Dr. Subhash Monga v. Joginder Singh

This is second regular appeal preferred by the plaintiff- appellant against the judgment dated 25.5.2010 passed by Sh. A.S. Narang, Additional District Judge, Ambala, vide which the appeal preferred by the plaintiff-appellant against the judgment dated

28.1.2010 passed by Sh. Sudeep Goel, Additional Civil Judge (Senior Division), Naraingarh, was dismissed. Plaintiffs filed suit for possession by way of specific performance of agreement dated 10.6.1999. It is alleged that sale consideration was fixed at Rs.3,00,000/- out of which a sum of Rs.50,000/- was paid to the defendants as earnest money against receipt. It was agreed to execute the sale deed after redeeming the R.S.A. No. 2888 of 2010 -2- land upto 15.12.2003. Plaintiffs had been ready and willing to perform their part of contract and legal notice dated 13.5.2003 for specific performance was issued, but to no effect. Hence the suit. The suit was contested by the defendants taking preliminary objections qua concealment of facts and that false and frivolous suit has been filed. On merits, it is pleaded that agreement is a forged and fabricated document. Plaintiffs used to give money to defendants and when in the month of June 1999, defendants borrowed a sum of Rs.10,000/- from the plaintiffs, blank papers were got signed which had been used to make this forged and fabricated documents. Defendants in the month of March 2003 went to plaintiff No.2 to return his money, but plaintiff No.2 handed over a long slip of fictitious amount of Rs.4,52,687/- and threatened that he would use these blank papers to convert the same to an agreement. Plaintiffs served notice upon the defendants, which was duly replied giving detail that no agreement was executed. Replication was filed controverting the contents of written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:-

1. Whether defendants executed an agreement to sell in favour of plaintiffs? OPP

2. Whether plaintiff was ready and willing to perform his part of contract? OPP

3. Whether the plaintiff is entitled to decree for specific performance or agreement to sell under question? OPP R.S.A. No. 2888 of 2010 -3-

4. Whether plaintiff is entitled to decree for permanent injunction as prayed for? OPP

5. Whether suit is not maintainable? OPP

6. Whether suit is barred under order 2 Rule 2 CPC?

7. Relief. Plaintiffs examined PW-1 Harikant Sharma, PW-2 Anil Kumar Mittal, PW-3 Meena Rani, PW-4 Khushi Ram, PW-5 Ranjit Singh, PW-6Dr. Subhash Monga, PW-7 Jassi Anand and closed the evidence after tendering certain documents. In rebuttal, Joginder Singh - defendant No.1 himself appeared as DW-1 and also examined DW-2 Atma Singh and tendered certain documents. Learned trial Court has taken issues No. 1 to 4 together and returned the finding that agreement was executed by the defendants but it was a security of the money advance to Joginder Singh – defendant No. 1 by the plaintiffs. Issues No. 5 and 6 were decided in favour of the plaintiffs and against the defendants. Consequently, the suit of the plaintiffs for recovery of earnest money alongwith interest @ 9% from the date of execution of receipt till the date of decision and further interest @6% from the date of decision till actual realization, was decreed. Feeling dissatisfied with the above said judgment dated

28.1.2010, passed by Sh. Sudeep Goel, Additional Civil Judge, ( Senior Division), Naraingarh, the plaintiffs filed the Ist appeal, which was heard by Sh.A.S. Narang, Additional District Judge, Ambala and was dismissed vide judgment dated 25.5.2010. Feeling dissatisfied with the judgments dated 25.5.2010 and R.S.A. No. 2888 of 2010 -4-

28.1.2010, referred to above, the present regular second appeal has been filed by the plaintiff-appellant. The appellant in para No. 14 of the grounds of appeal has mentioned that following main law points are involved in the present appeal:- i) Whether once the agreement dated 10.6.1999 (Ex. P3) is found to have been executed between the parties, then the appellant-plaintiff is entitled the relief of specific performance as a natural corollary? ii) Whether the impugned judgments and decrees passed by the learned courts below are illegal, bad, wrong, erroneous, null and void, contrary to the evidence on record oral as well as documentary against the true facts and legal import of the case and thus liable to be set aside? iii)Whether the evidence available on the record have been totally misread, misinterpreted and misconstrued by the learned Courts below while passing the impugned judgments/decrees and therefore, the same are liable to be set aside? iv)Whether the grave and manifest injustice has been caused to the appellants-defendants? Learned counsel for the appellant has submitted that agreement in question has been proved. There is concurrent finding of both the Courts below that an amount of Rs.50,000/- was received by Joginder Singh – defendant, from the plaintiffs at the time of execution of agreement. It is submitted that in case of immovable R.S.A. No. 2888 of 2010 -5- property, the relief of specific performance is the normal relief. Both the Courts below have returned a wrong finding that agreement was executed to secure the loan. Mere fact that the period of 3 ½ years was mentioned, is not a ground to arrive at the conclusion that agreement was never intended to be acted upon. The entry in the register of Deed Writer was not made as defendant-Joginder Singh wanted to conceal the transaction. So, both the Courts below have misinterpreted and misread the evidence on the file to arrive at the conclusion that it was a money transaction and that the agreement was not intended to be acted upon. These findings have caused grave and manifest injustice to the appellant. To support his contentions, learned counsel for the appellant has relied upon the authorities reported as Jeet Singh vs. Bahadur Singh 2010 (1) Civil Court Cases 114 (P&H) and Krishan Kumar Verma vs. Narender Prabhakar 2009 (4) Law Herald (P&H) 2814. I have carefully considered the submissions made by counsel for the appellant and have also gone through the file of the case. Both the Courts below have given a concurrent finding that agreement was executed to secure the amount of plaintiffs and was never intended to be acted upon. No doubt the normal relief in case of agreement to sell in respect of immovable property should be the decree of specific performance, but the Parliament in its wisdom has given power to the Courts not to grant the relief of specific performance, by enacting Section 20 of the Specific Relief Act. Both the Courts below have exercised the discretion vested in it under Section 20 of the Specific Relief Act. The said discretion is based R.S.A. No. 2888 of 2010 -6- upon sound reasoning. The finding of fact recorded by both the Courts below that agreement was never meant to be acted upon and was executed to secure the loan, cannot be interfered in the second appeal. So far as authority in Jeet Singh's case (Supra), is concerned, that authority is distinguishable to the facts of the present case. There was no dispute in the said case that agreement has been executed to secure the loan and not meant to be acted upon. The authority in Krishan Kumar Verma's case (Supra), is also distinguishable to the facts of the present case on the same grounds. However, in both these cases, it has been held that finding of fact recorded by both the Courts below should not be interfered by the High Court unless the judgment of both the Courts below are perverse or against the law. So, in that context, both these judgments are against the appellant. Learned counsel for the appellant could not point out how both the Courts below have misinterpreted and misread the evidence on the file. The agreement was not entered into the register of Deed Writer, although the same was scribed by a Deed Writer. The abnormal period of 3 ½ years for executing the sale deed, also proved the case of the defendants that agreement was never meant to be acted upon and was merely to secure the loan. It cannot be said that by passing the judgment of both the Courts below, injustice has been caused to the plaintiffs. Whole of their money alongwith interest has been ordered to be refunded. So, in view of above discussion, I have no hesitation to hold R.S.A. No. 2888 of 2010 -7- that no question of law, much less the substantial question of law, has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed.

4.8.2010 ( K.C. Puri ) Judge