Pawan Kumar v. VINOD K. SHARMA, J.(ORAL)

condoning the delay of 21 days in filing the appeal is allowed. RSA No. 477 of 2010 This regular second appeal is directed against the judgment and decree dated 10.09.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for specific performance of agreement to sell, stands decreed. The plaintiff/respondents filed a suit for specific performance of agreement to sell dated 31.05.2001 qua the shop, which was owned by the appellant. The shop was in possession of the tenant. The sale consideration fixed was Rs.3,50,000/- (Rupees three lac and fifty thousand only), out of which a sum of Rs.3,00,000/- (Rupees three lac only) was paid as earnest money. The date fixed for execution of the sale deed was fixed as on or before 30.11.2001. It was the case of the R.S.A. No. 477 of 2010 (O&M) -2- plaintiff/respondents, that the office of the Sub Registrar was closed on

30.11.2001. Whereas, 1.12.2001 and 2.12.2001 were holidays. The plaintiffs went to the Registrar's office for execution of sale deed with consideration amount, however, the defendant/appellant failed to come present. On the pleadings referred to above, it was pleaded that plaintiff/respondents were always willing and still ready and willing to perform their part of contract. The suit was contested by the defendant/appellant, by denying the execution of the agreement, by asserting it to be a forged and fabricated document. The case set up by the defendant/appellant was, that the price of shop in dispute was more than Rs.8,00,000/- (Rupees eight lac only), therefore, it could not be believed that the shop would be agreed to be sold for Rs.3,50,000/- (Rupees three lac and fifty thousand only). The learned Courts below, on appreciation of evidence, recorded a concurrent finding of fact, that the plaintiff/respondents were entitled to decree of specific performance of agreement to sell dated

31.5.2001, as per the details given in the headnote of the plaint. That the defendant/appellant has received a sum of Rs.3,00,000/- (Rupees three lac only) as earnest money, vide agreement to sell dated

31.5.2001. The learned Courts below further held, that the plaintiff/respondents were always and still ready and willing to perform their part of the contract. The plea of the defendant/appellant, that agreement was forged and fabricated document, was rejected for not examining any hand-writing expert, the execution was proved by plaintiff/respondents. The learned Courts below also recorded a concurrent finding of fact, that though the price of the shop was admittedly between Rs.8,00,00/- (Rupees eight lac only) to R.S.A. No. 477 of 2010 (O&M) -3- Rs.10,00,000/- (Rupees ten lac only), but as the shop was in the possession of the tenant, it could not fetch more than the price agreed between the parties. The other issues were also decided against the defendant and consequently, the suit was decreed. Ms. Ravinder Kaur Manaise, learned counsel, appearing on behalf of the appellant, contends that this appeal raises the following substantial questions of law: - “1. Whether the judgment and decree passed by the learned Courts below is outcome of mis- reading of evidence and, therefore, perverse?

2. Whether the learned Courts below in the facts, circumstances and evidence on record, could exercise discretion in favour of the plaintiff/respondents?” In support of the substantial questions of law, referred to above, the learned counsel for the appellant vehemently contended, that the learned Courts below have failed to notice that a positive stand was taken by the defendant/appellant that he had not executed any agreement to sell. This stood proved from the fact, that appellat raised construction of chubara by spending huge amount, without any objection from the plaintiff/respondents. The plea of specific performance, therefore, caused undue hardship defendant/appellant, whereas no hardship was likely to be caused to the plaintiff/respondents, in the event of refusal to decree the suit for specific performance. The contention of the learned counsel for the appellant was, that the decree passed by the learned Courts below, is not only outcome of mis-reading of evidence, but also opposed to the provisions R.S.A. No. 477 of 2010 (O&M) of Section 20 of the Specific Relief Act. -4- The contention of the learned counsel for the appellant further was, that it was admitted case of the plaintiff/respondents that the property was worth more than Rs.8,00,00/- (Rupees eight lac only). Therefore, the plea of the defendant/appellant that no agreement to sell was executed @ Rs.3,50,000/- (Rupees three lac and fifty thousand only), stood fully proved, but this important fact stood ignored by the learned Courts below. It was the contention of the learned counsel for the appellant, that the evidence of the marginal witnesses clearly showed, that they were not present at the time of agreement to sell and had signed it subsequent to the preparation of the agreement, therefore, it caused suspicion regarding the execution of the agreement. On the contentions referred to above, the learned counsel for the appellant prayed, that the substantial questions of law be answered in favour of the appellant. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. It is noticed, that though specific plea was raised by the defendant/appellant, that he had raised construction and spent huge amount of money, but appellant led no evidence to prove this assertion. The learned Courts below, therefore, on appreciation of evidence rightly recorded a concurrent finding of fact, that construction as claimed was not proved by the defendant/appellant, to assert that the defendant/appellant was to suffer irreparable loss, whereas no loss was to be caused to the plaintiff/respondents, to attract the provisions of Section 20 of the Specific Relief Act, to deny the decree of specific performance. Similarly, the contention of the learned counsel for the appellant that price of the shop was Rs.8,00,00/- (Rupees eight R.S.A. No. 477 of 2010 (O&M) -5- thousand only) to Rs.9,00,000/- (Rupees nine lac only), therefore, the agreement could not be executed, cannot be accepted. The learned Courts below considered this contention and have recorded a finding that price of Rs.3,50,000/- (Rupees three lac and fifty thousand only) fixed by the parties, was in view of the fact that shop was in possession of the tenant and, therefore, it could not fetch more price than the price fixed. The inadequacy of price otherwise also cannot be a ground to non-suit the plaintiff/respondents for claiming specific performance of agreement. Discrepancies pointed out by the learned counsel for the appellant in the statement of witnesses are immaterial to hold that findings recorded by the learned Courts below are perverse or outcome of mis-reading of evidence and, therefore, could not be arrived at on appreciation of evidence. The contention of the learned counsel for the appellant on the substantial question of law, that discretion could not be exercised in favour of the plaintiff/respondents in view of Section 20 of the Specific Relief Act, cannot be accepted, as the defendant/appellant had failed to prove any hardship to appellant or undue benefit to the plaintiff/respondents, which could be said to be inequitable so as to reject the prayer for specific performance of agreement. The substantial questions of law, referred to above, are answered against the appellant. No merit. Dismissed. February 04, 2010 R.S. (Vinod K. Sharma) Judge