Punjab-Haryana High Court
Satish Kumar vs Naresh Kumar on 23 April, 2021 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-132-2021 (O&M)
Reserved on : 17.03.2021
Pronounced on: 23.04.2021
Satish Kumar ….Appellant
Versus
Naresh Kumar ….Respondent
CORAM: HON’BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr.Neeraj Kumar, Advocate, for the appellant.
Mr.Ajay Jain, Advocate, for the respondent.
G.S. SANDHAWALIA, J.
The defendant-appellant has preferred the present appeal
against the concurrent findings of the Courts below at Rewari, whereby the
suit for possession by way of specific performance has been decreed by the
Civil Court at Rewari on 19.07.2016 and upheld on 07.01.2020 by the
Appellate Court.
The agreement to sell in question was dated 13.10.2011
regarding property bearing house No.630 situated at Arjun Nagar, Rewari,
Tehsil & District, Rewari for the land measuring 5 marlas described in the
headnote of the suit. The sale consideration for the property in question was
Rs.22,00,000/- and Rs.4,75,000/- was received vide cheque dated
12.10.2011 and Rs.25,000/- was paid in cash and thus, a total sum of
Rs.5,00,000/- was received as earnest money by the defendant-appellant.
The last date to execute the sale deed was 31.03.2012 and the appellant was
to obtain NOC from the concerned authorities. Prior to the cut-off date, on
13.02.2012, an additional sum of Rs.3,50,000/- was received vide cheque.
In order to show his readiness and willingness, respondent got prepared a
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demand draft of Rs.13,50,000/- on 29.03.2012 for payment of balance
amount and purchased stamp papers of Rs.1,54,000/- on 26.03.2012 for
the purpose of execution of the sale deed. He had put in appearance
before the Sub-Registrar on 02.04.2012 as 31.03.2012 and 01.04.2012
were holidays. Since the defendant-appellant did not come present, a
legal notice dated 16.04.2012 (Ex.PW-1/1) had also been served upon
him for executing the sale deed. The Civil Suit was filed on 24.04.2012,
immediately thereafter.
In the written statement filed, the defence of the defendant-
appellant was that he had not entered into any agreement to sell regarding
the property in dispute and the same was a forged and fabricated
document and did not bear his signatures. It was also alleged that he had
moved a complaint dated 02.05.2012 to the police. There was denial
regarding receiving the earnest money both vide cheque and cash and the
plea was that the plaintiff had approached him to obtain the property in
dispute on rent and under that impression, signatures were got obtained
which were papers of lease.
On issues being framed, the plaintiff, who is a Bank
Manager, examined as many as 11 witnesses whereas the defendant
examined 13 witnesses.
The Trial Court, while deciding the first four issues in favour
of the plaintiff, came to the conclusion that the agreement in question had
been executed and the plaintiff was ready and willing to perform his part
of the agreement and was entitled for the decree of specific performance
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along with permanent injunction. The reasoning to come to the said
conclusion was that the agreement dated 17.10.2011 (Ex.PW-4/1) was
proved by examining Lekh Ram, PW-4 who was attesting witness of the
said agreement along with Rajeev Kumar Garg, Advocate, PW-5 who had
attested the same as Notary Public and also made entry in his register at
Sr.No.200. Similarly, PW-10, Subhash Chand, the Scribe of the
agreement was also examined.
The alternative defence of the defendant-appellant that the
agreement had been executed while he was in a state of intoxication was
rejected while noticing that the plea of fraud and forgery was to be
proved beyond the reasonable shadow of doubt. It was also noticed in
cross-examination that the defendant-appellant had admitted that he had
taken steps for obtaining the NOC from the Municipal Council, Rewari
(Ex.PW-6/9) in his own handwriting and once he had done so, it would
go on to show that the agreement was executed in a conscious state of
mind with the intention to sell the property and not for giving the same
on rent. It was also noticed that the defendant-appellant, in his cross-
examination, admitted that his signatures were there at all relevant point
of time in the agreement to sell and therefore, now could not stand by the
alternate plea in his affidavit by way of evidence that he had signed the
agreement in question on the pretext of obtaining a loan from the Bank.
Even otherwise, it was kept in mind that the plea of obtaining the loan
was beyond the pleadings and was not the initial case set up, as already
noticed earlier. The defendant’s wife, namely, Usha Devi herself having
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admitted the factum of the agreement, as per the document (Ex.PX/B)
and whose signatures were identified by none-else but by the defendant,
were also the reason to accept the agreement to sell. The testimony of
Mukesh Kumar, PW-10, the other attesting witness was discarded on the
ground that the witness seemed to be won over by the defendant-
appellant as he had given his statement that the signatures of the
defendant had been obtained on account of the fact that it was to be a
loan agreement paper. It was noticed that the defendant had appeared as
a surety for the brother of the said witness in a criminal case and
therefore, his relationship with the defendant being of that nature and his
obligation towards the defendant was the reason why the statement of the
said witness was discarded.
