RSA No.1540 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1540 of 2010 (O & M) Date of Decision: 26.08.2010 Narinder Kumar and another .....Appellants Versus Faquir Chand ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Kanwaljit Singh, Sr. Advocate with Mr. Sidharath Gupta, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.4602-C of 2010 Allowed as prayed for. RSA No.1540 of 2010 This is second appeal by defendants-Narinder Kumar and Bal Krishan both brothers, having failed in both the Courts below. Respondent-plaintiff-Faquir Chand filed suit against appellants for possession of suit house by specific performance of the agreement to sell. The plaintiff alleged that defendants had been taking various amounts as loan from the plaintiff from time to time and consequently a sum of Rs.3,00,000/- became due from the defendants to the plaintiff. To discharge the said debt, the defendants agreed to sell the suit property to the plaintiff and acknowledged the debt amount of Rs.3,00,000/- and adjusted the same towards sale consideration of Rs.4,00,000/- for the suit house and executed agreement dated 24.10.1998. Sale deed was to be executed within six months of the agreement i.e upto 30.04.1999. RSA No.1540 of 2010 (O & M) -2- However, on 04.04.1999, defendant No.1 for himself as well as on behalf of defendant No.2, received further amount of Rs.60000/- in cash from the plaintiff towards balance sale consideration and date for execution of the sale deed was extended upto 31.07.1999 by making endorsement on the last page of the agreement. The plaintiff always remained ready and willing to perform his part of the contract, but the defendants committed breach thereof. The plaintiff even sent notice dated 19.07.1999 by registered post to the defendants, but even then, they failed to execute the requisite sale deed. The defendants inter alia pleaded that they never executed the impugned agreement to sell nor they never agreed to sell the suit house to the plaintiff for Rs.4,00,000/-. On the contrary, defendant No.1 borrowed Rs.18000/- initially in the year 1996 from the plaintiff on the condition that if the amount was not returned within 15 days, he would have to pay Rs.20,000/-. The interest amount kept on accumulating. Defendant No.1 came under heavy debt. He also borrowed some more amounts from the plaintiff from time to time. Total amount borrowed by defendant No.1 was Rs.1,56,000/- only from the year 1996 to 1999. Defendant No.1 had been paying interest at the rate of 5% per month to the plaintiff, but without any receipt. Both the defendants signed the documents in which amount of Rs.1,56,000/- was depicted to be Rs.3,00,000/-. The documents were signed under threat and coercion. The defendants were made to sign the alleged agreement to sell dated 24.10.1998 and later on defendant No.1 was again made to sign the receipt allegedly executed on 04.04.1999, although defendant No.1 had not taken further amount of Rs.60000/- from the plaintiff and RSA No.1540 of 2010 (O & M) -3- rather said amount was added on account of interest. The suit house was already mortgaged with State Bank of Patiala by deposit of title deeds. Defendants pleaded fraud allegedly played by the plaintiff. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ambala Cantt. Vide judgment and decree dated 15.09.2007 decreed the plaintiff's suit. First appeal preferred by defendants stands dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 18.08.2009. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. In order to prove his case, the plaintiff himself entered into the witness box and also examined Ashok Kumar attesting witness of the agreement. On the other hand, defendant No.1 appeared in the witness box and stated according to his version. Defendants have admitted their signatures on the impugned agreement to sell. The plaintiff has also stated that the defendants executed the said agreement. The plaintiff has also examined attesting witness of the agreement who has also deposed in favour of the plaintiff. Solitary statement of defendant No.1 is not sufficient to prove the alleged fraud. On the contrary, signatures of defendants on the agreement stand admitted. Execution of the agreement is fully proved by the plaintiff. Consequently, suit of the plaintiff has been rightly decreed by the Courts below. In addition to the aforesaid, during the pendency of the suit, defendants sold the suit house to one Neelam Rani vide sale RSA No.1540 of 2010 (O & M) -4- deed dated 14.06.2005 for Rs.2,40,000/- after obtaining 'No Objection Certificate' dated 18.05.2005 from the Bank. This dishonest act of the defendants further disentitles them to any sympathy or discretion. As per impugned agreement, sale consideration was Rs.4,00,000/-, but the defendants, almost 7 years after the agreement, sold the suit house for Rs.2,40,000/- only, although during the intervening period of 7 years, market price of the suit house must have escalated. Moreover, the sale was effected without informing the Court or the plaintiff. Defendants had already received Rs.3,60,000/- out of sale consideration of Rs.4,00,000/- from the plaintiff. In spite thereof, the defendants sold the suit house to Neelam Rani for Rs.2,40,000/-. Learned counsel for the appellants vehemently contended that admittedly there was loan transaction between the parties and, therefore, discretionary relief of specific performance of the agreement should not have been granted to the plaintiff in view of Section 20 of the Specific Relief Act, 1963. Reliance in support of this contention has been placed on judgment of this Court in the case of Prem Singh versus Mangu Ram , 2004(3) RCR (Civil) 41 and judgment of Kerala High Court in Lalithambika versus M.O.Varghese, 2005(1)RCR (Civil) 605. I have carefully considered the aforesaid contention, but find no merit therein. In the instant case, agreement was not executed at the time of taking of loan by defendant No.1 from the plaintiff. On the other hand, defendant No.1 had been taking loan from the plaintiff for 3-4 years and it was only when the loan accumulated and defendant No.1 was unable to RSA No.1540 of 2010 (O & M) -5- discharge the debt, the defendants agreed to sell the suit house. Judgments in the cases of Prem Singh (supra) and Lalithambika (supra) are not attracted because in those cases, agreements to sell were executed under compulsion of taking loan. In the instant case, however, loan had already been taken and the agreement was executed long after the loan transactions had already taken place between the parties. Consequently, it cannot be said in the instant case that the agreement was executed under compulsion of taking loan or as security for the loan transactions. On the other hand, as already noticed hereinabove, dishonest action is on the part of the defendants as they sold the suit house during pendency of the suit to a third person for lesser consideration. Thus no ground for declining the relief of specific performance of the agreement to sell to the plaintiff is made out. For the reasons recorded hereinabove, I find no merit in the instant second appeal. There is concurrent finding by both the Courts below after appreciation of evidence. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. 26.08.2010 ( L. N. MITTAL ) A. Kaundal JUDGE