Som Masih vs Naresh Kumar

Rakesh Garg, J.—This is defendant''s second appeal challenging the judgment and decree of the lower Appellate Court dated 12.03.2012 whereby the appeal of the plaintiff-respondent No. 1 against the judgment and decree dated 6.2.2010 of the trial Court in Civil Suit No. 225 of 2004 was accepted and suit of the plaintiff-respondent No. 1 was decreed for specific performance of the agreement to sell in question dated 7.4.2003 modifying the decree of the trial Court, whereby, suit was partly decreed for the alternative relief of recovery of earnest amount of Rs. 65,000/-.

As per the averments made in the civil suit, appellant-defendant executed an agreement to sell dated 7.4.2003 in favour of respondent No. 1/plaintiff for selling the suit land and received a sum of Rs. 65,000/- as earnest money from him. The balance sale price was to be paid at the time of execution of the sale deed on or before 7.10.2004. According to the plaintiff-respondent No. 1, he always remained ready and willing to perform his part of contract. However, appellant-defendant failed to turn up on the stipulated date and had mortgaged some part of the suit land with proforma respondent No. 2 after execution of the agreement in question in an illegal manner and thus, the plaintiff-respondent filed the instant suit seeking specific performance of the agreement to sell in question.

The suit was contested by the appellant raising various grounds. According to him, he had received an amount of Rs. 65,000/- from the plaintiff-respondent as loan on interest, whereas, plaintiff-respondent obtained his signatures on blank papers and prepared the agreement in question and the same is a forged document. It was further stated by the appellant that he was ready to repay the amount of Rs. 65,000/-.

Proforma respondent No. 2 filed separate written statement stating that the suit land was mortgaged by the appellant in its favour and respondent No. 2 has first charge over the suit property to the extent of loan amount.

Replication was filed by the plaintiff-respondent No. 1 thereby denying all the averments as made in the written statement and reiterating the facts as stated in the plaint.

On the basis of the pleadings of the parties, following issues were framed:-

Whether defendant No. 1 entered into agreement to sell dated 7.4.2003 with plaintiff? OPP

Whether defendant No. 1 received Rs. 65,000/- as earnest money out of Rs. 80,000/- on 7.4.2003? OPP

Whether defendant No. 1 also agreed to get sale deed executed in favour of plaintiff on or before 7.10.2004? OPP

Whether defendant No. 1 failed to perform his part of contract? OPP

Whether suit of plaintiff is not maintainable? OPD

Relief.

In support of their case, parties led evidence.

After hearing learned counsel for the parties and considering the evidence on record, the trial Court partly decreed the suit of the plaintiff-respondent for alternative relief of recovery of earnest money of Rs. 65,000/-.

While decreeing the suit, the trial Court held that the due execution of the agreement to sell in question stood proved and even appellant has not denied receiving of amount of Rs. 65,000/- from the plaintiff-respondent.

Defendant-appellant did not challenge the aforesaid judgment and decree of the trial Court. Thus, findings of the trial Court qua execution of agreement became final qua him. However, plaintiff-respondent filed an appeal before the First Appellate Court seeking the relief of specific performance of the agreement to sell in question.

While decreeing the suit, lower Appellate Court upheld the findings of the trial Court with regard to execution of the agreement to sell in question, further observing that the appellant has failed to prove on record that the agreement to sell was forged and fabricated document and thus, there was no reason to decline the relief of specific performance in favour of the plaintiff-respondent. While observing so, lower Appellate Court relied upon the judgments in the cases of Azhar Sultana vs. B. Rajamani and others, 2009 (2) RCR (Civil) 123, Anokh Devi and Others Vs. Trilok Singh and Others, and other judgments, as noticed, by the lower Appellate Court.

Judgment and decree of the lower Appellate Court is under challenge in this appeal, at the instance of the defendant.

In the grounds of appeal, appellant has submitted that following substantial questions of law arise in this appeal:-

A) Whether the admission of the plaintiff himself proved that the alleged agreement to sell was got signed just as a security of the loan?

B) Whether the impugned judgment and decree dated 12.3.2012 suffers from perversity of facts?

C) Whether the impugned judgment passed by the learned Lower Appellate Court is liable to be set aside.

However, on 08.08.2012, this Court passed the following order after noticing the contentions raised on behalf of the appellant:-

At the outset, learned counsel for the appellant states that the appellant is willing to amicably settle the matter with the plaintiff-respondent by paying an amount of Rs. 1,28,000/-.

Notice of motion for 16.1.2013 so as to find out as to whether the plaintiff is willing to accept the said amount as full and final settlement of his claim.

On 24.02.2014, counsel appearing on behalf of the plaintiff-respondent informed this Court that there was no chance of amicable settlement between the parties.

I have heard learned counsel for the appellant on merits of the case and perused the impugned judgment and decree of the lower Appellate Court as well as judgment and decree of the trial Court.

Trial Court on appreciation of evidence held that the agreement to sell in question stood proved in favour of the plaintiff-respondent. Even the appellant admitted that he received a sum of Rs. 65,000/- from the plaintiff-respondent and aforesaid findings on issues No. 1 and 2 were never challenged by the appellant. In fact, the learned counsel for the appellant has not disputed the law as laid down by Hon''ble the Supreme Court in the judgments as relied by the lower Appellate Court, wherein, it has been held that grant of decree for specific performance is ordinary rule and its denial should be only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.

In the facts and circumstances of the case, appellant has not been able to point out that plaintiff-respondent was not willing to perform his part of the contract. In fact, no such argument has been raised. Even appellant could not establish any equity in his favour.

Learned counsel for the appellant has made an attempt to argue that the grant of decree for specific performance of agreement to sell will cause hardship to the appellant. However, the said argument is liable to be rejected on the ground that no such hardship was pleaded by the appellant in his pleadings and in fact, false plea of forging of document in question by the plaintiff-respondent was taken.

Thus, this Court finds no perversity in the judgment and decree of the lower Appellate Court.

No substantial questions of law, as raised in the grounds of appeal, arise in this appeal.

No other argument was raised.

Dismissed.