RSA No.1510 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1510 of 2008(O&M) Date of decision: 23.12.2008 Sahab Ram ......Appellant Versus Sube Singh and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.S. Mittal, Sr. Advocate with Mr. Atul Gaur, Advocate for the appellant. Mr. Deepak Baliyan, Advocate for the respondents. * * * Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiffs for possession by way of specific performance of the agreement to sell Ex.P1 dated 5.2.2003, has been decreed. The plaintiffs averred that the defendant was owner in possession of land in dispute and he entered into an agreement to sell dated 5.2.2003 for a total sale consideration of Rs.3,90,000/- at the rate of Rs.1,30,000/- per acre. The plaintiffs paid Rs.1,76,000/- as earnest money at the time of execution of the agreement. The sale deed was to be registered on 8.8.2003 on payment of balance sale consideration and the expenses for execution of the sale deed were to be borne by the plaintiffs. On the date fixed i.e. 8.8.2003, the plaintiffs remained present in the office of the Sub Registrar, Fatehabad, along with the balance sale consideration and other expenses, but the defendant did not appear to get the sale deed registered. The plaintiffs got their presence marked in the office of the RSA No.1510 of 2008(O&M) 2 Sub Registrar, Fatehabad. The plaintiffs then came to know that the defendant was confined in the Central Jail, Hisar in case FIR No.42, Police Station Bhattu Kalan and was released on parole during Holi Festival in 2004. During this period, the plaintiffs requested the defendant to get the sale deed executed, but the defendant put off the matter with false promises. The defendant was then again confined to jail. He was served with a legal notice dated 29.3.2004 through the Superintendent of Jail, Hisar, but despite the same, the sale deed was not executed and hence, the suit. The defendant resisted the suit by taking preliminary objections. On merits, he denied that he had entered into agreement to sell dated 5.2.2003 or he received the earnest money of Rs.1,76,000/- from the plaintiffs. He also denied all the conditions of the agreement and the date of execution of sale deed. He further alleged that the plaintiffs were in fact money lenders by profession and used to give money on interest to people in lieu of the documents of sale and they used to obtain the signatures/thumb impressions of the loanees on blank stamp papers by way of security. The defendant had borrowed a sum of Rs.80,000/- from the plaintiffs for his personal use which was repayable along with interest at the rate of 18% per annum. The plaintiffs had obtained signatures of the defendant on a blank stamp paper on 8.2.2002 as security and had undertaken to return the stamp paper on repayment of the loan amount. The plaintiffs had paid Rs.50,000/- on 8.2.2002 and the remaining amount of Rs.30,000/- was to be paid after 2-3 days. The plaintiffs had informed the defendant that his signatures would be taken in the register of the deed writer as a security. On 11.2.2002, the plaintiffs paid a sum of Rs.30,000/- to the defendant after obtaining his signatures in the register of the deed writer, but no agreement to sell had been executed. Since the defendant RSA No.1510 of 2008(O&M) 3 was in custody in criminal proceedings, he could not repay the amount and when he was released on parole, he assured the plaintiffs that his wife Bimla would make the payment of the loan amount. The plaintiffs then again obtained the signatures of the defendant on blank stamp paper which they had fabricated into the agreement to sell dated 5.2.2003. Smt. Bimal along with Mewa Singh, the brother of the defendant had paid Rs.40,000/- in December, 2003, to the plaintiffs and had requested for some time to pay the remaining amount and interest. The plaintiffs had declined to give the receipt to Smt. Bimla at that time and had assured her that the receipt would be issued when the entire payment was made. Smt. Bimla, was unable to make the payment of the remaining amount and the plaintiffs had taken advantage of this situation to file the present suit which was false and frivolous. The legal notice issued by the plaintiffs was also illegal and their suit was liable to be dismissed being false and frivolous. The plaintiffs filed replication reasserting the averments made in the plaint and controverting the contents of the written statement. The following issues were framed by the trial Court: “1. Whether an agreement dated 5.2.2003 had been executed between the parties, as prayed?OPP 2. If issue No.1 is proved, then whether the plaintiff is entitled to the specific performance of the agreement dated 5.2.2003? OPP 3. Whether the suit is maintainable in the present form? OPP 4. Whether the agreement dated 5.2.2003 is a forged and fraudulent document, if so its effect? OPD. 5. Whether the suit is false and frivolous and liable to be dismissed as such? OPD RSA No.1510 of 2008(O&M) 4 6. Relief.” It is relevant to mention here that no arguments were advanced by the defendant and his counsel though adequate opportunity was granted to the defendant to submit his oral/written arguments. On the basis of the evidence led by the parties and perusing the record, the trial Court decided all the issues in favour of the plaintiffs and in the result the suit was decreed with costs vide judgment and decree dated 18.8.2005 by the trial Court. While decreeing the suit, the trial Court held that the plaintiffs have led cogent evidence on record not only to prove the due and valid execution of the agreement Ex.P1, but they have also