Govind Narain vs Hans Raj

Arun Madan, J.—This civil first appeal has been preferred u/s 96, CPC. by appellant (defendant) against the judgment and decree dated 10.3,1997 passed by the learned Additional District Judge, No. 7, Jaipur City. Jaipur in civil suit No. 46/88 whereby suit for specific performance filed by respondent (plaintiff) has been decreed deciding all issues in his favour and against the defendant.

The facts giving rise to the filing of this appeal briefly staled, arc that the plaintiff (respondent) filed a suit for specific performance of an agreement of sale (Ex. 1) alleged to have been executed between plaintiff and defendant on 27.2.1982 with respect to a plot of land bearing No. A/l6 situated in Janta Colony. Jaipur City. The plaintiff averred in the plaint that the defendant (appellant) had agreed to sell his plot in dispute for a sale consideration of Rs. 2 lacs, for which the plaintiff had given him an advance payment of Rs. 25,000/- by way of cards money at the time of execution of sale agreement (Ex. T). As per conditions of the sale agreement (Ex. 10). the defendant was required to obtain ''No Objection Certificate'' from income tax department within two months of its execution, as well as "no due certificate'' for repayment of loan of Rs. 15.000/- to the Collector Jaipur and thereafter to furnish receipts in lieu thereof before execution of a sale deed in performance of sale agreement (Ex, 1).

The plaintiff further alleged that since the defendant did not perform his pari of obligations to the conditions under the sale agreement (Ex. I). a notice dated 20.9,.1982 was served upon him through an Advocate to get the sale deed executed but since the defendant did not execute sale deed, the (plaintiff)- had no option but to file the present suit to get enforced specific performance of sale agreement (Ex. 10).

The defendant contested the plaintiff''s suit in his written statement denying all allegations and averments made in the plaint. The defendant specifically denied to have executed any such agreement dated 27.2.1982 Ex. 1, as suggested by the plaintiff. The defendant inter-alia contended that the sale in question of suit plot was concocted, forged and prepared on blank papers. The defendant also stated that though he was in debts as result of loan lent from various money lenders and the plaintiff being one of such money lenders/brokers through whom he had lent money, but he was not in a position to clear those debts forthwith at the demand of such money lenders/brokers like the plaintiff, he was pressurized by them to settle his debts and, in fact the agreement of sale dated 27.2.1982 (Ex. 1) was not voluntarily executed by the appellant but in fact, in good faith and in view of the simultaneous agreement for appointing the Arbitrators for disposing of his property under the bona fide belief that it would be disposed of for an adequate consideration of Rs. 7 lacs so as to enable the appellants to clear of his debts and for which the signatures of the appellant were obtained on the blank stamp paper.

The defendant further specifically pleaded in his written statement that in the agreement of appointing a forenamed Arbitrators, one of the important conditions was that the Arbitrators would have powers to examine account books and settle outstanding debts by selling suit plot but with the consent of the defendant as to the sale consideration thereof and further that no dispute in future would be raised by any of the creditors. Since the plaintiff was the key person in getting the Arbitration agreement executed, he forced the defendant to sign on blank stamp papers so (hat he may not refuse later on from selling the suit plot. This was specifically denied by the defendant by pleading that no other agreement except arbitration agreement was entered into between them and he had never agreed to self the suit land for Rs. two lacs to the plaintiff. The defendant further averred that the agreement to sale (Ex. 1) was forged document and could neither he relied or acted upon.

The defendant further pleaded in his written statement (hat in fact the market value of the sq. it plot was not below rupees seven lacs and he had also made an offer for sale consideration to the tune of rupees 6.5 lacs to the Arbitrators but no heed was given by them nor they took any steps lo examine accounts books so as to settle disputes with various money lenders and the brokers. He had further averred in the written statement that in fact, he had received on offer of Rs. 6 lacs to Rs. 6 & half lacs but he was even expecting higher price so as to enable him lo meet the demands of creditors. It has also been pleaded by the defendant that from the face of document (Ex. 1) it was clear that it was forged and concocted one. The facts as to (1) agreement for arbitration was executed on the same day i.e. 27.2.1982 for sale of the suit plot by Arbitrators (2) the alleged transaction of sale having taken place between the parties being not recorded in the agreement for arbitration so also (3) presence of other persons/Arbitrators who were present, having not been shown except to persons, all remain unexplained on record at the instance of the plaintiff. The payment of amount of Rs. 2 5,000/- as an advance towards sale consideration to the tune of Rs. two lacs, to the defendant was also denied in written statement.

