Des Raj Bhatnagar vs Smt. Chandrawati

Pradeep Nandrajog, J.—The appellant had filed a suit for specific performance against the family members of Nathu Singh, alleging that on 9.1.1979 Nathu Singh had agreed to sell 45 sq. yds. of land with a room and a veranda constructed thereon to the appellant for a consideration of Rs. 30,000/ -; the property was stated to be bearing Municipal No. 791/5, Sukhdev Nagar, Kotla, Mubarak Pur. It was asserted that the bargain between the parties was recorded in a receipt dated 9.1.1979 executed by Nathu Singh when he received Rs. 5,000/- as part sale consideration vide cheque bearing No. PPT-126098 dated 9.1.1981 drawn on Punjab National Bank, Lodhi Road Branch, New Delhi.

It was stated that the sale was agreed to be completed by 8.9.1979.

Since Nathu Singh had died on 2.8.1980, specific performance of the agreement was sought to be enforced against his legal heirs.

Defendants Nos. 1, 3 and 4 filed a written statement alleging that defendant No. 2, Jaswant Singh, a son of Nathu Singh, was behind the frivolous suit. They alleged that Nathu Singh did not receive any money from the plaintiff much less executed any receipt. They alleged that Jaswant Singh who was having inimical relations with his father and was behind the mischief.

Needless to state, the only material issue which arose for consideration at the trial was whether Nathu Singh had entered into an agreement to sell and whether he received Rs. 5,000/ - from the plaintiff towards earnest money.

The cheque in question in sum of Rs. 5,000/ - stated to have been issued in the name of Nathu Singh by the plaintiff drawn on Punjab National Bank, Lodhi Road was proved at the trial as Ex.PW-1/1. The cheque evidences that it was issued on 15.1.1979 and was cut out as an ''Account Payee'' cheque. The date 15.1.1979 has been scored of and overwritten by the date 9.1.1979. The cheque has been issued by the plaintiff (appellant), Des Raj Bhatnagar, in favour of Nathu Singh. At the reverse of the cheque, 2 signatures of Des Raj Bhatnagar are found appended. Next to them are signatures in Urdu, probably purporting to be those of Nathu Singh.

The witness from the bank examined by the plaintiff, namely PW-1, an accountant of the bank stated that it appears that the signatures in Urdu at the place mark ''B'' on the cheque Ex.PW-1/1 evidenced that somebody presented the cheque for encashment by drawing cash and since the cheque was an ''Account Payee'' cheque the, the bank refused to accept the cheque and that the cheque got represented for cash payment on 9.1.1979 with the date 15.1.1979 scored of, the notation ''Payee Account only'' scored of, the notation ''or bearer'' which was originally scored of had the word ''bearer'' written in hand with signatures of Des Raj Bhatnagar at every place of overwriting or correction. With reference to signatures of Des Raj Bhatnagar i.e. the plaintiff at the rear of the cheque at the place mark ''A'', the witness stated that it was apparent that Des Raj Bhatnagar had presented the cheque and had received the money for the reason at the place where the printed words "or bearer" which were originally struck off were replaced by the word "bearer" written in hand with signatures of Des Raj Bhatnagar at the said place. Similarly, where the words "payee account only" were written were struck off and signatures of Des Raj Bhatnagar were appended.

Jaswant Singh, son of Nathu appeared as PW-2 and deposed that the signatures at the place mark ''B'' on the cheque Ex.PW-1/1 were his father''s signatures. He also stated that the counterfoil Ex.PW-2/2 bore the signatures of his father at mark ''A''. He stated that he was present when the agreement in question was arrived at between his father and the plaintiff. He stated that the talks were held on 1.1.1979. He further stated that his father received the cheque in his presence. He stated that his father asked him to persuade the plaintiff to pay him Rs. 5,000/ - on 7.1.1979. He stated that his father went to withdraw the money on 9.1.1979 but the cheque was not honoured for want of funds.

The learned Trial Judge has disbelieved the story of the plaintiff by disbelieving the testimony of Jaswant for the reason the plaintiff never stated that Jaswant was present when the bargain was struck. The purported receipt Ex.PW-2/1 dated 9.1.1979 stated to have been executed by Nathu has been disbelieved. Further, the version given by Jaswant pertaining to the cheque being issued on 7.1.1979 was contrary to the case pleaded by the plaintiff. The plaintiff''s testimony was disbelieved that Nathu had withdrawn Rs. 5,000/ - under the cheque. From the testimony of the witness of the bank, learned Trial Judge has opined that the evidence probablize that the plaintiff had withdrawn the money under the cheque.

The learned Trial Judge has noted that there was evidence on record to establish inimical relationship between Jaswant and Nathu.

We need not pen a lengthy judgment at the appellate stage as we are satisfied with the view taken by the learned Trial Judge.

We only note some additional features which strengthen the view taken by the learned Trial Judge.

The first important feature is that the receipt Ex.PW-2/1 does not bear the signatures of Nathu Singh. At the place mark ''A'' where Nathu Singh has purportedly executed the receipt we find a smudged thumb impression with hardly any legible impression of the thumb.

Now, as noted above, according to the plaintiff he had given the cheque in question to Nathu Singh for encashment. As noted above, at the rear of the cheque are to be found some signatures in Urdu. If Nathu Singh had signed in Urdu while receiving the cheque, we fail to understand as to why would he affix his thumb impression on the receipt Ex.PW-2/1.

That apart, the cheque in question makes an interesting reading. It bears the signatures of Des Raj Bhatnagar at 5 places on the face of the cheque and 2 signatures at the rear.

It is known to one and all that when a cheque which is a bearer cheque or is not drawn as an account payee cheque is presented for encashment, the person presenting the cheque signs at the rear of the cheque when the token is handed over. This event takes place before the clerk who has the ledger pertaining to the account on which the cheque is drawn. Thereafter, the person concerned moves to the teller and when the teller receives the cheque after process, when money is tendered under the cheque, the token is taken back by the teller and a second signature is obtained of the person who has presented the cheque and receives the money.

The 2 signatures at the rear of the cheque at the place mark ''A'' completely probablize that Des Raj Bhatnagar received the money under the cheque.

Indeed, the plaintiff tacitly admitted said fact when he stated that after making corrections in the cheque he accompanied Nathu Singh to help him withdraw the money.

Even otherwise, noting the time lag between the date when the suit was filed and the date when we are deciding the appeal i.e. today, assuming if the appellant is correct, we would still not be inclined to enforce specific performance of the agreement whereunder only 1/6th of the sale consideration stands paid.

We find no merit in the appeal.

The appeal is dismissed.

Since none appears for the respondent at the hearing today, there shall be no order as to costs.