RSA No.1869 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1869 of 2011 (O&M) Date of Decision: 21 .11.2011 Rambir ...Appellant Vs. Surjan ....Respondent BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Rohit Ahuja, Advocate, for the appellant. --- A.N.Jindal, J. CM No.5263-CII of 2011 For the reasons stated in the application, the same is allowed and the appellant is allowed to make good the deficiency in court fee. RSA No.18969 of 2011 Civil Judge (Senior Division) Faridabad vide judgment dated 13.04.2010 had decreed the suit of the plaintiff/respondent (herein referred as the plaintiff) for specific performance of the contract against the defendant/appellant (herein referred as the defendant). ` RSA No.1869 of 2011 2 Appeal preferred, against the said judgment, was dismissed on 18.11.2010. The plaintiff had sought relief for specific performance of the contract executed by the defendant on 9.01.2004 vide which the defendant after receiving a sum of Rs.65,000/- as earnest money out of total consideration of Rs.85,000/- for the purchase of 3 kanals 10 marlas of land agreed to execute the sale deed on or before 9.7.2004 on payment of remaining sale consideration. Plaintiff had always been ready and willing to perform his part of the contract, whereas the defendant failed to comply with the terms of the agreement. While claiming decree for specific performance, the plaintiff sought to grant decree for recovery of Rs.65,000/- along with interest at the rate of 12 per cent per annum on account of damages in the alternative. The defendant in his written statement while denying the execution of the agreement as well as passing of consideration thereunder, further submitted that only Rs.20,000/- were taken by him as loan against which the plaintiff had got his signatures on the blank papers and those blank papers were later on converted into agreement and he never wanted to transfer the suit land. At the most the agreement could be considered as a transaction of loan which was given the colour of the agreement to sell. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the defendant had executed an agreement RSA No.1869 of 2011 3 to sell dated 9.1.2004 in favour of the plaintiff? OPP 2. Whether the plaintiff has been ready and willing to perform his part of the contract? OPP 3. Whether the plaintiff is entitled to seek a specific performance of sale agreement? OPP 4. Whether the suit is not maintainable in the present form? OPD 5 Whether the plaintiff has no cause of action to file the present suit? OPD 6. Relief. Thereafter, an additional issue was framed by the first appellate court on 3.3.2009 to the following effect: 6(a) Whether the defendant had taken a loan of Rs.20,000/- on interest from the plaintiff and the agreement of sale in question was the outcome of a fraud and misrepresentation, if so, its effect? OPD Both the parties led evidence. Both the courts below decided in favour of the plaintiff. Arguments heard. Record perused. Plaintiff has sought specific performance of the agreement dated 9.1.2004 which has been duly proved by Surjan plaintiff (PW 4). Both the attesting witnesses namely Bharat Singh (PW 2) and Braham Singh (PW 3) have also proved the execution of RSA No.1869 of 2011 4 the agreement. However, the plea taken by the defendant is that he took a loan of Rs.20,000/- from the plaintiff and due to financial constraints he could not repay the same and now he was willing to repay but the plaintiff did not accept it. Because the plaintiff is in advantageous position, therefore, he converted the blank paper and stamp papers into the cash receipt and agreement and misused the photographs given by the defendant to him for securing loan advance for the defendant. From the bare reading of the written statement, it transpires that the defendant admits his signatures on agreement Ex.P.1 and receipt Ex.P.2. Thus, onus lay heavily upon the defendant to prove as to how the plaintiff came into possession of the photographs and how it was a loan transaction. The said onus could be discharged either by leading evidence by the plaintiff or from the evidence led by the defendant or other attending circumstances but the plaintiff has failed to shift the onus, in any manner. The credibility of Braham Singh (PW 3) and Surjan (PW 4) could not be challenged. They are consistent in their statements. Documents Ex.P.1 and Ex.P.2 do not, in any way, indicate if they related to a money transaction. It is on the stamp paper drafted by an Advocate. It bears two photographs on the front page besides his thumb impressions. Similarly, there is a photograph along with his thumb impression on the receipt with regard to payment of Rs.65,000/-. Both the documents were executed on the same day i.e. RSA No.1869 of 2011 5 9.01.2004. As a matter of fact, it appears that due to steep hike in prices in the area of Faridabad, the defendant appears to have become greedy and now wants to convert agreement to sell into a money transaction but the same stands unsupported by any cogent evidence. There is overwhelming evidence in order to establish that the plaintiff has always been ready and willing to perform his part of the contract. There is affidavit Ex.PW1/2 dated 27.02.2004 executed by the plaintiff, presented before Sub Registrar, Ballabgarh indicating his readiness and willingness to execute the sale deed as per agreement Ex.P.1. On that day, the plaintiff had attended the office of Sub Registrar, Ballabgarh. Affidavit Ex.PW 1/1 also reveals that he was ready with the balance sale consideration as also the money for spending over stamp fee and registration etc, but the defendant did not come forward to execute the sale deed. In the case of Gurnam Kaur V. Charanjit Kaur and Anr. (2009-4) the Punjab Law Reporter 143 (P&H) in almost the similar circumstances, where agreement to sell was for Rs.6.40 lacs and seller received earnest money of Rs.5 lacs and the date of execution of sale deed being a holiday, the buyer had reached the office of the Sub-Registrar on the next working day with balance amount but the seller had not come present, this court had held that the courts below had rightly inferred that the seller was not willing to perform his part of the contract and decree for specific performance of the RSA No.1869 of 2011 6 contract was upheld. In any case, in view of the concurrent findings recorded by both the courts below who after appreciating evidence in right perspective, have duly observed that it was an agreement to sell and not a money transaction, this court hesitates to interfere with such findings of fact. No substantial question of law arises for determination in this appeal. Dismissed in limine. (A.N.Jindal) 21.11.2011 Judge rp