On the basis of the pleadings of the parties, the trial Court framed 16 issue on the basis of which evidence was led by the parties. In support of his case, plaintiff besides examining himself as PW 1, examined three other witnesses including his son. The defendant examined himself as DW 1 and produced Ram Laxman (DW 2). Babulal Lakholia (DW 3), O.P. Gupta (DW 4), MR. Kothari (DW 5), B.K. Agarwal (DW 6), Sidlikaran Jain (DW 7) and Gordhandas Malpam (DW 8). After hearing the parties, the learned trial court by its judgment and decree dt. 10.3.1997 (impugned) in the present appeal deciding all issues in favour of the plaintiff and against the defendant thereby decreed the suit for specific performance. Hence this appeal.

I have heard the Learned Counsel for the parties at length and examined the relevant record containing evidence of both the parties with reference to their respective contentions as well as legal inspect of the matter.

While reiterating the case as pleaded by the defendant in his written statement. Shri S.M. Mehta learned Senior Advocate for the defendant (appellant) contended that the learned trial court ought to leave decided issue Nos. 1, 2, 5 to 9 & 12 collectively and therefore, has gravely erred in holding that the defendant had agreed to. dispose of the suit premises for rupees two lacs only to the plaintiff for which he received Rs. 25,000/- as an advance towards sale consideration. Shri Mehta contended (hat infact agreement to sell dated 27.2.1982 (Ex. 1) was not voluntarily executed by defendant but in" fact in good faith and in view of simultaneous agreement for appointing Arbitrators for disposing of the suit property through the plaintiff for and adequate consideration to the tune of Rs. seven lacs so as to clear the entire debts of the defendant for which signature of defendant was obtained on blank stamp papers. Shri Mehla further urged that it was never agreed to between the parties that the suit property would be sold by undervaluing the same only for rupees two lacs as against market value thereof to the extent of Rupees seven lacs, inasmuch as where was the occasion for the defendant lo have agreed to sell the suit property by undervaluing his property when it was fetching higher consideration and by voluntarily agreeing to sell the same to the plaintiff for lesser sum in the manner suggested by plaintiff in his plain.

Shri Mehta also contended Dial the manner and circumstances of the case were clearly suggestive of the fact that the plaintiff had perpetrated fraud upon the defendant by executing the sale agreement in question which was neither agreed nor acted upon.

The sale Agreement (Ex. I) obviously shows mala-fides on the part of the plaintiff since he was in great hurry to dispose of the suit property for much lesser consideration than the higher sale consideration which could have fetched in Die market. Here, there was absolutely no occasion for the appellant to have agreed to dispose of the suit property for a much lesser sum. Shri Mehta further contended that since the plaintiff and the Arbitrators as referred to in agreement were money lenders/brokers whose regular course of business dealing is that whenever the money was advanced by way of loan to the party in need, to obtain signatures on blank stamp papers or forge the same with a view to defraud the defendant, so that the authority for sale of the house in favour of the plaintiff would be executed in case the defendant backs out from his commitment to sell the same.

It. has further been contended by the Learned Counsel for the appellant that the defendant had never received Rs. 25,000/- as earnest money for which no receipt has been shown or proved on record; onus of proving the same was heavily on the plaintiff and in fact the defendant had already received a higher offer of Rs. 6.5 lacs as sale consideration for the suit properly but since he was expecting even higher value and so other creditors agreed that the suit house could be sold to the plaintiff for adequate price and they could be paid off their loan.

As regards the findings of the learned trial court that the defendant had agreed to dispose of the suit property for a sum of Rs. two lacs to the plaintiff as against which he had received Rs. 25,000/- as an advance/earnest money, Shri Mehta contended that, the learned trial court has gravely erred in not having examined statement of plaintiff in its true perspective. The defendant in his deposition during cross-examination has clearly denied that an agreement was ever entered into for. sate of suit property which is a limit in house for Rs. two lacs or any advance of Rs. 25,000/- was ever received from the plaintiff against sale consideration sale consideration as earnest money by him.

