Case: Kirpal Kaur and another Vs. Ritesh and others

submitted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement executed by Gurmeet Singh in favour of Jai Parkash. It is submitted that all the courts below have also believed the payment of sale consideration by the vendee to the vendor. It is contended that the said findings of facts recorded by all the courts below are not required to be interfered with by this Court, in exercise of powers under Article 136 of the Constitution of India. 4.2 It is further contended that, as such, it was never the case on behalf of the defendants before the trial Court that agreement dated 11.02.2004 was a loan agreement/security document. It is submitted that before the trial Court, the defendants totally denied the execution of the agreement dated 11.02.2004 by Gurmeet Singh and receipt of Rs.3,50,000/-. That for the first time before the first appellate Court, it was the case on behalf of the defendants that agreement dated 11.02.2004 was a loan agreement/security document. 4.3 It is further submitted by learned counsel appearing on behalf of the respondents – original plaintiffs that even the trial Court also held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a valuable consideration. However, the trial Court refused to pass a decree for specific performance solely on the ground that the agreement might have been executed as a security document for repayment of a loan. Therefore, the trial Court, instead of granting the relief of specific performance, passed a decree for return of earnest money. It is contended that the defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on the execution of the agreement dated 11.02.2004 between Gurmeet Singh and Jai Parkash and on the payment of Rs. 3,50,000/- paid by vendee to the vendor. That, in fact, the original plaintiffs preferred the appeal before the first appellate Court against refusal of the decree for specific performance. 4.4 It is urged that, both, the first appellate Court as well as the High Court have rightly observed and held that agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document. Therefore, the first appellate Court rightly passed a decree of specific performance which is rightly confirmed by the High Court. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement dated 11.02.2004 by Gurmeet Singh in favour of Jai Parkash. There are concurrent findings of fact recorded by all the courts below on the payment of part sale consideration of Rs.3,50,000/- by the vendee to the vendor. The trial Court refused to grant the relief of specific performance solely on the ground that the agreement might have been executed as a security document for repayment of loan. However, as observed hereinabove, even the trial Court also specifically held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a sale consideration. The plaintiffs preferred the appeal before the first appellate Court against refusal to pass a decree for specific performance. The defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on execution of the agreement and on payment of part sale consideration. Therefore, the findings recorded by the trial Court that the agreement was validly executed for a sale consideration has attained finality. 6. On a careful consideration of the agreement dated 11.02.2004, the first appellate Court and the High Court have observed and held that the agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document, as alleged by the defendants. We have also gone through and considered the agreement dated 11.02.2004. On reading the entire agreement, it cannot be said that the agreement dated 11.02.2004 can be said to be a loan agreement and/or security document. Merely because in the document the purpose of sale of the property was stated to be for the marriage expenses, the document which otherwise can be said to be an agreement to sell, will not become a loan agreement and/or security document. If the agreement as a whole is read, we find that it is an agreement to sell. Both, the first appellate Court and the High Court have rightly not accepted the case on behalf of the defendants that the agreement is a loan agreement and/or security document. At this stage, it is required to be noted that as such it was never the case on behalf of the defendants before the trial Court that the agreement is a loan agreement and/or security document. Before the trial Court, the defendants denied totally the very execution of the agreement and receipt of Rs.3,50,000/-, which has been rightly disbelieved even by the trial Court. It appears that before the first appellate Court, for the first time, the defendants came out with a case that the agreement is a loan agreement and/or security document. 7. Once the execution of the agreement to sell for a sale consideration has been believed and it has been found that Jai Parkash and thereafter, the original plaintiffs were always ready and willing to perform their part under the agreement and in fact they remained present before the Sub Registrar, Nilokheri on 10.02.2005, which has been established and proved, the decree for specific performance is rightly passed by the first appellate Court, which is rightly confirmed by the High Court. In the facts and circumstances, clauses (a) & (c) of Section 20 of the Specific Relief Act shall not be applicable and/or attracted. We are in complete agreement with the view taken by the first appellate Court and the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]At the outset, it is required to be noted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement dated 11.02.2004 by Gurmeet Singh in favour of Jai Parkash. There are concurrent findings of fact recorded by all the courts below on the payment of part sale consideration of Rs.3,50,000/- by the vendee to the vendor. The trial Court refused to grant the relief of specific performance solely on the ground that the agreement might have been executed as a security document for repayment of loan. However, as observed hereinabove, even the trial Court also specifically held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a sale consideration. The plaintiffs preferred the appeal before the first appellate Court against refusal to pass a decree for specific performance. The defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on execution of the agreement and on payment of part sale consideration. Therefore, the findings recorded by the trial Court that the agreement was validly executed for a sale consideration has attained finality.6. On a careful consideration of the agreement dated 11.02.2004, the first appellate Court and the High Court have observed and held that the agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document, as alleged by the defendants. We have also gone through and considered the agreement dated 11.02.2004. On reading the entire agreement, it cannot be said that the agreement dated 11.02.2004 can be said to be a loan agreement and/or security document. Merely because in the document the purpose of sale of the property was stated to be for the marriage expenses, the document which otherwise can be said to be an agreement to sell, will not become a loan agreement and/or security document. If the agreement as a whole is read, we find that it is an agreement to sell. Both, the first appellate Court and the High Court have rightly not accepted the case on behalf of the defendants that the agreement is a loan agreement and/or security document. At this stage, it is required to be noted that as such it was never the case on behalf of the defendants before the trial Court that the agreement is a loan agreement and/or security document. Before the trial Court, the defendants denied totally the very execution of the agreement and receipt of Rs.3,50,000/-, which has been rightly disbelieved even by the trial Court. It appears that before the first appellate Court, for the first time, the defendants came out with a case that the agreement is a loan agreement and/or security document.7. Once the execution of the agreement to sell for a sale consideration has been believed and it has been found that Jai Parkash and thereafter, the original plaintiffs were always ready and willing to perform their part under the agreement and in fact they remained present before the Sub Registrar, Nilokheri on 10.02.2005, which has been established and proved, the decree for specific performance is rightly passed by the first appellate Court, which is rightly confirmed by the High Court. In the facts and circumstances, clauses (a) & (c) of Section 20 of the Specific Relief Act shall not be applicable and/or attracted. We are in complete agreement with the view taken by the first appellate Court and the High Court.