proved their readiness and willingness to perform their part of the contract. The trial Court also found that the claim of the defendant that he never intended to execute the agreement to sell is falsified by his own admission and the defendant has failed to prove that he had ever taken a loan from the plaintiffs or that the plaintiffs are money lenders by profession. Feeling aggrieved by the aforesaid judgment and decree of the trial Court, the appellant filed an appeal which was also dismissed by the Additional District Judge, Fatehabad vide impugned judgment and decree dated 28.2.2008. While dismissing the appeal, the Lower Appellate Court observed as under: “The stand taken up by appellant-defendant as argued by his counsel Sh.C.L. Narang, Advocate is that in fact the appellant-defendant had borrowed a sum of Rs.80,000/- from the respondent-plaintiffs and the plaintiffs had obtained the signatures of the defendant upon some blank stamp papers which have been used in the preparation of the forged and fabricated agreement to sell dated 5.2.2003. This plea cannot be RSA No.1510 of 2008(O&M) 5 accepted in view of the fact that there is nothing on record to suggest that the defendant had taken a loan of Rs.80,000/- from the plaintiffs on the basis of the alleged agreement to sell dated 5.2.2003 which has been duly proved. Bhim Sain Taneja-PW1 has scribed the agreement EX.P1 at the instance of the parties which has been duly proved by the attesting witnesses namely Kali Ram-PW2 and Mahender Singh-PW3 who have categorically stated that the plaintiffs had paid a sum of Rs.1,75,000/- to the defendant as earnest money at the time of the execution of the agreement to sell dated 5.3.2003 in their presence after which they also affixed their signatures/thumb impression and therefore, it does not lie in the mouth of the defendant to say that he had taken a loan of Rs.80,000/- from the plaintiffs out of which a sum of Rs.40,000/- was paid to the plaintiffs by his wife during the period December, 2003, as this fact is not supported by any cogent documentary evidence. Smt.Bimla Devi-DW4 has stated that she paid a sum of Rs.40,000/- to the plaintiffs during the month of December, 2003 but she has not produced the receipt in support of the fact that she has paid the said amount to the plaintiffs at any time. It is well settled law that the plea of the vendor that the agreement to sell was in fact a document for advancement of loan in stead of an agreement to sell cannot be accepted and, therefore, the oral versions of Sahab Ram-DW3, Smt. Bimla Rani- DW4 and Mewa Singh-DW5 that the defendant took a RSA No.1510 of 2008(O&M) 6 loan of Rs.80,000/- from the plaintiffs cannot be believed which is not sufficient as the execution of the agreement to sell dated 5.2.2003 has been duly proved. Even the defendant has admitted his signatures at mark XYZ on the agreement Ex.P1 and, therefore, it does not lie in the month of the defendant to say that he did not execute the agreement to sell dated 5.2.2003 Ex.P1. The plaintiffs were always ready and willing to perform their part of the contract which is clear from the fact that they even served the notice, Ex.P3 which was duly received by the defendant as per registered AD Ex.P5 but in spite of it the defendant failed to execute the sale deed in favour of the plaintiffs after the receipt of the balance sale consideration. Even the plaintiffs appeared in the office of Sub Registrar, Fatehabad on 8.8.2003 the date fixed for execution of the sale deed but the defendant failed to appear before the Sub Registrar for execution of the sale deed in favour of the plaintiffs and, therefore, the plaintiffs also got their presence marked by way of affidavit Ex.P2 after which the plaintiffs were left with no other option except to file the suit for specific performance of the agreement to sell dated 5.2.2003 Ex.P1 which is perfectly legal and valid and the same is not a forged document.” Still not satisfied, the defendant has filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have failed to take into consideration that the alleged RSA No.1510 of 2008(O&M) 7 agreement to sell was a sham transaction, as the plaintiff-respondents, who are money lenders, had procured appellant's signatures on some blank stamp papers only as a security for repayment of loan amounting to Rs.80,000/- and this fact has been well proved by the appellant. It has been therefore, argued that the appellant had never executed an agreement to sell in question and the document alleged to be an agreement to sell is a sham transaction and thus, the judgment and decrees of the Courts below are liable to be set aside. Elaborating his argument further , the learned counsel for the appellant has argued that the plaintiff-respondents have been acting as regular money lenders in the village. Their practice was to advance loans to various persons in need of money in lieu of obtaining stamp papers signed/thumb marked of the borrowers as security. In this case some of these stamp papers were misused for forging agreement to sell lands of the borrowers. According to the learned counsel for the appellant, the agreement Ex.P1 in the present suit is another forged agreement in the chain of many other forged agreement by the plaintiff-respondents. In support of his argument, learned counsel for the appellant has placed reliance on Annexures A-1 and A-2 attached with Civil Misc. No.4747-C of 2008 filed along with this appeal under Order 41 Rule 27 CPC for permission to adduce additional evidence. According to him, these documents would show conclusively along with Ex.D2 that the