In order to appreciate the evidence on record with reference to the respective contentions of the Learned Counsel for the parties, the evidence on record has to be scrutinized in its true perspective from which it would be explicitly clear that the suit property is admittedly situated in a posh colony i.e. Janta Colony of Jaipur City and is double strayed house with adequate accommodation on a covered area of 625 sq. yards duly constructed in the year 1982and at the time of alleged contract its value was not less than Rs. seven lacs. Therefore, Shri Mehta contended that it is inconceivable that the defendant would have agreed to sell the house by agreeing for a much lesser sum than the higher market price which it could have easily fetched to sell the same at throw away price of rupees of two lacs only to the plaintiff in the manner as contended on his behalf.

Shri Mehta also contended at the bar that the plaintiff had not come with clean hands inasmuch as he had drawn up the agreement on stamp paper which was got signed by the defendant who has not admitted in signatures thereon. Shri Mehta urged that the plaintiff has utterly failed to prove that he had paid Rs. 25,000/- to the defendant as advance by way of earnest money at the time of execution of the sale agreement and further that the plaintiff has failed to prove in his accounts books though he staled that he used to maintain accounts and make entry in accounts books and he made entry of Rs. 25,000/- in his account books, but this by itself could not be relied upon by way of best evidence since if earnest money was ever paid, there should have been property executed and duly signed receipt so as to be relied upon by way of admissible evidence inasmuch as the plaintiff failed to produce his accounts books to corroborate his oral version made in his deposition before the Court, Hence, under the circumstances adverse inference ought to have been drawn against him as to his case for having paid Rs. 25,000/- as earnestt money towards sale consideration.

Shri Mehta also contended that the learned trial Court has gravely erred in deciding Issue Nos.3 & 4 by recording findings in favour of the plaintiff and the trial Court has failed to appreciate vital aspect of the matter that since the plaintiff had failed to comply with terms and conditions of agreement (Ex. 1) inasmuch as lie had failed to prove payment of Rs. 25,000/- as earnest money, therefore, the learned trial Court ought to have held that the plaintiff was not ready and willing to perform It is pan of performance. The readiness and willingness has to be established not only by mere fact of part of performance of the agreement but bona-fides intention of the parties has to be inferred from all surrounding circumstances regarding execution of the contract. In support of his contention Shri Mehta urged dial it is settled position of law that readiness and Willingness should not be inferred as against performance of part of the contract but the entire agreement as a whole which admitted is lacking in (his case insofar as the plaintiff is concerned.

Lastly. Shri Mehta contended (hat the conclusions arrived at by the learned Trial Court on all issues was overwhelming evidence to prove value of suit property to the tune of rupees seven lacs as on the date of the alleged agreement in question but the trial court has gravely erred in hot appreciating in its true perspective that once the market value of the suit property like similarly constructed properties was proved as Rs. seven lacs for which the defendant had led satisfactory and sufficient ample evidence on the record so as to rebut plaintiff''s case, as to what, were those sparing reasons for which ''the defendant would have agreed lo sell the suit property at a lesser price of Rs. (wo lacs much below & lesser than market value of Rs. seven lacs prevalent a( the relief in time remains unexplained on the record. (sic)-facts. This was the duly of plaintiff to prove the same which admittedly he had Jailed lo do so.

Confronted with the aforesaid contentions advanced by Shri Mehta. it has been vehemently contended by Shri M.M. Ranjan. Learned Counsel for the respondent that while granting a decree for specific performance of a contract with regard lo immovable property, the findings of the trial Court are well reasoned and plaintiff had taken all steps to discharge the necessary onus cast upon hint and it has been admitted by the defendant himself that signatures on contract (Ex. 1) were made by him and in this view of the matter, the defence of the defendant that he had signed on blank stamp papers and his signatures were utilized by the plaintiff to his disadvantage, is absolutely false and no prudent man could accept such a plea. Shri Ranjan has also contended that he defendant had sufficient property which he had agreed to sell and it was only on account of dire necessity of the defendant that the plaintiff had agreed to buy the same otherwise there was no occasion for the defendant to have executed agreement to sale Ex. I nor was t here any occasion for the plaintiff to leave agreed to buy the same. Shri Ranjan then contended that the defendant has not explained any reason as lo how had he signed in the register of notary public whereas Krishan Kumar (PW 4) has proved agreement so also payment of consideration; besides from statements of P Ws 2 & 3 (Ashok Kumar & Kishan Kumar Notary) and therefore, there is no reason to disbelieve their version.

