RSA No.388 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.388 of 2010(O&M) Date of decision: 1.2.2010 Shivalik Stone Crusher ......Appellant(s) Versus Kishan Singh and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.K. Jain, Advocate for the appellant. Rakesh Kumar Garg, J. CM No.1101-C of 2010 For the reasons mentioned in the application, delay of 12 days in filing this appeal is condoned. CM stands disposed of. CM No.1102-C of 2010 Application is allowed subject to all just exceptions. CM No.1103-C of 2010 Application is allowed subject to all just exceptions. Documents are taken on record. RSA No.388 of 2010(O&M) This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for recovery against him has been decreed along with interest @ 6% per annum from the date of institution of the suit till its realization. As per the averments made in the plaint, the appellant entered into an agreement to sell stone crusher along with machinery, land, RSA No.388 of 2010(O&M) 2 material including electric connection etc. to the plaintiff-respondent No.1 for a sale consideration of Rs.27,25,000/- vide agreement dated 1.3.2000. The sale deed was to be executed on or before 25.6.2000. Rs.9 lacs were to be paid to the defendant on 1.3.2000 at the time of execution of the agreement and Rs.3 lacs were to be paid through Bank thereafter. It was further alleged that Rs.2 lacs were to be paid to the defendant on 17.2.2000, thereafter, Rs.5 lacs were to be paid on 29.2.2000 and Rs.2 lacs were paid in cash on 1.3.2000. Thus, a total sum of Rs.9 lacs was paid to the appellant. As per the agreement, Rs.10 lacs were to be paid to the defendant-appellant on 30.4.2000. The plaintiff-respondent No.1 issued two cheques of Rs.5 lacs each totaling Rs.10 lacs to the defendant- appellant with the condition that he shall transfer two shares in the name of plaintiff-respondent No.1. However, the defendant-appellant failed to do so and the said cheques were not encashed by him. As per the agreement dated 1.3.2000, the possession of the stone crusher was handed over to the plaintiff-respondent No.1 by the defendant-appellant on 1.3.2000. He started the work and collected the material of worth Rs.4 lacs to run his business. On 8.5.2000, the defendant-appellant with the help of other persons took the possession of the stone crusher forcibly from the plaintiff and the material worth Rs.3 lacs belonging to him was also taken by the appellant. Thereafter, the appellant agreed to sell the stone-crusher to defendant-respondent No.2 and also gave the possession to him. On the stipulated date, the plaintiff appeared before the Sub Registrar, Ropar for getting the sale deed executed in his favour. The appellant was having the knowledge that plaintiff-respondent No.1 was present in the Tehsil Complex, but he did not turn up deliberately to execute the sale deed in his favour. The plaintiff- respondent filed a suit for permanent injunction in the Court of Civil Judge RSA No.388 of 2010(O&M) 3 (Senior Division), Ropar. In that case, the counsel for the appellant appeared and made statement that the appellant will not sell the property till 30.6.2000 and the suit was withdrawn by the plaintiff. The second purchaser Pabla Engineering Works filed a suit for specific performance of the agreement on 10.8.2000 and the Court ordered to deposit Rs.24,25,000/- in the Court. Since the plaintiff, did not want to involve himself in the litigation, the suit for recovery was filed. Upon notice, the defendant-appellant appeared and filed written statement taking various preliminary objections. On merits, execution of the agreement to sell with the plaintiff-respondent No.1 was admitted. It was also admitted that sale deed was to be executed on 30.6.2000. However, receipt of Rs.9 lacs was denied. It was further submitted that the cheques amounting to Rs.9 lacs mentioned in the agreement were got encashed by the plaintiff himself and nothing was paid to the appellant. Only a sum of Rs.3 lacs were paid to him vide Cheque No.CA/26-358711 dated 15.3.2000 and no other amount was paid. It was further submitted that the plaintiff did not want to purchase the stone crusher and he was not ready and willing to perform his part of the agreement. He did not pay an amount of Rs.10 lacs on 30.4.2000 as stipulated in the agreement and in these circumstances, the entire earnest money was to be forfeited and therefore, the plaintiff was not entitled to recover anything. A separate written statement was filed by respondent No.2 denying the averments made in the suit. On the basis of the averments made, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled for recovery of Rs.16 lacs on the basis of agreement dated 1.3.2000 as RSA No.388 of 2010(O&M) 4 alleged? OPP 2. Whether suit is not maintainable in the present form?OPD 3. Whether the plaintiff is entitled to interest? If so, at what rate? OPP 4. Relief.” After hearing learned counsel for the parties and going through the entire record on the file, the trial Court decided all the issues in favour of plaintiff-respondent No.1 and the suit of the plaintiff was decreed with costs. It was further held that the plaintiff shall be entitled to interest @ 9% per annum from the date of institution till its realization. Feeling aggrieved with the impugned judgment and decree passed by the trial Court, the appellant filed an appeal which was dismissed by the Lower Appellate Court vide impugned judgment and decree dated 25.9.2009. However, rate of interest was reduced to 6% per annum. Still not satisfied, the present appeal has been filed by defendant No.1 challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the judgment and decrees of the Courts below are contrary to the evidence/document produced on record of the case. The Courts below have failed to consider the same, hence, non-consideration of the aforesaid material would be a ground to set aside the judgment and decrees of the Courts below because infirmity of excluding and including the aforesaid evidence which if considered in the proper perspective would have led to a conclusion contrary to the one taken by both the Courts