RSA No.2524 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2524 of 2006 (O&M) Date of decision: 18.11.2010 M/s Sri Prem Properties (P) Ltd. ......Appellant(s) Versus Tasveer Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sharad Kumar Yadav, Advocate for the appellant. Mr. Rameshwar Malik, Advocate for the respondents. Rakesh Kumar Garg, J.(Oral) This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby while accepting the appeal filed by the defendant-respondent, judgment and decree of the trial Court was set aside and suit of the plaintiff-appellant for possession by way of specific performance of the agreement to sell in question, was dismissed. While defending the suit, a stand was taken by the defendant- respondent that he never entered into the agreement as alleged neither he received any amount of ` 25,000/- as earnest money however, he had thumb marked on some blank papers on the asking of the plaintiff. The trial Court decreed the suit holding that the defendant- respondent has not disputed his thumb impression on the alleged agreement to sell in question and further he has failed to substantiate his plea of fraud. However, the Lower Appellate Court while setting aside the aforesaid finding on reappreciation of evidence reached to a conclusion that the agreement to sell in question was not a genuine document. The RSA No.2524 of 2006 (O&M) 2 relevant paras of the judgment of the Lower Appellate Court reads as follows: “After considering the submissions made above by the learned counsel for the parties and going through the record of the case very carefully, this Court is of the considered opinion that appeal deserves to be allowed and the impugned judgment and decree passed by the Court below cannot be upheld. The question that arises for consideration is whether agreement dated 20.1.1996 was genuine and executed by Dhani Ram in favour of the plaintiff-company. By this agreement, defendant- Dhani Ram is alleged to have received a sum of Rs.25,000/- as earnest money, out of which he allegedly took a sum of Rs.1000/- through a cheque bearing No.885783 dated 20.1.1996 drawn on Punjab and Sind Bank, New Delhi and rest of the amount of Rs.24,000/- in cash on the date of the execution of the said agreement. He is further alleged to have undertaken to execute the sale deed by 20.7.1996 in favour of the plaintiff. So far as this agreement dated 20.1.1996 Ex.P5 in favour of the plaintiff is concerned, I do not see that there is any ring of genuineness about it. No wonder this agreement was ante dated as there is no material on the record wherewith to verify that this agreement was executed really on 20.1.1996. First of all, it is not clear as to where this agreement was executed. As per the averments made in para No.2 of the plaint, this agreement was executed at Gurgaon, RSA No.2524 of 2006 (O&M) 3 whereas Satish Gahlot PW2, Chairman of the plaintiff- company having its registered office at Najjafgarh, New Delhi and through whom the present suit was instituted, during his cross-examination has clearly stated that this agreement was scribed in his office by Sh. S.K. Singla, Advocate. Whether or not this agreement was actually scribed by Sh. S.K. Singla, Advocate is also not clear from the record because neither there are any averments made in the plaint in this behalf nor was he produced by the plaintiff its evidence. His non production certainly raises an adverse inference against the plaintiff that this agreement has not been drafted by him at the instance of defendant-Dhani Ram. Moreover, the agreement does not bear the signature of Sh. S.K. Singla, Advocate and thus, it cannot be said that it has been drafted by the said Advocate. Then who else had drafted the agreement is a question which was totally ignored and not considered by the learned trial Court. It is also not clear from this agreement as to from whom and from where its stamp was purchased because no stamp vendor was produced by the plaintiff-company who could state about the date when this stamp was sold to defendant-Dhani Ram. It lay upon the plaintiff to prove that the agreement dated 20.1.1996 was a genuine document and it was genuinely executed on 20.1.1996 by Dhani Ram and further that there was no ante dating of this agreement. Plaintiff has failed to discharge this onus. Plaintiff could discharge this onus RSA No.2524 of 2006 (O&M) 4 by producing the person who had scribed this agreement and also the stamp vendor, who had sold the stamp papers on which the agreement alleged to be dated 20.1.1996 was scribed. There is also no evidence on the file to prove that defendant-Dhani Ram had thumb marked the agreement Ex.P5 in presence of the scribe. Rather it has come in the statement of Mahesh Kumar PW2, one of the attesting witnesses of the said agreement, that when he attested the agreement it was already scribed and Dhani Ram also thumb marked the agreement