As regards value of the suit house at Rs. two lacs on the relevant date, it has been contended by Shri Ranjan that the findings of the trial Court in tin''s regard cannot be said to be perverse or bad and each material has been considered by it, therefore, its finding based on evidence on record, being well reasoned is not open to challenge. Shri Ranjan further contended that the learned trial Court has examined the evidence analytically and then come to the finding that Rs. 25,000/- were paid to the defendant by way of earnest money and the agreement to sale was rightly executed which-is corroborated by the evidence as well as admission of the defendant himself and as such the trial Court has rightly decided Issues Nos. 1, 2, 5 to and 12 in favour of the plaintiff.

As regards Issues Nos.3 & 4 it has been contended that they have rightly been decided in favour of the plaintiff. Since the plaintiff was ready and willing to perform his part of performance by giving prior notice to the defendant before filing the suit while the defendant has not successfully discharged his onus regarding his willingness and readiness to perform the agreement. Shri Ranjan also contended that the discretion exercised by the learned trial Court could not be interfered with by this Court unless there arc compelling circumstances, which the defendant has miserably failed to establish, and which would disentitled the plaintiff for discretion for grant of a decree for specific performance of the contract (Ex. 1). Shri Ranjan in this regard placed reliance upon Scc.20 of the Specific Relief Act which mandates that if discretion U/scc.20 of the Specific Relief Act has been exercised by the trial Court in favour of the plaintiff, then it should not be interfered with b y the appellate court,

Shri Ranjan further contended that jurisdiction to grant decree for specific performance being discretionary, the court is not bound to grant such a relief merely because it is lawful to do so by way of analogy of illustrations stated in Section 20(2) of the Specific Relief Act, which illustrates the following cases in which the court may properly exercise discretion not to decree specific performance-

(a) Where the terms of the contract or the conduct of the panics at the lime of Tittering into the contract or the other circumstances under which the contract was entered into arc such that the contract, though not voidable gives the plaintiff and unfair advantage over the defendant; or

(b) Where the performance of-the contract would involve sonic hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff;

(c) Where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Shri Ranjan farther contended that mere inadequacy of consideration with reference to explanation 1 to Section 20 of the specific 2 to Section 20 of the aforesaid Act; Shri Ranjan contended that the question whether performance of contract would involve hardship to the defendant within the meaning of clause (b), shall except incases where hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of contract and the Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

22-A. Alternatively, Sri Ranjan contended that the court should not refuse any specific performance of contract merely on the ground that the contract is not enforceable at the instance of the other party.

I have examined validity of the aforesaid rival contentions of both the parties with reference to settled position of law on the subject. Prima-facie, I am of the view that there is no statutory duty case upon the Court that it must and should in all cases decree specific performance of contract by ignoring conduct of the party at the time of the alleged agreement which is very relevant factor to be considered besides other circumstances in which the contract was entered into and notwithstanding that the contract would involve hardship to the defendant which he did not foresee or where its non-performance would not involve any such heads-up. Mandate of legislature as regards Section 20 of the Specific Relief Act, on which Shri Raman has placed reliance heavily is to be guided by sound judicial principles before exercising judicial discretion 10 decree specific performance. It is not binding on the court 10 decree specific performance in every case rather facts and circumstances of each case weighed with the evidence on record have to be appreciated and in fact there is no statutory duly lo decree specific performance in ever)'' case. The present case is a blatant example of conduct of the plaintiff which itself is heavily shrouded with suspicion and mystery coupled with the circumstances in which the alleged agreement to sale dated 27.2.1982 (Ex. 1). was executed.

