Shri. Amar Nath and Another vs Harish Kumar

L.N. Mittal, J.—Plaintiffs Amar Nath and his wife Janak Rani having been non-suited by the courts below have filed this second appeal. Plaintiffs filed suit for possession of the suit property by specific performance of agreement to sell dated 12.2.1999 alleging that the defendant agreed to sell suit property to the plaintiff for Rs. 70,000/-and received Rs. 55,000/-as earnest money and executed the aforesaid agreement and also delivered possession of the suit property to the plaintiffs and took the same on rent vide rent note of even date. Plaintiffs always remained ready and willing to perform their part of the contract but defendant committed breach thereof.

Defendant controverted the plaint averments and denied having agreed to sell the suit property to the plaintiffs. Defendant, however, pleaded that he had borrowed Rs. 50,000/-as loan from plaintiff No. 1 and his son Pushpinder Bansal to be repaid with interest @ 2.25% per month. Signatures of defendant were obtained on two blank stamp papers of Rs. 15/-each and four white blank papers and three cheques as security. The defendant had been paying interest every month to the plaintiffs and also repaid the principal loan amount of Rs. 50,000/-on 25.7.2000. The blank signed papers were not returned to him. The plaintiffs have fabricated the impugned agreement on blank stamp papers. Various other pleas were also raised.

Both the courts below have dismissed the plaintiffs'' suit necessitating filing of the instant second appeal.

I have heard learned counsel for the parties and perused the case file.

Following substantial question of law arises for adjudication in this second appeal:

Whether the finding of the courts below against the plaintiff regarding impugned agreement is based on misreading and misappreciation of evidence and is perverse and illegal ?

On 09.4.2010, following motion order was passed in the appeal:

RSA No. 1637 of 2009

Learned counsel for the appellants contended that agreement to sell dated 12.02.2009 comprising two sheets has been signed by defendant at five places. The defendant has admitted the said signatures but alleged that the same were obtained on blank stamp papers. Learned counsel for the appellants contended that the defendant admitted endorsement in his own handwriting on the agreement regarding receipt of Rs. 55,000/-(which was paid as earnest money) and therefore, defendant''s version is that his signatures were obtained on blank papers is falsified. It was also contended that even stamp papers for the agreement were purchased by the defendant himself. It was also contended that defendant was working as Typist in Courts of Patiala for 15 years before the agreement. It is contended that even original sale deed of the suit property was given by the defendant to the plaintiffs at the time of agreement.

Further, learned counsel for the appellants also contended that the Courts below have misread the evidence. Reference was made to judgment of Lower Appellate Court wherein it has been observed in paragraph 11 that Devinder Dhaman and Harnek Singh (attesting witnesses of the agreement) have appeared and filed their affidavits Ex. D-5 and Ex. D-6 affirming that their signatures were obtained by plaintiff No. 1 by playing fraud and the agreement was not executed in their presence, but in fact Devinder Dhaman and Harnek Singh have not appeared in the witness box at all. On the other hand, affidavits Ex. D-5 and Ex. D-6 were furnished by Varinder Kumar (read brother of the defendant) and Ravinder Kumar respectively affirming that the amount of Rs. 50,000/-allegedly borrowed by the defendant was repaid to plaintiff No. 1.

Notice of motion for 21.7.2010.

Records of the Lower Courts be also requisitioned.

In addition to the contentions noticed in the motion order, counsel for the appellants also rebutted the contentions raised by counsel for the respondent-defendant.

Counsel for the defendant-respondent contended that plaintiff No. 1 and his son, who are both Advocates, are professional money lenders and they obtained signatures of all borrowers on blank stamp papers and blank plain papers and fabricate such documents. Reference was made to receipt Ex. D1 admittedly issued by plaintiff No. 1 to one Neelam Bhandari regarding obtaining of similar blank signed papers from her at the time of advancing the loan. Counsel for the respondent also referred to statements of Varinder Kumar DW2, Ravinder Kumar DW3 and Neelam Bhandari DW4. Reference was also made to statement of plaintiff No. 1 himself.

