Sukhwinder Singh vs Kabal Singh

M. Jeyapaul, J.—The unsuccessful defendant before both the Courts below has preferred the present appeal.

It is the contention of the plaintiff that the defendant who is the owner of the subject property agreed to sell the same for the total consideration of Rs. 1,98,000/- and executed the agreement for sale on 28.10.2005, after receiving earnest money of Rs. 1,70,000/- in cash. Though the defendant agreed to execute and register the sale deed in favour of the plaintiff on 27.10.2006 on receipt of the balance sale consideration, he failed to come to the Registrar''s office on 30.10.2006, 27.10.2006 to 29.10.2006 were holidays and, therefore, the plaintiff was present in the Registrar''s office with balance sale consideration but the defendant did not turn up.

The defendant filed written statement stating that the agreement for sale was a forged and fabricated document. The plaintiff was doing commission agency business. A sum of Rs. 26,229/- was due and payable by the defendant. The defendant sold all crops through commission agency run by the plaintiff. The plaintiff did not render the account. As the defendant stopped dealing with the commission agency run by the plaintiff from the year 2006, the plaintiff has fabricated the agreement for sale.

Both the Courts below having evaluated the evidence on record come to the conclusion that the agreement for sale was in fact executed by the defendant in favour of the plaintiff after receiving earnest money of Rs. 1,70,000/-. The plaintiff also was ready and willing to perform his part of the contract but the defendant did not turn up for registration of the sale deed as agreed. Both the Courts below held that the plaintiff is entitled to a decree for specific performance.

The learned counsel appearing for the appellant/defendant would vehemently submit that the Courts below failed to consider the admission of the plaintiff that he was dealing in commission agency business. Some correction is found in the agreement for sale produced by the plaintiff. The Courts below had not properly exercised its discretion to grant the relief for specific performance of the agreement for sale, its contended.

The stamp vender who sold stamp papers in the name of the defendant for execution of the agreement for sale and the witness to the agreement for sale have deposed that the agreement for sale was in fact executed by the defendant in favour of the plaintiff having received the earnest money of Rs. 1,70,000/- out of the total consideration of Rs. 1,98,000/- fixed under the agreement for sale. In my view, the Courts below have rightly held based on the evidence on record that the agreement for sale in fact was executed by the defendant in favour of the plaintiff.

Of course, there is some correction in the agreement for sale, If the document was fabricated correction in the document would not be reflected. A fresh document would have been created by the person who fabricated the document.

The plaintiff had not admitted that he was running the commission agency business. It was his son who was engaged in commission agency business. Both the Courts have rejected the contention of the defendant that the subject agreement for sale was fabricated for the dues payable by the defendant in the dealing with the commission agency run by the plaintiff.

The plaintiff has established by examining the Clerk from the Registrar''s office that he was, in fact, present on 30.10.2006 for registration of the sale deed. Major part of the sale consideration was made by the plaintiff to the defendant. It is not the case of the defendant that the plaintiff had no resources to mobilise the balance of sale consideration. It has been demonstrated that the plaintiff was ready and willing to perform his part of the contract.

The agreement was executed on 28.10.2005. The sale deed was proposed to be executed on 27.10.2006. The defendant has come out with a totally false plea that no agreement was executed by him in favour of the plaintiff. Further, nothing has been shown that it was an unjust transaction and, therefore, the discretion should be exercised not in favour of the plaintiff.

The learned counsel appearing for the appellant/defendant cited a decision of the Hon''ble Supreme Court in Tejram Vs. Patirambhau, The Hon''ble Supreme Court in the above case which had arisen under the Specific Relief Act 1963 chose to direct the appellant to return the amount parted with by the respondent even without interest. That was a case where on facts it was found that the document projected by the plaintiff was not an agreement for sale. Such an agreement came into existence towards the loan amount received by the defendant from the plaintiff who was a money lender. The conduct of the plaintiff who was a money lender in that case was found to be doubtful. Under such circumstances the amount received from the money lender by the defendant therein was directed to be returned. The fact situation in the instant case is quite distinguishable.

I find that the Courts below have rightly evaluated the evidence on record and come to a conclusion that the plaintiff is entitled to a decree for specific performance of the agreement for sale. No substantial question of law has arisen for determination. Therefore, the appeal stands dismissed.