RSA No.2488 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2488 of 2008(O&M) Date of decision: 8.12.2008 Lachhmi Devi ......Appellant Versus Uttam Chand ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vimal Kumar Gupta, Advocate for the appellant. Rakesh Kumar Garg, J. CM No.7279-C of 2008 For the reasons recorded in the application, delay of 345 days in refiling the appeal is condoned. CM stands disposed of. RSA No.2488 of 2008(O&M) This is defendant’s second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit for possession by way of specific performance of agreement to sell dated 11.9.1997 in respect of the disputed shop has been decreed and the defendant- appellant has been directed to execute and get registered the sale deed in favour of the plaintiff-respondent within a period of 2 months after receiving the balance sale consideration failing which the plaintiff-respondent shall be entitled to get the sale deed executed and registered through the process of the Court. As per the averments made in the plaint, prior to the agreement to sell, the plaintiff was a tenant in the disputed shop under Shish Ram, husband of the defendant and had been paying rent to him. It RSA No.2488 of 2008(O&M) 2 was further mentioned that rent deed was executed vide which the disputed shop was rented out to the plaintiff w.e.f. 1.12.1994 to 30.11.1999 at the rate of Rs.100/- per month and after having received Rs.6,000/- as rent for the aforesaid period, Shish Ram alienated the disputed shop in favour of his wife Lachhmi Devi on 2.6.1997 and therefore, the plaintiff became tenant under her. The plaintiff and defendant entered into an agreement to sell dated 11.9.1997 qua shop in dispute for a sale consideration of Rs.25,000/- and the defendant received a sum of Rs.7,000/- as earnest money from the plaintiff. The sale deed was agreed to be executed on or before 10.3.1998 upon payment of balance sale consideration. It is further the case of the plaintiff that on 10.3.1998, he along with balance sale consideration of Rs.18,000/- reached the Office of Sub Registrar, Jagadhri but the defendant did not turn up. The plaintiff was always willing and ready to perform his part of the agreement and served a notice Ex.P-8 on 18.3.1998 through registered A.D but in vain. Hence, the present suit was filed. The defendant filed written statement wherein she contested the suit and, inter alia, pleaded that she never executed any agreement to sell in favour of the plaintiff for execution of sale deed and the agreement to sell is an act of fraud and misrepresentation, as the defendant had asked the plaintiff for advancement of loan to the extent of Rs.7,000/- and the thumb impression of the defendant was obtained by the plaintiff on the pretext of document qua advancement of loan. The defendant is willing to repay the amount of Rs.7,000/- alongwith interest at the rate of 12% per annum. It is admitted that the plaintiff is using the shop in dispute as tenant on the agreed rent between the plaintiff and the defendant and therefore, having good faith upon the plaintiff, she had affixed her thumb impression on some papers for the purpose of loan, which is alleged to RSA No.2488 of 2008(O&M) 3 have been converted by the plaintiff into agreement to sell and the electricity connection has been obtained by the plaintiff without the consent of the defendant. The market value of the shop in dispute is more than Rs.1,00,000/-. Since no agreement to sell was executed, therefore, other pleas of the plaint were controverted by the defendant and raised additional pleas qua locus-standi, maintainability and estoppel etc. were raised and thus, dismissal of the suit was prayed for. After hearing arguments and considering the evidence, the trial Court held that the defendant had executed agreement to sell in question and received Rs.7,000/- as earnest money and the defendant was directed to return the amount of Rs.7,000/- to the plaintiff along with interest at the rate of 18% per annum from the date of payment i.e 11.9.1997 till final realization within a period of 2 months. The defendant was also restrained from dispossessing the plaintiff or from interfering into his peaceful possession as tenant over the shop in dispute otherwise except in due course of law. Feeling dissatisfied with the aforesaid judgment and decree of the trial Court, the plaintiff preferred an appeal. The defendant-appellant also filed cross-objections with regard to the rate of interest awarded by the trial Court. Findings of the trial Court with regard to the execution of the agreement to sell were not challenged by the defendant-appellant. The Lower Appellate Court on appreciation of evidence held that the oral as well documentary evidence of