IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.296 of 2009 SARASWATI DEVI, WIFE OF SRI NARAYAN DAS, RESIDENT OF MOHALLA-SHASTRI NAGAR, POLICE STATION- K.HAT, DISTRICT-PURNIA. ………………………...DEFENDANT-APPELLANT-APPELLANT. Versus SMT.ARUNA KARMAKAR, WIFE OF MAULKA LAL KARMAKAR, RESIDENT OF MOHALLA-BHATTA, POLICE STATION-K. HAT, DISTRICT-PURNIA. ……………………….PLAINTIFF-RESPONDENT-RESPONDENT. ----------- For the Appellant : M/s. T. N. Maitin, Senior Advocate and Rajeev Kumar Sinha, Advocate. For the Respondent: Mr. Rajeeva Roy, Advocate. ---------- 7. 15.11.2010. Heard learned counsel for the appellant and the respondent. This appeal has been preferred against the judgment and decree dated 1st of June, 2009, passed by the District Judge, Purnia, in Title Appeal No.46 of 2006, whereby the appeal has been dismissed and the judgment and decree dated 21.8.2000, passed by the Sub Judge-VI, Purnia, in Title Suit No.337 of 1996, decreeing the suit, has been affirmed. The plaintiff has brought a suit for specific performance of contract for sale on the ground that on 14.8.1993, one agreement for sale in favour of the plaintiff was 2 executed by the defendant no.1-appellant, Saraswati Devi, for sale of the suit property, which is a shop, fully described in the Schedule-A of the plaint. It has been alleged by the plaintiff that Rs.45000/- was paid by way of earnest money and subsequently again Rs.50,000/- was paid as against the total consideration money of Rs.1,30,000/-. The defendant contested the suit by filing written statement and challenged the said agreement on the ground of its having been achieved by undue influence and coercion. The case of the defendant is that the defendant no.1 as well as the plaintiff both were tenants of the landlord, namely, Subhash Chandra Mukherjee and they were in possession of two different shops. By two sale deeds executed on 31.7.1993, i.e., Exts.C and C/1, the defendant no.1 purchased both the shops on payment of valuable consideration. However, the sale deed could be registered only on 4.8.1993. It has also been alleged that subsequently the mind of the plaintiff had changed and under his influence the vendor of the defendant no.1 threatened her that unless she executes agreement in favour of the plaintiff for sale of the shop, which was under occupation of the husband of the plaintiff as tenant wherein he was running a shop, he would neither present the sale deed for registration nor 3 would he admit the execution before the registration authority. Thus, under this compelling circumstances, the defendant was forced to enter into a contract for sale by execute a deed of agreement on 4.8.1993 itself, i.e., the date on which the earlier sale deed was registered. Secondly, the plaintiff also denied the factum of receiving Rs.50,000/- further as a consideration money. The trial court, in all, framed about 7 issues and recorded a finding that the deed of agreement is genuine and has not been obtained by threat and coercion and also that Rs.50,000/- was further paid by the plaintiff towards consideration money. Similarly, under issue no.5, the trial court has also come to the conclusion that the plaintiff was always ready and still ready to perform her part of contract. Thus, the suit was decreed. The defendant-appellant challenged the judgment and decree of the trial court by preferring Title Appeal No.46 of 2006. The lower appellate court, upon noticing the issues involved before the trial court, hearing the parties and perusal of the materials on record formulated three points for consideration, which are as under: 4 (A) Whether Ext.2 is the product of undue influence and coercion perpetrated and practiced by the plaintiff, her husband and the vendor of defendant No.1 (Ext.C series)? (B) Whether Ext.2 is enforceable in law? (C) Whether alternative relief be granted by the learned court below as alternatively prayed for by the plaintiff? Upon consideration of rival submissions and materials on record, the lower appellate court has also come to the conclusion that Ext.2, i.e., the deed of agreement appears to be legal and valid document and has not been the product of undue influence and coercion. It has been submitted on behalf of the appellant that though there were pleadings in the written statement, a separate issue with regard to the Ext.2 being a result of undue influence and coercion was not framed by the trial court. It has further been urged that the lower appellate court, thus, in place of deciding the issues at the appellate stage, should have remitted back the matter to the trial court for fresh determination after 5 framing such issue. Secondly, it has been urged that the courts below in their discretion as to Section 20 of the Specific Relief Act, 1963, even assuming that the contract was not avoidable, should have refused to grant such relief holding that it will cast and give the plaintiff an unfair advantage over the defendant. Learned counsel for the appellant also submitted that though the trial court has framed the issues with regard to the further payment of Rs.50,000/- and decided the same as issue no.4, but the lower appellate court has neither formulated such point nor has decided the same. I do not find any substance in the submissions raised on behalf of the appellant. It is correct that no separate issue with regard to Ext.2 having been obtained under undue influence and coercion has been framed but from the pleadings of the parties and discussions in the judgment, it is quite clear that such point was raised and was well known to the parties and even evidence has been led on their behalf and even though no separate issue has been framed, such issue stands considered by the trial court while considering the issue no.III. The trial court has considered this matter in detail and has come to the conclusion that the whole story of undue influence and coercion raised by the defendant to the effect that 6 her vendor threatened her that he would not present the sale deed for registration or that he would refrain from admitting the execution before the registration authority unless the agreement for sale in question is executed in favour of the plaintiff, is not reliable. It has been held that the agreement for sale bears even the sale deed number which clearly indicates that though such agreement was entered on the same day but the registration of the sale deed had taken place earlier to the agreement in question. Such threat, thus, could not have been given by her vendor after registration of the sale deed. Similar view has also been taken by the lower appellate court. In view of consideration as above, the point raised regarding exercise of discretion by the courts below in favour of the defendant, by not granting a decree as per the provisions under Section 20 of the Specific Relief Act, would also not be available to the appellant inasmuch as nothing could be placed before this Court that the same would cast unfair advantage upon the defendant. The defendant has not even alleged that the suit property was sought to be sold forcibly, as per the agreement, at a lower rate than the rate of purchase or even at the same rate. So far as the question of payment of Rs.50,000/- is concerned, the trial court has considered this matter under 7 issue no.IV and while considering the same, has also considered the oral evidence led by the plaintiff herself, who has been examined as a defendant witness (D.W.5) and has stated, as noticed by the trial court, that she has purchased the suit land with the help of her husband, and her husband and she are the masters of their family. Nothing could be pointed out by the learned counsel for the appellant indicating that there had been specific stand by the defendant that she has not authorized her husband to receive money and grant receipt. From the judgment of the appellate court, it appears that upon hearing the parties, only three points, as indicated above, were formulated by it for determination. Thus, it appears that controversy with regard to further payment of Rs.50,000/- was given a go bye by the appellant and was not pressed before the appellate court. Of course, learned counsel for the appellant has submitted before this Court that the appellate court should have considered all the issues, however, from the judgment of the appellate court, it appears that this point was not pressed otherwise the appellant could have taken steps before the lower appellate court itself, immediately after the delivery of the judgment when the matter was still fresh, either by filing an affidavit or a review raising therein that aforesaid point was not 8 decided by the lower appellate court even though the same was argued. However, since nothing has been done in this regard and lower appellate court has clearly indicated that after hearing the parties it has formulated three points for consideration, I do not think that now this point, as raised, would be available to the appellant. In the above view of the matter, learned counsel for the appellant could not point out any error which may lead to a substantial question of law. As a result, this appeal is dismissed. P.S. ( Dr. Ravi Ranjan, J)