plaintiffs have been procuring blank signed stamp papers from various persons in the village and they have been acting as money lenders and the said plaintiffs have also obtained document in question in the present suit i.e Ex.P1 in a similar fashion. Learned counsel for the appellant has also stated that in this case the total sale consideration was Rs.3,90,000/- out of which Rs.1,76,000/- were alleged to have been paid as earnest money. In spite of having paid the said huge RSA No.1510 of 2008(O&M) 8 amount as earnest money, possession of the land in dispute was not obtained by the plaintiffs and moreover, the suit was filed after a considerable lapse of time and in view of these facts, the Courts below are wrong while granting the decree for specific performance of the agreement and therefore, the appeal is liable to be accepted. I have heard learned counsel for the appellant. The stand taken up by the appellant is that he had borrowed a sum of Rs.80,000/- from the respondents and the respondents had obtained the signatures of the defendant upon some blank stamp papers which have been used in the preparation of the forged and fabricated document dated.5.2.2003. This plea cannot be accepted in view of the fact that there is nothing on record to suggest that the defendant had taken a loan of Rs.80,000/- from the plaintiffs. The plea of the defendant regarding the stamp papers of which agreement Ex.P1 had been executed being a security document is inadmissible yet the defendant examined his wife Smt.Bimla and brother Mewa Singh as DW-4 and DW5 respectively to prove that they had paid a sum of Rs.40,000/- as part payment of the loan taken by the defendant. In the first instance, such a plea is not open to the defendant and even otherwise the defendant has failed to prove that he had ever taken such a loan from the plaintiffs or that the plaintiffs are money lenders by profession. No doubt, Smt. Bimla has stated that she had paid a sum of Rs.40,000/- in presence of his brother-in-law DW-5, however, no such reply has been produced on record by them. It is settled proposition of law that nothing extraneous can be read into a written document entered into between the parties. In these circumstances, the plea of the defendant that the papers signed by him was in fact a contingent agreement cannot be accepted and no oral evidence of the defendant is permissible to contradict, vary add or subtract from the written RSA No.1510 of 2008(O&M) 9 agreement to sell Ex.P-1. On the other hand, all the witnesses produced on behalf of the plaintiffs have clearly stated that the defendant had voluntarily entered into the agreement to sell with the plaintiffs and had signed the agreement willingly and voluntarily being fully aware of the contents of the said document and he was paid a sum of Rs.1,76,000/- by the plaintiffs in their presence. The plaintiffs have not only proved the due and valid execution of the agreement Ex.P1 but they have also proved their readiness and willingness to perform their part of the contract. Their readiness and willingness has been proved by way of the affidavit submitted by them before the Sub Registrar, Fatehabad, which reflect their willingness to get the sale deed executed in accordance with the condition of the agreement Ex.P!. They had also proved the notice Ex.P3 which was duly received by the defendant as per AD Ex.P5. At this stage, it is also relevant to point out that the appellant has failed to make out any case for permitting him to adduce additional evidence under Order 41 Rule 27 as prayed by him vide CM No.4747-C of 2008 yet I have perused the Annexures A-1 and A-2 attached with this application. These documents do not advance the case of the appellant in any manner. Thus, the application filed by the appellant for permitting him to adduce additional evidence is rejected. The last contention of the appellant with regard to the argument that in the facts and circumstance of the case, the respondents were not entitled to the decree of specific performance of the agreement in question is also liable to be rejected. The plaintiff-respondents have clearly stated and proved that the sale deed was to be registered on 8.8.2003 on payment of balance sale consideration and the plaintiffs remained present in the office of the Sub Registrar, Fatehabad along with balance sale consideration and other expenses but the defendant did not RSA No.1510 of 2008(O&M) 10 appear to get the sale deed registered. The plaintiffs then came to know that the defendant was confined in the Central Jail, Hisar and was released on parole during Holi Festival in 2004 and during this period he was requested to get the sale deed executed but the defendant put off the matter with false promises. He was again confined to jail and thereafter, he was served with a legal notice dated 29.3.2004 through the Superintendent of Jail, Hisar but despite the same, the sale deed was not executed and thereafter, the suit was filed. Thus, the plaintiff-respondents have fully explained the reasons for not filing the case immediately against the defendant. However, the limitation for filing the suit for specific performance is three years and undisputedly, the case was filed by the plaintiff-respondents within limitation. The defendants have failed to prove any reason which disentitles the plaintiff-respondents to the grant of decree for specific performance of the agreement. Thus, for the reasons recorded above, I find no merit in this appeal and the same is dismissed. December 23, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.1510 of 2008(O&M) 11 RSA No.1510 of 2008(O&M) 12