below and therefore, the concurrent finding of fact recorded by the Courts below is liable to be interfered with. Elaborating further, learned counsel for the RSA No.388 of 2010(O&M) 5 appellant submitted that there was enough material on record that the plaintiff-respondent had encashed the cheques amounting to Rs.9 lacs much prior to the date of the execution of the agreement dated 1.3.2000 and the aforesaid evidence has been totally ignored by the Courts below and have not discussed the relevant evidence. It has been further argued by the learned counsel for the appellant that the plaintiff-respondent has failed to prove his readiness and willingness to perform his part of the contract as he had not proved that he was ready with the balance payment and necessary registration charges besides other expenses. Moreover,the plaintiff instead of choosing to get the sale deed executed in his favour on the basis of the agreement to sell dated 1.3.2000, had chosen to file a suit for recovery of the cheque amount as mentioned in the agreement and therefore, from his conduct, it is proved on record that he was not ready and willing to perform his part of the contract. Once that was so, the plaintiff-respondent was not entitled to any relief and in fact, he was not entitled to recover anything. In support of his case, learned counsel for the appellant has relied upon a judgment of the Hon’ble Supreme Court reported as Dubaria v. Har Prasad and another (2009) 9 SCC 346. On the basis of the argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the adjudication of the suit by ignoring the evidence on record is valid in the eyes of law and is in consonance with the law laid down by Hon'ble Supreme Court of India in Dubaria v. Har Prasad and another (2009) 9 SCC 346? (ii) Whether the impugned judgments and decrees RSA No.388 of 2010(O&M) 6 could be passed against the facts and evidence placed on file?” I have heard learned counsel for the appellant, however, I find no force in the contentions raised by him. It is an admitted fact that the appellant executed the agreement to sell in question. He also admitted the fact regarding the receipt of Rs.3 lacs from the plaintiff-respondent on 15.3.2000. The dispute between the parties is with regard to the receipt of earnest money of Rs.9 lacs through cheques as mentioned in the agreement to sell dated 1.3.2000. The main argument raised by the learned counsel for the appellant is that no amount of Rs.9 lacs was paid by the plaintiff- respondent to the appellant as aforesaid; rather the amount under the three cheques as mentioned in the agreement dated 1.3.2000 was withdrawn by the plaintiff-respondent himself as the cheques in question were issued for “self”. A perusal of the agreement to sell dated 1.3.2000 shows that Rs.9 lacs were received by the appellant on 1.3.2000 from the plaintiff-respondent as recited in the aforesaid agreement. Since the cheques for “self” were from current account of the plaintiff-respondent, it cannot be said that the appellant had not received any amount from the respondent. The plea of the appellant that the cheques were got encashed by the plaintiff-respondent himself and nothing was paid to him does not appeal to reason as in the agreement to sell in question itself, it is mentioned that the appellant had received Rs.9 lacs. Moreover, the agreement to sell dated 1.3.2000 being a written document, oral evidence is not permissible regarding non-payment of the earnest money. Even otherwise, the appellant has not placed on record any evidence to substantiate his plea that he had not received the aforesaid amount. Assuming for the sake of arguments, the appellant had RSA No.388 of 2010(O&M) 7 not received the aforesaid cheques and had not received the amount of Rs.9 lacs by encashing the same, there was no logic that he will put his signatures on the agreement without receiving the payment of earnest money. Since the appellant admitted the execution of agreement to sell dated 1.3.2000 and had put his signatures on the aforesaid agreement in token of its correctness, it cannot be said that the appellant had not received the payment of Rs.9 lacs on 1.3.2000 as recited in the agreement. Admittedly, the possession of the stone crusher was handed over to the plaintiff-respondent on 1.3.2000 in pursuance of the agreement to sell dated 1.3.2000 and if no earnest money was paid at the time of execution of the agreement to sell, then the appellant would not have handed over the possession of the stone crusher. It is well established that if a contract is reduced into writing, the oral evidence is not sufficient to rebut the terms and conditions which have been reduced into writing in the contract. Under Section 91 of the Evidence Act, there is an absolute bar to the production of any oral evidence to prove the terms of a contract which have been reduced into writing. When execution of an agreement is admitted, presumption can be drawn that consideration as recited therein has passed in the absence of any rebuttal evidence. In these circumstances, the contention raised by the learned counsel for the appellant regarding the non-receipt of earnest money is without any merit and is liable to be rejected. There is no dispute with the proposition of law as envisaged in the judgment of the Hon'ble Apex Court in Dubaria's case (supra). However, the same is not applicable in the present case as the appellant has failed to prove that the amount of Rs.9,00,000/- was got encashed by the respondent. RSA No.388 of 2010(O&M) 8 So far as the readiness and willingness of the plaintiff- respondent is concerned, it has been fully proved on record that he remained present in the office of Sub Registrar on 30.6.2000 and on 3.7.2000 but the appellant failed to turn up to execute the sale deed in his favour regarding the property in dispute. As such, the plaintiff-respondent was entitled to recover the earnest money paid by him. Thus, I find no merit in the contentions raised by the learned counsel for the appellant. No substantial question of law arises in this appeal. Dismissed. February 1, 2010 (RAKESH KUMAR GARG) ps JUDGE