the plaintiff on record is sufficient to prove that he was and is still ready to perform his part of the contract and there is nothing on record that specific performance of the agreement to sell would cause any undue hardship to the defendant and unfair advantage to the plaintiff and thus, set aside the judgment and decree of the trial Court for refund of earnest money of Rs.7,000/- paid by the plaintiff to the defendant RSA No.2488 of 2008(O&M) 4 at the rate of interest 18% per annum and suit of the plaintiff-respondent for specific performance of the agreement to sell dated 11.9.1997 in respect of the disputed shop was decreed with costs. Feeling aggrieved against the aforesaid judgment and decree of the Lower Appellate Court, the defendant-appellant has filed this appeal challenging the aforesaid judgment and decree. Learned counsel for the appellant has vehemently argued that it has been proved on record that although the appellant was not a pardahnashin lady as such but the fact remains that she herself was an old, illiterate and rustic villager and her position could not be any better than a pardahnashin lady and the burden of proof always rests upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It was further argued that the appellant has taken a specific plea in the written statement that she had approached the plaintiff-respondent for loan to the extent of a sum of Rs.7,000/- and had never executed any agreement to sell the shop in dispute in favour of the respondent and he obtained her thumb impression being an illiterate lady on the papers which were never read over to her on the pretext of advancement of loan and thus, the transaction entered into is only qua a loan and not an agreement to sell in view of the aforesaid specific stand taken by the defendant in the written statement in this case. It was for the respondent to prove that document executed by the appellant was not a loan document but an agreement to sell. In support of his argument, learned counsel has relied upon a judgments of this Court reported as Sujan Kaur v. Chand Singh 2003(3) CCC 251 and Mst.Kharbuja Kuer v. Jangbahadur Rai and others AIR 1963 SC 1203. RSA No.2488 of 2008(O&M) 5 I have heard learned counsel for the appellant. I find no merit in the contentions raised by the learned counsel for the appellant. There is no dispute with the proposition of law as settled by the aforesaid judgments as cited by the learned counsel for the appellant. However, in the instant case, the plaintiff is a tenant under the defendant. There is nothing on record which may show that he was in a position to dominate the Will of defendant and could exercise undue influence over her to execute the agreement to sell instead of loan agreement. The execution of the agreement has been duly proved by its attesting witnesses. The evidence of the defendant-respondent is not sufficient to prove the plea of fraud and misrepresentation put forth by her. The defendant in her pleadings has not pleaded as to for what purpose the loan was required by her but as DW-4, in her affidavit she had stated that her husband was ill and for that purpose, she had borrowed the amount from the plaintiff. However, no documentary evidence has been placed on record to show that husband of the plaintiff was ill or operated upon during the relevant period, when the document Ex.P-2 was executed. The defendant in her cross-examination has stated that she had obtained loan from the plaintiff number of times and she was having money dealings with him, but on the previous occasion he had not obtained any thumb impression on any other paper. This fact itself indicates that had it been only the money transaction, there was no need to obtain thumb impression of the defendant on any document. Her thumb impressions were obtained only as the document was an agreement to sell and not only the money transaction, as alleged. There is absolutely no evidence to reach the conclusion that the agreement Ex.P-2 was a result of fraud and misrepresentation. From the evidence placed on record by the plaintiff- RSA No.2488 of 2008(O&M) 6 respondent, the execution of the agreement to sell in question has been proved beyond any doubt. The Courts below also found that the plaintiff- respondent was willing and is still ready to perform his part of contract. In fact these findings have not been challenged by the appellant in this Court. Moreover, neither there are pleadings nor any evidence which may show that the specific performance of contract to sell would cause any undue hardship to the appellant and the plaintiff-respondent would get undue advantage. No other point has been urged. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 8, 2008 (RAKESH KUMAR GARG) ps JUDGE