From a perusal of statement of plaintiff (PW 1) it is evident that he had not come with clean hands before the Court and the entire transaction of sale agreement (Ex. 1) is highly suspicious. This fact is borne out from examination-in-chief of the plaintiff with regard to the objection raised in written statement as to the signatures on blank stamp papers having been obtained ail the instance and assurances of the Arbitrator for execution of the arbitration agreement for disposal of the suit property by them. The learned trial Court has gravely erred in not having examined statement of the defendant in its true perspective, who had in his cross-examination clearly denied that an agreement (Ex. 1) was ever entered into for the sale of properly in suit for rupees two lacs only as against which he had received Rs. 25,000/- from the plaintiff as earnest money and which admittedly could fetch much higher consideration as per the prevailing prices of similarly constructed properties having regard lo the nature of construction and the locality in which it was. situated. The plaintiff has failed to prove as lo what -were those sparing reasons for which the defendant would have agreed lo sell the suit house at a lesser price of rupees two lacs much below the market value of Rs. seven lacs as prevalent at the relevant time. Nobody by any stretch of imagination would like to sell his property at a throw away price and for this no evidence has been led by the plaintiff lo rebut presumption. In fact looking to the conduct of the plaintiff in surreptitious manner in which the document (Ex. 1) was executed as on 27.2.1982 between the parties, is dourly suggestive of the fact after careful perusal of recitals of the agreement (Ex. I) that the alleged sale consideration of Rs. two lacs for which the parties had allegedly agreed, is shrouded with mystery and rather in my considered view, it casts heavy suspicion on the conduct of the plaintiff as lo the defendant having agreed lo sell the suit house at much lesser price than the market value. This fact is borne out from the covenant pertaining lo earnest money since Rs. 25,000/- payment of which has been vehemently disputed by the defendant inasmuch as admittedly the onus to prove tins issue of having advanced this amount as against sale consideration of Rs. two lacs was heavily on the plaintiff and since this onus having not been satisfactorily discharged by leading cogent evidence before the learned trial Court, where was the occasion for the plaintiff lo have agreed to pay the defendant an amount of Rs. 1.75 lacs at the time of execution of registered sale deed remains unexplained on the record.

The plaintiff has also failed to prove by discharge of the onus of the fact that since the defendant was in need of the money he had agreed to sell the suit house at lesser price of Rs. two lacs particularly when the defendant, himself has vehemently disputed this fact and on the contrary has led reliable and cogent evidence on record by proving the fact that the market value of similarly constructed properties was much higher i.e. lo the tune of Rs. seven lacs or even more and hence it does not stand lo reason at all for the defendant having agreed to dispose of or alienate the suit locus much lesser price of Rs. two lacs. The circumstances rather arc shrouded with mystery and the manner in which the agreement in question (Ex. 1) was fictitiously executed, as well as the conduct of the plaintiff, who was admittedly property broker and money lender, is indicative of the fact that the agreement dated 27.2.1982 (Ex. 1) was prepared surreptitiously without consent and knowledge of the defendant and it was as a matter of surprise to the defendant as to how such a contract came to be allegedly executed by him with plaintiff so as to deprive him of valuable property, possession of which he never wanted to loose nor he ever consented to by agreement to sell the suit house.

In my considered view, before a suit for specific performance is decreed by the Court, essential safeguards must be observed as lo the nature of parties, which is equally relevant factor to be reckoned with at its first instance and when it appears lp the trial Court that document on the basis of which the plaintiff is seeking specific performance thereof is not enforceable, the Court must examine as to whether on its prima-facie view, not only on the basis of evidence of the parties on record but also from the recitals of the document itself whether its specific performance is at all permissible. Any such findings recorded by the trial Court in favour of the plaintiff by directing enforcement of the contract without making proper inquiry would be disastrous as has happened in the present case since placing such a construction recitals of an agreement which is highly disputed would tantamount to depriving a person of valuable property which he may have never agreed to sell or part with its possession;

Since admittedly neither consent nor willingness of the defendant was obtained prior to his having agreed to sell valuable suit house at much lesser price than its market value of Rs. seven lacs as on the relevant dale and this investigation part of the inquiry is equally very essential before any such agreement should be permitted to'' be enforced, one should not lake situation lightly particularly when the property matters and-involved and the nature of document, itself is shrouded with mystery, on the basis of which the plaintiff has sought specific performance. Hence the question of specific performance of such a contract haying been allowed should not have been done and does not arise in any circumstances which arc heavily shrouded with mystery.

