Hoshyar Singh v. Bijender & Ors.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R. M. Singh, Advocate for the appellant. Mr. Rakesh Nehra, Advocate for the respondents. L. N. MITTAL, J (ORAL) This is second appeal by plaintiff-Hoshyar Singh, who has been partly successful and partly unsuccessful in both the Courts below. Appellant filed suit against Musaddi (since deceased and represented by respondents as his legal representatives) for specific performance of the agreement to sell. The plaintiff alleged that defendant vide agreement dated 07.09.1994 agreed to sell 54 kanals 12 marlas land to the plaintiff for total consideration of Rs.1,50,000/- and received Rs.20,000/- as earnest money from the plaintiff. Possession of the suit land was handedover to the plaintiff. Sale deed was to be executed upto 30.07.1997. The plaintiff always remained ready and willing to perform his part of the contract, but the defendant committed breach thereof. Even notice dated 14.01.1998 served by the plaintiff, did not evoke the desired response from the defendant. The plaintiff also alleged that he learnt later on that the defendant was now owner of only 27 kanals 12 marlas land. RSA No.3902 of 2007 -2- Accordingly, the plaintiff sought specific performance of the agreement regarding 27 kanals 12 marlas land on payment of proportionate sale price. The defendant resisted the suit and denied the plaint allegations. The defendant denied that he agreed to sell the suit land to plaintiff and received any earnest money and executed any agreement. The defendant pleaded that plaintiff's son Kuldip Singh is a practicing Advocate at Bhiwani and he was engaged by the defendant in an appeal pending before the Commissioner, Hissar. During pendency of the appeal, Mr. Kuldip Singh used to obtain signatures of defendant and his son on blank papers for being used in the said appeal and the impugned agreement has thus been obtained by fraud. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Bhiwani vide judgment and decree dated 23.08.2005, instead of granting relief of specific performance of the agreement to the plaintiff, decreed the plaintiff's suit for recovery of Rs.20,000/- (the amount of earnest money) with interest at the rate of 9% per annum from the date of filing of the suit till date of recovery. In first appeal preferred by the plaintiff, learned Additional District Judge, Fast Track Court, Bhiwani vide judgment and decree dated 20.07.2007 modified the judgment and decree of the trial Court by enhancing the rate of interest from 9% per annum to 15% per annum and maintained the judgment and decree of the trial Court in other respects. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. RSA No.3902 of 2007 -3- Learned counsel for the appellant vehemently contended that execution of the impugned agreement has been held to be proved by the Courts below and plea of fraud raised by the defendant has not been found to be proved and, therefore, there was no ground for declining the relief of specific performance of the agreement. I have carefully considered the aforesaid contention, but find no merit therein, although the contention on first blush appears to be very forceful. It has been established on record that plaintiff's son Kuldip Singh, Advocate had been engaged as counsel by the defendant in some appeal pending before Commissioner, Hissar and it was during pendency of the said appeal that the impugned agreement was obtained. The defendant may not have been able to establish fully his plea of fraud, but the Courts can't be oblivious of the practice that Advocates do obtain signatures of the litigants even on blank papers. About 7 acres of land was allegedly agreed to be sold for petty amount of Rs.1,50,000/- only. It is correct that mere inadequacy of sale consideration may not be a ground to decline the relief of specific performance. However, in the instant case, there is very significant circumstance that plaintiff's son was counsel for defendant in some appeal and during pendency thereof, the impugned agreement was allegedly executed by the defendant. The plaintiff has not even examined his son Kuldip Singh, Advocate as witness to rebut the plea of the defendant. Therefore, adverse inference arises against the plaintiff. Keeping in view all these circumstances, the discretion exercised by both the Courts below in declining the relief of specific performance to the plaintiff-appellant is not required to be interfered RSA No.3902 of 2007 -4- with in second appeal. Relief of specific performance is discretionary relief and the Courts below have exercised discretion which cannot be said to be perverse or illegal. However, it has to be noticed that interest has been granted by the Courts below on the amount of earnest money from the date of filing of the suit, although interest should have been awarded from the date of agreement, when the said amount of earnest money was paid by the plaintiff to the defendant. There is no ground for declining the relief of interest to the plaintiff for the intervening period from the date of agreement till filing of the suit. Even counsel for respondents could not advance any meaningful argument on this aspect. Judgments and decrees of the Courts below, therefore, suffer from this illegality and require interference to this extent in second appeal as substantial question of law in this regard arises for determination in the instant second appeal. For the reasons aforesaid, the instant second appeal is allowed partly and judgments and decrees of the Courts below are modified to the extent that the plaintiff shall be entitled to interest at the rate of 15% per annum on the decretal amount of Rs.20,000/- with effect from 07.09.1994, the date of agreement till, recovery. Except modification regarding the period of interest as aforesaid, the appeal stands dismissed.

04.08.2010. A. Kaundal ( L. N. MITTAL ) JUDGE