Surjit Singh and Others vs Rachhpal Singh and Others

Amit Rawal, J.—By this order, I intend to dispose of two Regular Second Appeal Nos. 2996 of 2009 and 2798 of 2014 as the common questions of law and facts involved in both the appeals are the same.

Civil Misc. No. 6666-C of 2014 in RSA No. 2798 of 2014

The present application has been filed for seeking impleadment of the L.Rs. of Surjit Singh, who is stated to have died on 18.6.2011.

For the reasons stated in the application, which is supported by an affidavit, the L.Rs. of Surjit Singh are permitted to be brought on record. Amended memo of parties is taken on record.

CM stands disposed of.

CM No. 12286-C of 2014 in RSA No. 2798 of 2014

The prayer in the application filed under Order 41 Rule 27 read with Section 151 CPC is to bring on record the documents, Annexure AX-1 to AX-6.

As both the appeals are being heard and decided together, therefore, no cause of action survives in the application and the same is rendered infructuous.

CM No. 6667-C of 2014 in RSA No. 2798 of 2014

The present application has been filed under Section 5 of the Limitation Act for seeking condonation of delay of 1500 days in filing the accompanying appeal.

Mr. Vikas Bahl, learned Senior Advocate assisted by Ms. Japneet Kaur, Advocate, appearing on behalf of the applicant-appellants submits that against the judgment and decree passed in Civil Suit No. 575 dated 30.7.1999, an RSA No. 2996 of 2009 has been filed and even an interim order to that effect has also been passed on 18.11.2013 and the said order has been complied as a sum of Rs. 20.00 lacs had been deposited. It is only on deposit of Rs. 20.00 lacs, the Counsel in the trial Court brought to the notice of the L.Rs. of Surjit Singh, who is stated to have died on 18.6.2011 that there is another execution application pending seeking the execution of the judgment and decree passed in Civil Suit No. 83 dated 19.4.2001 and on acquiring the knowledge, the RSA has been filed and, therefore, a delay of 1500 days in filing the appeal has occurred. He, in support of his submissions, has cited the following judgments:-

1) Pawan Kumar Vs. Surjit Kaur and Others, ;

2) Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, ; and

3) Smt. Harjit Grewal and Others Vs. Dr. Vinod Kumar Batra and Others, .

Mr. S.S. Dinarpur, learned counsel appearing on behalf of the respondent-plaintiff submits that the Lower Appellate Court has passed the judgment and decree on 5.9.2009. Surjit Singh died on 18.6.2011. For two years, no effort was made by Surjit Singh to impugn the judgment and decree and, therefore, the explanation purported to have been given in the application seeking condonation of delay is wanting reasons, much less, cogent reasons. He further submits that in all, there is a delay of two years and five months in filing the appeal. Surjit Singh refused to receive the summons of the execution application on 1.5.2010 and was proceeded ex-parte.

I have heard the learned counsel for the parties and appraised the paper book.

The Legislation in its wisdom has framed the time limit/limitation for assailing the judgment and decree and the parties cannot be permitted to seek vindication of their rights in the competent court of law and jurisdiction at their leisure and comfort. Equally, the job of the Court is to do justice and justice means substantial justice, which describes substantial rights of the parties to the lis. The Hon''ble Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, culled out certain principles for seeking the condonation of delay. The same are reproduced as under:-

"i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice,

ii) The terms "sufficient cause " should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact,

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice, vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

The present case falls within the aforementioned principles for the reasons that on 22.11.2013, the legal representatives of Surjit Singh joined the execution through counsel Shri Chandra Shekhar and the decree-holder did not object to the same and other L.Rs. were ordered to be summoned through proclamation by way of publication. It is only on acquiring the knowledge of the aforementioned execution proceedings, RSA No. 2798 of 2014 has been filed.

In view of the reasons aforementioned and as well as reasons stated in the application, which is duly supported by an affidavit, the delay of 1500 days in filing the appeal is condoned.

CM stands disposed of.

RSA Nos. 2996 of 2009 and 2798 of 2014

Both the appeals are at the instance of legal representatives of Surjit Singh-defendant.