in his presence at that time. He has further stated that date in the agreement was also inserted at that time in his presence, but who had inserted the date is not known to him. A glance over the agreement to sell dated 20.1.1996 Ex.P5 would reveal that the date 20.1.1996 in 13th line on page No. 1 and in the last line on page No. 2 of the said agreement appears to have been inserted lateron with some different pen and by different person other than the person who had scribed the same. One more circumstances which clearly establishes the ante dating of this agreement is that payment of Rs.1000/- out of total earnest money of Rs.25,000/- has been shown to be made through a cheque No. 885783 dated 20.1.1996 which fact appears to be totally unacceptable in the facts and circumstances proved on the record of the case. It is not disputed that another agreement to sell, photo copy of which is proved on record as Ex.D1, RSA No.2524 of 2006 (O&M) 5 was executed on 22.10.1996 by defendant-Dhani Ram in favour of the plaintiff regarding his some other land for a total sale consideration of Rs.13,44,960/-, out of which a sum of Rs.20,000/- was received by the defendant vide two cheques bearing Sr. Nos.885764 and 885765 both dated 20.1.1996 of Rs.10,000/- each and drawn on Punjab and Sind Bank, Najjafgarh, New Delhi. It could not be explained on behalf of the plaintiff as to how and under what circumstances the plaintiff had made payment of the said amount of Rs.20,000/- to the defendant through the above referred two cheques of 20.1.1996 when the agreement Ex.D1 was executed much later on 20.10.1996. It also does not appeal to the common sense that cheque bearing later number i.e. 885783 of Rs.1000/- would be issued on 20.1.1996 and the cheques bearing earlier numbers i.e. 885764 and 885765 would be issued later on by the plaintiff on 22.10.1996 at the time of the execution of the agreement Ex.D1 on 22.10.1996 regarding some other land of the plaintiff. This clearly proves that some fraud has been committed by he plaintiff regarding the agreement in question. Besides this, it will be seen that one thumb impression appears on page No.1 of the agreement Ex.P5 but no name has been written to indicate whose thumb impression is this. Similarly on page no.2 there is no mentioning of LTI under the thumb impression and further the thumb impression appears over the name of RSA No.2524 of 2006 (O&M) 6 Dhani Ram which fact in itself, suggest that a bogus agreement has been prepared without any notice and consent of Dhani Ram. In addition to all this, it may also be noted that there appears a line under the names of all the witnesses and the purchaser which fact would suggest that no signature was put and no thumb impression was made at the time of the alleged execution of the agreement. Another circumstances which makes the execution of the alleged agreement highly doubtful is that both its attesting witnesses namely Mahesh Kumar PW2 and Azad son of Siri Chand are in the relation of Satish Gehlot, Chairman of the plaintiff- company and they are totally unknown to defendant- Dhani Ram. It may also be noted here that in the photo copy Ex.D2 of the agreement to sell dated 20.1.1996 Ex.P5 (which copy is stated to have been supplied to the defendant by Satish Gehlot; PW2 as admitted by him during his cross-examination) there are no signatures either of the attesting witnesses or the purchaser and there is also no mention about the date of its execution. All these above discussed suspicious circumstances would thus lead to only one conclusion that there has been an ante dating of the agreement Ex.P5 with a view to defeat the rights of defendant Dhani Ram qua the land in question. Another important aspect to be noted in the case is that plaintiff has not succeeded in establishing that it was ready and willing to perform its part of the contract on the crucial date. As RSA No.2524 of 2006 (O&M) 7 per the agreement Ex.P5 dated 20.1.1996, the deed was to be executed by 20.7.1996, but the plaintiff did not contact the defendant between 20.1.1996 to 20.7.1996 and remained silent through out. Neither any notice was given to the defendant prior to 20.7.1996 nor anybody on behalf of the plaintiff-company attended the office of Sub Registrar, Gurgaon on 20.7.1996 which clearly shows that plaintiff was ready and willing to perform its part of the contract. As the learned trial court has committed a serious error in granting specific performance of the agreement in question which is proved not to be a genuine document.” In view of the aforesaid discussion, on the basis of which finding has been recorded against the appellant, it cannot be said that the aforesaid finding is a perverse finding so as to warrant interference of this Court in exercise of its power under Section 100 CPC. No substantial question of law arises. Dismissed. November 18, 2010 (RAKESH KUMAR GARG) ps JUDGE