R. S. A. No. 2418 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2418 of 2010 (O&M) Date of Decision : August 12, 2010 Gurdeep Singh .... Appellant Vs. Suresh Chander and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjiv Gupta, Advocate and Ms. Sushma Chopra, Advocate for the appellant. Mr. Tribhawan Singla, Advocate for respondent no.1 – Caveator. * * * L. N. MITTAL, J. (Oral) : Gurdeep Singh – defedant no.1 having lost in both the courts below, has filed the instant second appeal. Respondent no.1 – plaintiff Suresh Chander filed suit against appellant and respondent no.2 alleging that defendant no.1 – appellant, as owner of the suit land measuring 13 kanals 16 marlas, agreed to sell the same to the plaintiff @ Rs.1,50,000/- per acre and received Rs.40,000/- as earnest money and executed agreement dated 30.12.1997 registered on R. S. A. No. 2418 of 2010 (O&M) 2 06.01.1998. Sale deed was to be executed up to 08.12.1999. The plaintiff went to the office of Sub Registrar on 08.12.1999 to get the sale deed executed in terms of the agreement, but defendant no.1 did not turn up. Thus, defendant no.1 committed breach of the contract, whereas plaintiff has always been ready and willing to perform his part of the contract. The plaintiff even sent telegraphic notice dated 08.12.1999 to defendant no.1 and also got affidavit attested to depict his presence in the office of Sub Registrar. The plaintiff accordingly filed suit for possession of the suit land by specific performance of the agreement. Defendant no.1 denied the plaint allegations. Defendant no.1 denied having agreed to sell the suit land to the plaintiff or having executed the agreement. Defendant no.1 pleaded that plaintiff is money lender and he advanced Rs.40,000/- to defendant no.1 on interest @ 2% per month and as security for the same, the plaintiff got signatures of defendant no.1 on some blank papers, which the plaintiff might have converted into the alleged agreement dated 30.12.1997 allegedly registered on 06.01.1998. The said agreement is result of fraud and misrepresentation. The plaintiff also forged another agreement relating to property of Balvir Kaur wife of defendant no.1. Various other pleas were also raised. Learned Civil Judge (Junior Division), Nakodar, vide judgment and decree dated 20.05.2008, decreed the plaintiff's suit. First appeal preferred by defendant no.1 has been dismissed by learned District Judge, R. S. A. No. 2418 of 2010 (O&M) 3 Jalandhar, vide judgment and decree dated 15.03.2010. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. The plaintiff himself appeared in the witness-box and examined deed writer Raj Kumar (PW-2), who scribed the impugned agreement and also examined Darshan Singh (PW-3) – attesting witness of the agreement. All of them have supported the plaintiff's version. On the other hand, defendant no.1 himself stepped into the witness box and stated according to his version. The plaintiff has led cogent evidence to prove the impugned agreement. The plaintiff besides himself appearing as witness, has examined scribe and one attesting witness of the agreement. On the other hand, defendant no. 1 has admitted his signatures on the agreement. Defendant no.1 has taken the plea of fraud. However, defendant no.1 has miserably failed to prove the plea of fraud. The sole self-serving bald and oral statement of defendant no.1 is not sufficient to prove the alleged fraud. Defendant no.1 has not examined any other witness in support of his plea of fraud. Defendant no.1 has not even examined his wife, who also signed the impugned agreement. There was no occasion for wife of defendant no.1 to sign the impugned agreement, if defendant no.1 had simply taken loan from the plaintiff. In addition thereto, there is also a significant fact that the impugned agreement stands registered. Registration of the agreement R. S. A. No. 2418 of 2010 (O&M) 4 further adds to its authenticity. It cannot be said that signatures of defendant no.1 had been obtained on blank papers and the agreement was forged and fabricated and then registration of the agreement was obtained without appearance of defendant no.1 before the Sub Registrar. Very high degree of proof was required to displace the registered agreement and to prove the same to have been obtained by fraud, but no evidence whatsoever has been led by defendant no.1 except his self-serving statement. Appellant has moved C. M. No. 9253-C of 2010 for production of additional evidence. Order Annexure P-A dated 17.11.1997 is sought to be produced to depict that before the execution of the agreement, defendant no.1 had been injuncted by temporary injunction from alienating the suit land. However, perusal of this order reveals that the land involved in the said order is not the suit