RSA No. 2996 of 2009 has arisen out of the judgment and decree passed in Civil Suit No. 575 dated 20.7.1999 and RSA No. 2798 of 2014 from the judgment and decree passed in Civil Suit No. 83 dated 19.4.2001, whereby the agreement to sell dated 20.6.1998 in Civil Suit No. 575 of 1999 and 10.6.1999 in Civil Suit No. 83 of 2001 have been accepted by the Courts below and the appellants have been called upon to execute the same within the period prescribed on receipt of the balance sale consideration. Both the aforementioned agreements to sell pertained to the land measuring 14 kanals 3 marlas and 23 kanals 18 marlas.

In the agreement to sell dated 20.6.1998, Surjit Singh-defendant is alleged to have received earnest money of Rs. 2,15,000/- against the total sale consideration of Rs. 5,30,625/-, whereas in respect of agreement to sell dated 10.6.1999, against the total sale consideration of Rs. 9,00,000/-, received earnest money of Rs. 2,95,000/-.

In order to prove the execution of the agreements to sell, plaintiff examined Faqir Singh, one of the attesting witness and Pawan Kumar Deed Writer. The agreement to sell in Civil Suit No. 575 of 1999 contains a clause that in case the vendor does not execute the sale deed by cut off date, i.e., 19.6.1999, the agreement shall stand cancelled and the defendant shall return the entire earnest money, whereas other agreement did not contain any such clause.

In the Civil Suit No. 575 of 1999, the target date for execution of the sale deed was extended from 19.6.1999 to 17.7.1999. Prior to that, the plaintiff is stated to have served a legal notice dated 8.7.1999 (Ex. P3) calling upon the defendant to return the earnest money or execute the sale deed.

Mr. Vikas Bahl, learned Senior Counsel submits that there has been a categoric averment in the written statement that Surjit Singh-defendant, prior to the agreement to sell in question, had been obtaining loans and in that regard, some documentation in the nature of agreements to sell have been executed and there is a reference in one of agreement to sell dated 5.7.1997, whereby, Surjit Singh stated to have received a sum of Rs. 1,40,000/- and after taking into consideration an element of interest of Rs. 50,500/-, a sum of Rs. 1,90,500/-, stated to have been returned to the respondent. This fact has been admitted by the plaintiff in the replication.

The counsel further submits that since the substantial amount of earnest money had been received, there was no occasion for the respondent to put the date of one year, for execution and registration of the sale deed. In essence, keeping in view the previous act and conduct of the parties to the lis, it was not an agreement to sell, but was a loan transaction and both the Courts below have committed an illegality and perversity in not appreciating the aforementioned submissions, much less, oral and documentary evidence and, therefore, the following substantial questions of law arise for determination by this Court:-

1) Whether the findings of the Ld. Appellate Court can be sustained to the effect that the plaintiff-respondent was ready and willing to get the sale deed executed on 17.7.1999, although he got his presence marked in the Tehsil Complex on 29.7.1999 (Ex. P. 7)?

2) Whether Ld. Courts below had failed to appreciate the fact that the sole intention of the parties was to raise a loan and in order to secure the loan amount, the condition of sale of land was incorporated in the alleged agreement (Ex. P-1)?

3) Whether the Ld. Courts below have failed to appreciate the fact that a bare perusal of the terms and conditions of the alleged agreement of sale deed 20.06.1998 (Ex. P-1) would reveal that it was executed only to secure the loan amount taken by the present appellant?

4) Whether the entire evidence on the record has been misread and mis-interpreted?

5) Whether all the submissions made by the appellant have been properly dealt with and taken into account by the Ld. Courts below?

Mr. S.S. Dinarpur, learned counsel appearing on behalf of the respondent-plaintiff in both the appeals submits that during the course of the proceedings before the trial Court at the instance of the defendant, an Handwriting Expert was allowed to compare the admitted signatures of Surjit Singh with the disputed signatures on the agreement to sell and a report was also prepared but the same had not been proved as the contents of the report were against defendant Surjit Singh. He further submits that in the written statement, a categoric stand has been taken that both the agreements to sell were an act of fraud and nowhere it has been stated that they pertained to loan transactions and both the Courts below, by relying upon the statements of PW-1 Faqir Singh, attesting witness, and PW-3 Pawan Kumar, Scribe, found that it was, in fact, an agreement to sell and rightly decreed the suit for specific performance.

