Puranchand & another vs Kishanlal @ Babulal & others.

This appeal has been preferred against the judgment and decree dated 14.05.1998 passed by the III Additional District Judge, Chhindwara in Civil Suit No. 63-A/96 whereby the respondent / plaintiff''s suit has been decreed against the appellant / defendant for payment of Rs. 30,000/- along with 18% interest per annum.

The respondent / plaintiff filed civil suit No. 63-A/96 before the Trial Court for claiming decree of specific performance of contract and in absence for recovery of damages of Rs. 30,000/- with interest. The respondent / plaintiff''s case is that on 06.10.1996, the respondent and the appellant entered into an agreement for sale of land bearing Khasra no. 384/7 (0.008 hectare) situated in New Market at Village Harrai, District Chhindwara. It is alleged that the appellant received advance money of Rs. 30,000/- from the respondent and sold disputed land to the respondent on the condition that if he returned the money within six months, the agreement of said plot would stand canceled. After passing of considerable time when the appellant denied execution of sale deed in favour of respondent, notice was given to the appellant by the respondent. Thereafter, the suit was filed.

In reply, appellant totally denied the averments made in the plaint. He submitted that he signed upon a blank paper which was misused by the respondent. He further sated that he executed mortgage ikrarnama. He was the tenant of the respondent shop at the rate of Rs. 400/- per month. The appellant got Rs. 30,000/- in advance for constructing a shop himself. In option, he shall vacate the shop and handed blank signed paper to the respondent. The shop of the respondent was vacated by the appellant but the respondent did not returned his blank signed paper. Therefore, the suit filed by the respondent is not maintainable.

Learned Trial Court found that the aforesaid ikrar nama (Exh. P/1) is properly proved and admissible in evidence. The appellant failed to prove that Exh. P/1 is a forged document or any cheating is committed by the respondent with the appellant. Learned Trial Curt further found that the aforesaid ikrarnama was executed as surety for the loan taken by the appellant / defendant. Therefore, learned Trial Court held that Exh. P/1 is not covered in the category of sale agreement. In fact, the appellant received 30,000/- has taken loan from the respondent which has not been paid by the appellant to the respondent therefore, the decree for Rs. 30,000/- along with 18% annual interest has been passed against the appellant/defendant.

The aforesaid order has been challenged by the appellant on the grounds that there were material contradiction between the respondent''s witnesses regarding the execution of alleged ikrarnama (Ex. P-1) which prove that Ex. P-1 is a forged document. Findings of the learned Trial Court are illegal and baseless.

The appellants prayed to set aside the impugned judgement and decree.

None present on behalf of the respondent.

Heard learned counsel for the appellant. Perused the record. This appeal is pending since long.

Under Section 60 of the Evidence Act, the documentary evidence is a primary evidence. Suit is based upon the agreement (Ex. P-1). Ramesh (PW-1) deposed that it is signed by the appellant / defendant in presence of his son Shambhudayal and other witnesss. Ramesh (PW-1) also stated that Rs. 30,000/- was paid to the appellant / defendant in the presence of those witnesses. Rajesh (PW-2) and Manubhan (PW-3) corroborated the testimony of the plaintiff / respondent.

The appellant / defendant denied the aforesaid allegations. He denied that he received Rs. 30,000/- from the respondent / plaintiff. But he admitted that he signed the stampaper (ex. P-1) on being pressurized by the respondent / plaintiff. In crossexamination, he admitted that he was not compelled or pressurized by the respondent / appellant to sign Exh. P-1 which proves that he voluntarily signed the agreement. He and his son Shambhudayal admitted that Shambhudayal also signed Exh.P-1. Both are carrying out kirana business. It cannot be presumed that without any reason, they both have voluntarily signed any document in favour of the respondent / plaintiff. They both have stated that at the time of signature (Exh. P-1) was blank. This is a forged document, the plaintiff with malafide intentions used it against the appellant.

The burden to establishing malafide is very heavy on the person, who alleges it, if it is argued that a person signing a blank paper have agreed that he agrees to all the terms which the plaintiff may put in the documents. The burden shifts to the person who had signed the papers.

Nainsukh (DW-1) and Shambhudayal (DW-2) are father and son. They are interested witness. Even then, Shambhudayal (DW-2) has not denied that his father received Rs. 30,000/- from Ramesh / respondent. He only says that he does not know about that. Thus, they failed to prove that the Exh P-1 was signed on 06.10.1996, against which report has been lodged after six months without any proper explanation. Further appellant proved that he signed on the agreement. After knowing about all the averments which were written by the respondent / plaintiff. Therefore, learned Court below properly held that the appellant is liable to pay Rs. 30,000/- to the respondent.

Aforesaid findings are based on evidence on record. No illegality or perversity is found in the impugned judgement. The learned Trial Court has awarded 18% interest per annum in favour of the respondent without any reason. Such rate of interest has not been settled between the parties at the time of execution of Exh. P-1, therefore, in place of 18% interest per annum, the respondent is entitled to receive 6% interest per annum on Rs.30,000/-. Hence, the finding regarding 18% interest per annum is set aside.

In view of the above direction, this appeal is partly allowed. No order for cost.