On the other hand, counsel for appellants referred to cross-examination of the defendant himself as well as cross-examination of Neelam Bhandari DW4.

I have carefully considered the rival contentions.

Defendant has admitted his signatures at five places on the impugned agreement consisting of two sheets. Defendant has also admitted that he had written in his own hand on the agreement about receipt of Rs. 55,000/-(mentioned to be Rs. 50,000/-in the written statement) on the impugned agreement. Consequently, the plea of defendant that he had signed the blank stamp papers and blank papers cannot be accepted. It may be mentioned that defendant is a Typist in the Court premises at Patiala and had been doing this work for 15 years prior to execution of the impugned agreement. Thus, the defendant was well aware of the legal consequences of signing blank stamp papers and plain papers. The defendant alleged that three cheques were also obtained by the plaintiff at the time of advancing loan on 12.2.1999, but in the witness box, the defendant admitted that even cheque book had been issued to him on 5.8.1999 i.e. six months after the execution of the impugned agreement and therefore, the question of issuing any cheques by the defendant at the time of allegedly taking loan from the plaintiffs in February, 1999 did not arise and the defendant took a false plea in this regard.

Lower appellate court has also misread the evidence inasmuch as the writings allegedly given by Devinder Dhaman and Harnek Singh attesting witnesses of the agreement has been referred to as their affidavits, although the same are not affidavits. Moreover, said witnesses have not been examined by the defendant and consequently, the said writings which have been referred to as affidavits could not be taken into consideration. Non-examination of the said attesting witnesses by the plaintiffs has been explained by counsel for the appellants by submitting that defendant had got registered criminal case not only against the plaintiffs but also against the said witnesses Devinder Dhaman and Harnek Singh who had to apply for anticipatory bail and therefore, they were reluctant to appear as witnesses on behalf of the plaintiffs. The explanation sounds plausible and satisfactory. On the other hand, if the said two witnesses gave alleged writings Exs. D5 and D6, nothing prevented the defendant from examining them as witnesses so as to give opportunity to the plaintiffs for their cross-examination. There is, however, no explanation for non-examination of the said witnesses by the defendant. Consequently, their alleged writings Exs. D5 and D6 cannot be taken into consideration.

As regards receipt Ex. D1 given by plaintiff No. 1 to Neelam Bhandari, the same has been duly explained by cross-examination of Neelam Bhandari herself. The said document was obtained while criminal case had been lodged against the plaintiffs by defendant and it is submitted by counsel for the appellants that plaintiffs'' application for anticipatory bail had been dismissed. Neelam Bhandari has inter alia admitted in her cross-examination that she had told the plaintiff No. 1 while obtaining receipt Ex. D1 that plaintiff No. 1 was already in trouble on account of criminal case lodged by the defendant and if defendant No. 1 did not execute the document, she would put him in more trouble. Neelam Bhandari also admitted that she herself got this receipt typed on her dictation and plaintiff No. 1 signed the same. In these circumstances, much importance cannot be attached to receipt Ex. D1. On the contrary, along with agreement Ex. P1, the defendant also executed rent note Ex. P3 on the same day whereby defendant took the disputed house on rent from the plaintiffs. There is also receipt Ex. P4 regarding payment of rent for two months since 12.3.1999 to 12.5.1999 by the defendant to the plaintiffs. These documents have also been admitted by the defendant. From the cross-examination of the defendant also, his version has been fully exposed and impeached. He has also admitted that he had lodged criminal case against the plaintiffs and also made complaint against plaintiff No. 1 and his son to the Bar Council and the said complaint was dismissed by the Bar Council and after investigation, criminal case was recommended to be cancelled.

For the reasons aforesaid, I find that finding of the courts below negativing the claim of the plaintiffs is based on complete misreading and misappreciation of evidence and is perverse and illegal.

Consequently, the substantial question of law arising in this second appeal as noticed hereinbefore is answered in favour of the plaintiffs/appellants for the reasons already recorded hereinbefore. Resultantly, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside. Suit filed by the plaintiffs/appellants is decreed with costs throughout for possession of the suit property by specific performance of the impugned agreement to sell on payment of balance amount of Rs. 15,000/-.