There was no delay on the part of the plaintiff in seeking the specific performance of the agreement to sell as both the suits have been filed immediately on refusal on the part of Surjit Singh. He further submits that the contents of the legal notice dated 8.7.1999 (Ex. P3) cannot be read against the plaintiff as in one breath, two requests were made, one for return of the earnest money and second for execution of the sale deed and, therefore, the readiness and willingness cannot be said to be conspicuously wanting. He further submits that Surjit Singh in cross-examination denied that it was an agreement to sell. The defendant has not discharged the onus, with regard to the averments in the written statement, therefore, it could not be said to have been shifted upon the plaintiff to prove otherwise and, thus, no substantial question of law arises for determination by this Court and the appeals deserve dismissal.

I have heard the learned counsel for the parties and appraised the paper book with their able assistance.

As regard the facts, oral and documentary evidence in Civil Suit No. 575 of 1999, the legal notice (Ex. P3) preceding to the filing of the Civil Suit No. 575 of 1999 reveals that the respondent-plaintiff had called upon the defendant to return the earnest money and also in case he does not return the money, it was requested to execute the sale deed. Even the agreements to sell also contain a clause that in case the defendant does not execute the sale deed on 19.6.1999, the earnest money would be refunded. In normal agreement to sell, such type of conditions are incorporated and the condition which is in practice is that either the vendor would pay the double the amount of earnest money or the vendee would be entitled to seek the specific performance of the agreement to sell through competent court of law.

The plaintiff though did not plead in the plaint with regard to the factum of the agreement to sell being entered with the defendant envisaging the same terms and conditions, but agreements to sell were treated by the parties to the lis as loan transactions, inasmuch as, that the sum received by the defendant was agreed to have been returned including the element of interest. This fact has not been denied in the replication. Even the aforementioned facts, in my view, have not been noticed by the trial Court while decreeing Civil Suit No. 575 of 1999.

PW-3 Pawan Kumar Deed Writer, in cross-examination, admitted that defendant Surjit Singh was required to return the amount of earnest money to the tune of Rs. 2,15,000/- to the plaintiff on or before 19.6.1999 and even plaintiff himself admitted in examination-in-chief that if the aforementioned amount was not returned till 19.6.1999, then the agreement was treated to be cancelled. The aforementioned facts lead to irresistible conclusion, that it was not an agreement with an intention to sell the piece of land mentioned therein, but a loan transaction.

In view of the aforementioned facts, in my view, both the Courts below have not appreciated the facts and circumstances and, therefore, committed an illegality and perversity and, thus, the questions of law, as noticed above, are answered in favour of the appellant-defendant and against the respondent-plaintiff.

Civil Suit No. 83 of 2001 involves the agreement to sell dated 10.6.1999, where, the target date was 9.6.2000. The plaintiff filed the suit on 19.4.2001. Earnest money of Rs. 2,95,000/- against total sale consideration of Rs. 9,00,000/- had been paid. Both the witnesses, i.e., PW-1 Faqir Singh, attesting witness, and PW-3 Pawan Kumar Deed Writer unequivocally admitted the execution of the agreement to sell. The clauses in the agreement to sell are different to the one in the other case. The appellant-defendant has not led any evidence to belie the signatures on the agreement to sell. There is no averment that on earlier occasion, the agreement to sell for taking the loan was executed. The Courts below have found that the agreement to sell had duly been proved, in essence executed between plaintiff and the defendant. In the evidence, the defendant has nowhere denied the signatures on agreement to sell (Ex. P1). There is a categoric averment in the plaint that the plaintiff was ready and willing to perform his part of the agreement.

In my view, the appellant-defendant has miserably failed to belie the averments made in the plaint and proved the stand taken in the written statement. Since the appellant-defendant has denied the execution of the agreement to sell, he cannot be permitted to take the plea of readiness and willingness. In order to led support to the aforementioned facts, I rely upon the judgment rendered by this Court in Lal Chand Versus Tek Chand, 2013 (5) RCR (Civil) 104 and Jora Singh Vs. Lakhwinder Kumar and Others, .

It is also settled law that the Lower Appellate Court, while agreeing with the findings rendered by the trial Court, has not to give detailed reasons. The defendant has failed to lead any iota of evidence to prove that it was a loan transaction and not agreement to sell. Both the Courts below have rendered a finding of fact and law, based on the appreciation of oral and documentary evidence.

In my view, no substantial question of law arises in RSA No. 2798 of 2014 arising out of Civil Suit No. 83 dated 19.4.2001 and there is no illegality and perversity in the judgment and decree and the same is dismissed and Regular Second Appeal No. 2996 of 2009 arising out of Civil Suit No. 575 dated 30.7.1999 is allowed.