I am farther of the opinion that from the evidence on record what is relevant to mention is that the defendant and his family members had no other, residential house at Jaipur except the suit house at the relevant time, the contract in question was allegedly executed in a surreptitious manner, inasmuch as in suit house he was admittedly residing alongwith his family members there was no occasion for him to have agreed lo sell the same in the manner suggested by the plaintiff. Further more, version of the plaintiff that the agreement to sale (Ex. 1) was executed in duplicate papers while its one copy was allegedly remained with the defendant, in my view is apparently false inasmuch a$ the plaintiff had while deposing in his evidence in rebuttal has himself produced said copy by stating that R.U. Oswal had given the same to him on 10.3.1983 saying that since his debts have already been cleared and as such document Ex. l/l may be kept with the plaintiff for his use. In my considered view the entire story of the plaintiff has been deliberately cooked up that the duplicate copy was given to the defendant while one remained with him appears to be perse erroneous particularly when the plaintiff had not discharged his onus by producing R.U. Oswal in the witness box, particularly when nothing prevented him from so doing.

I am further of the opinion that the trial Court has gravely erred in deciding Issue No. 14 against the defendant simply on the basis of its finding recorded on Issue Nos.3&4 which are erroneous and consequently findings on Issue No. 14 cannot be accepted. As regards Issue No. 15 the trial Court has held that agreement (Ex. A/1) regarding appointment of Arbitrators stood proved and has thus drawn erroneous inference on the same. It is rather surprising to note that the Arbitrators who were allegedly agreed to be appointed were themselves not examined nor any witness had been cross-examined on the issue, where was the occasion for the defendant to have agreed for the appointment of such Arbitrators or to have referred the matters to the Arbitrators particularly when the ingredients of arbitration are lacking itself. Hence the question of willingness of the defendant for having agreed to refer the matter to the Arbitrator in view of any dispute having arisen does notaries and is ruled out altogether. Moreover no evidence much less any satisfactory evidence has been led in this regard, the onus for discharging the same was on plaintiff.

I am also of the opinion that looking to the conduct of the plaintiff that the Arbitrators Sarva Shri Bal Kishan Agarwal (PW 6) and Madho Ratan Kothari having withdrawn from the agreement (Ex. A/1) and thereafter no ruttier action having been taken in pursuance of EN. A/1, the curie intact automatically stood rescinded and dropped.

From the evidence on record, it stands proved Hint the plaintiff was a money lending broker who used to provide finance to defendant firm from R.U. Oswal and others. The plaintiff failed to produce accounts books in support of his case. The agreement (Ex. A/1) clearly shows that the defendant was being forced to sell his house to satisfy the dues of various money lenders and since the plaintiff was broker, he played active role alongwith R.U. Oswal and Krishna Kumar to grab defendant s house b y adopting oppressive methods which stand proved on record. Further the plaintiff stated that he had no concern with the creditors of the defendants which is contrary lo Ex. A/1 which was executed to settle the dues of the creditors and the plaintiff himself was one of the ''Panchas'' and he was required to clear all the accounts of the defendant by selling the suit property. Thus the plaintiff made a false-statements so as to set up a false plea of giving Rs. 25,0007- as earnest money in pursuance of his agreement (Ex. I) to sale. From a perusal of copy of notary- public register (Ex. 7) it is apparent that the entry ofRs.25,000/- is over lapping on two lacs and this entry was inserted hideout. Even this plea is also false because notary- public in his cross examination specifically slated that no amount was ever paid in his presence, then how could he make such an entry in the Register is also beyond imagination.

Undoubtedly, R.U. Oswal was witness to agreement to sale (Ex. I) as is admitted case of the plaintiff and as against it. R.U. Oswal has not been produced by the plaintiff, who failed to produce any independent witness to prove execution of Ex. 1. The plaintiff has further failed lo produce any of the Arbitrators or witnesses to the document to prove his contentions in support of his case. Moreover, in agreement (Ex. A/I) when there is no mention of agreed sale amount, the plaintiff should have produced the arbitrators to prove the transaction while on the contrary he tried to conceal this fact of execution of Ex. A/1 from the court. Hence, there is no reason to disbelieve version of Bal Krishan (DW 6) as he was the sole witness before the court lo prove the, transaction and from his statement it stands proved that the transaction of agreement to sale was never executed for Rs. two lacs and the defendant was oppressed by money lenders (o sign the blank stamp papers.

