consideration. The mere fact that Balwinder Singh, an attesting witness of the agreement is also an attesting witness to another transaction between the plaintiff and one Bhim Sen, is not at all sufficient to intervene in the concurrent findings of fact recorded by the Courts.

The learned trial Court discarded the claim of the plaintiff for specific performance of the agreement to sell by making out a new case suo motto that the agreement might have been executed for securing loan taken by the defendant from the plaintiff. It is none of the plea of the appellant in the written statement that the respondent obtained his signatures on blank papers when he obtained loan of Rs. 30,000/- from the plaintiff. In the absence of any plea of the defendant that the agreement in question was prepared as a security for repayment of the loan amount, the findings recorded by the trial Court that the agreement might have been prepared for securing the loan amount have been rightly set aside by the appellate Court.

As the plaintiff/respondent discharged the onus to prove that he always remained ready and willing to perform his part of the agreement and in absence of any circumstances pleaded and proved by the appellant bringing his case within the purview of exceptions provided in Section 19 of the Specific Relief Act, 1963, I do not find any merit in the contention of the appellant that the first appellate Court committed any error much less illegality in modifying the judgment and decree of the trial Court and allowing specific performance of the agreement to sell. The questions formulated in para 9 of the grounds of appeal are not substantial questions of law. However, in view the above, no substantial question of law arises in the circumstances of the present case.

For the reasons aforesaid, the appeal is dismissed in limine. No order as to costs.