land of the present suit. Even on specific inquiry, counsel for the appellant could not point out that the present suit land is involved in the land mentioned in the aforesaid order. Consequently, the application to produce this document is patently misconceived and frivolous. By way of additional evidence, the appellant also wants to produce copy of judgment dated 10.05.2010 (Annexure P-B). Said judgment has been passed in a suit filed by present plaintiff-respondent no.1 against one Rajinder Kumar and another for specific performance of agreement. In that case, the plaintiff made statement in the Court that he was not pressing his claim for possession of property of that suit and rather R. S. A. No. 2418 of 2010 (O&M) 5 claimed the alternative relief of recovery of money, which was decreed. It is beyond comprehension as to how this judgment is relevant in the instant case. If in that case, the plaintiff had some sort of understanding with defendant no.1 of that suit, or if for some other reason, the plaintiff in that suit did not press his claim for specific performance of the agreement of that suit, it does not help the appellant in the instant case in any manner. The said judgment is completely irrelevant. The application for additional evidence is thus without any merit and documents sought to be produced by way of additional evidence are not relevant in the instant case. Accordingly, the said application is dismissed. Learned counsel for the appellant vehemently contended that the plaintiff is a money lender. The contention is misconceived and untenable. In the written statement, defendant no.1-appellant simply pleaded that plaintiff is money lender without even alleging that the plaintiff had advanced money to other persons as well. Moreover, the fact that plaintiff is money lender is irrelevant to the instant suit, which has been filed for specific performance of the agreement to sell. Learned counsel for the appellant also contended that in view of Section 20 of the Specific Relief Act, relief of specific performance should not be granted to the plaintiff. The contention cannot be accepted. Defendant no.1 did not even raise the plea of applicability of Section 20 of the Specific Relief Act in the written statement. Judgment relied on by R. S. A. No. 2418 of 2010 (O&M) 6 counsel for the appellant in support of his contention in the case of Kanshi Ram vs. Om Prakash Jawal and others reported as (1996-2) P. L. R. 337 is not attracted to the facts and circumstances of the instant case. In the case of Kanshi Ram (supra), the Hon'ble Supreme Court awarded compensation of Rs.10,00,000/- to the plaintiff of that case as against earnest money of Rs.2,500/- only. Obviously, the appellant is not prepared to pay compensation to the plaintiff in the instant case in the same proportion. Even otherwise, this judgment does not lay down that compensation should be awarded instead of granting relief of specific performance of the agreement. On the other hand, in the peculiar facts and circumstances of that case, alternative relief of compensation was granted because the defendant himself offered the huge amount of Rs.10 lacs as compensation as against the earnest money of Rs.2,500/- only. In another judgment of this Court in the case of Prem Singh vs. Mangu Ram reported as 2004 (3) L. J. R. 241, it was held that if the Court comes to a finding that the agreement was executed only to secure loan and to ensure its repayment, it is only a money transaction without intention to sell and purchase the property and therefore, Court would be justified in passing a simple decree for recovery of the amount with simple interest. In the instant case, however, it cannot be said that impugned agreement was executed only to secure loan amount and to ensure its repayment and it was only a money transaction without intention to sell and purchase the suit land. R. S. A. No. 2418 of 2010 (O&M) 7 Learned counsel for the appellant also contended that the plaintiff claimed alternative relief of recovery of Rs.2,58,750/-. However, mere claiming of alternative relief does not disentitle the plaintiff to grant of relief of specific performance of the agreement. On the contrary, ordinarily, relief of specific performance of the agreement has to be granted and only in exceptional cases, the said relief may be declined by granting alternative relief of recovery. In the instant case, no exception has been made out. There is concurrent finding of fact by both the courts below against the appellant. The said finding is based on proper appreciation of evidence and cannot be said to illegal or perverse in any manner so as to warrant interference in the second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. August 12, 2010 ( L. N. MITTAL ) monika JUDGE