On a careful and bare analysis of the evidence on record. I am of the considered view that since the evidence led by the plaintiff is full of material contractions and does not inspire any confidence and even with regard to the entry, Kishanlal Verma in whose presence the agreement (Ex. 1) was alleged to have been executed, having himself denied the payment of Rs. 25,000/- as earnest money since he has stated that value of the suit house was not settled in his presence, in such circumstances, (here was no occasion for the trial Court to have recorded finding that the agreement (Ex. 1) was stood proved and as such the trial court should have drawn adverse inference against the plaintiff.

Now I may deal with rulings cited at the bar. To substantiate his contentions, Shri Mehta has placed reliance on the decisions in (1) Manickatahammal and Others Vs. Nallasami Pillai and Others, (2) Kommisetti Venkatasubbayya Vs. Karamsetti Venkateswarlu and Others, (3) Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, (4) Sunil Chandra Ghosh Vs. Hemendra Kr. Deb, (5) Rabindra Nath Sahu v. Maya Devi ( AIR J 991 Pat 192), (6) M/s. P.R. Deb and Associates Vs. Sunanada Roy, (7) P.V. Joseph''s son Mathur v. N. Kuruvila''s Son and (8) S. Rangaraju Naidu Vs. S. Thiruvarakkarasu, whereas on the Other and, Siri Ranjan Vehemently cited the decisions in Lalji and Others Vs. Ramji Seth, (2) Neta Vs. New Pink City Grah Nirman Sahkari Samiti Ltd., Jaipur, (3) Vijay Minerals Pvt. Ltd. Vs. Bikash Chandra Deb, (4) K.M. Rajendran Vs. Arul Prakasam and another, (5) Pandurang Ganpat Tanawade Vs. Ganapat Bhairu Kadam and others,

I have gone through the ratio of aforementioned decisions cited by the Learned Counsel at the bar and find the following rulings relevant for the purpose of disposal of this appeal.

in P.V. Joseph''s son Mathew v. N. Kuruvila''s son (supra), the apex Court while examining the controversy which had arisen in the context of interpretation of Section 20 of the Specific Relief Act. 1947 observed as under-

S. 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should lake care to sec that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.

In S. Ranga Raju Naidu v. S. Thiravarak Karasu (supra), the Apex Court held that though normally the discretion exercised by the courts below should not have been interfered with by it but having regard to the fact that the respondents were money lenders with whom appellant had entered into the agreement being not in a position to pay the amount due, predominant object of the agreement was payment of dues with interest, hence instead of decreeing specific performance of the sale agreement, justice would be met by granting alternative relief sought in the suit viz. decree for refund of the money due with simple interest @, 12% p.a.

In M/s P.R. Deb & Associates v. Sumanda Roy (supra) since the right of appellant to purchase suitable accommodation for himself out of part payment seriously affected by non payment of a particular amount as agreed to within reasonable time and since the respondent had failed to performed his part of contract inasmuch as in any case lite appellant failed to comply covenant of the contract relating to payment of the agreed amount and few of other conditions also attached to the same, the Apex Court held that looking to the conduct of the parties and the evidence led on record in any case decree of specific performance should not have granted as it would be unfair and unreasonable to do so merely because of the assertion that he was ready and willing to purchase suitable accommodation in question while the respondent was unwilling to perform his part of the contract, the decree for specific performance cannot be granted Therefore, readiness and willingness of both the parties have to be seen on the basis of cogent and reliable evidence on record and the plaintiff in a suit for specific performance must be ready and willing to perform his part of the performance on all material particulars, which are lacking in the facts and circumstances of the case at hand. Hence in my, considered view, the impugned judgment & decree is not sustainable in law and deserves to be quashed and set-aside.

As a result of the above discussion, in my considered view, the decree for specific performance in the instant case should not have been granted contrary to the settled principles of law being opposed to the interest of justice, In fact, the plaintiff has made misstatement as well as contradictory version not only with respect to the agreement to sale (Ex. 1) but also agreement for arbitration, itself, for which there was no basis to, place reliance thereon.

As a result of above discussion, the appeal is allowed. The impugned judgment & decree dated 10.3.1997 passed by the Additional District Judge No. 7, Jaipur City in civil suit No. 46/88 is set-aside. The suit of the plaintiff accordingly stands dismissed. There Would be no order as to costs.