On the issue that whether there was readiness and
willingness on the part of the plaintiff-respondent, it was noticed that
apart from making payment of Rs.5,00,000/- at the initial stage as earnest
money, which had been received by the defendant-appellant in as much
as his account statements were produced and proved by PW-3, Vinay
Kumar Aggarwal, the Deputy General Manager of the Bank as Ex.PW-
3/1. Similarly, the factum of the cheques and the vouchers in favour of
the defendant-appellant were also produced as Exs.PW-3/2 and PW-3/3
wherein a sum of Rs.4,35,000/- was credited in his bank account. The
additional amount of Rs.3,50,000/- which was received by way of cheque
was also kept into consideration and the defence that the amount had
been deposited in the account of the defendant-appellant without his
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consent was rejected by holding that neither any offer was made by the
plaintiff-respondent to pay back the money nor he had issued any notice
to pay back the said money. It was further recorded that the earnest
money had been utilized for the purpose of clearing the loan account on
09.03.2012 by making the payments of Rs.3,75,000/- (Ex.PW-9/3) and
therefore, it would not lie in the mouth of the defendant-appellant that the
agreement had not been entered into since he had enjoyed the fruits of the
advance.
The plaintiff-respondent having purchased stamp papers
worth Rs.1,54,000/- on 26.03.2012, i.e. prior to the cut-off date, which
fact was verified by the testimony of PW-7, Gayan Yadav, Clerk of SBI,
Rewari who had proved the factum of the sale of stamp papers (Ex.PW-
7/1) which had been done vide transaction No.728. Similarly, on account
of the draft worth Rs.13,50,000/- (Ex.PW-8/1) being prepared which was
the balance amount would go on to show that the plaintiff-respondent
was having the sale consideration and was ready and willing to execute
the sale deed. The defendant-appellant had also been put to notice by
sending him a legal notice (Ex.PW-1/1) and by issuing a telegram which
was proved by examining PW-2, Bajrang Lal, Incharge Telegram Office.
Resultantly, the first four issues were decided in favour of the plaintiff-
respondent whereas issues No.5 to 9, the onus of which was upon the
defendant-appellant were decided against him as neither the same were
pressed nor any evidence had been laid in support of the same.
Resultantly, direction was issued to execute the sale deed within a period
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of 60 days from the date of the decree.
Counsel for the appellant has brought to the notice of this
Court that an application for additional evidence had also been filed
before the Appellate Court which was decided on the same day, i.e., on
17.01.2020 wherein it was sought to be proved that the criminal
complaint had been filed by the plaintiff against the defendant regarding
cheating which had been done with him and which had been withheld.
Similarly, RTI information regarding the presence of the plaintiff in the
bank where he was employed on the date of the alleged agreement was
also sought to be brought on record.
The Appellate Court, while deciding the application on the
same day while deciding the appeal, came to the conclusion that civil
proceedings are different from criminal proceedings and both had to be
adjudicated independently. Even otherwise, since the plaintiff was posted
as a Field Officer and was at liberty to go outside the bank at any time
and therefore, even if he was outside the bank at the time of execution of
the agreement would not make a difference, as such. The production of
the said evidence by way of additional evidence was also held not to be
of any useful purpose as it was not the case that the agreement was on
account of less sale consideration. Resultantly, the application had been
dismissed.
Counsel for the appellant, thus, stressed that after the
decision of the Trial Court also, the criminal complaint filed by the
plaintiff had been dismissed on 24.10.2016 and therefore, even the
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Criminal Court had found that there was no evidence of cheating and the
decree of specific performance should not have been ordered in favour of
the plaintiff and the dismissal of the appeal was also not justified.
On the other hand, counsel for the respondent has argued
that the defendant had received huge amount of money and his act and
conduct showed that the agreement had been entered into since he had
applied for the NOC and therefore, now, cannot be allowed to blow hot
and cold at the same time.
In the opinion of this Court, the said argument raised by
counsel for the appellant, is without any basis. Merely because the
plaintiff had also preferred criminal proceedings on the ground that the
accused had taken bank loan from ICICI Bank but had entered into an
agreement with him to sell the property, and he had been cheated, would
not be a ground to deny the benefit of the decree to him. The Criminal
Court had found that sufficient material had not been produced in the
form of evidence regarding the agreement in question and once the Civil
Court had decreed the suit, the complainant could not be allowed to blow
hot and cold at the same time. It was also noticed that the sale deed was
to be executed on 31.03.2012 and there was no impediment in getting the
sale deed executed and the complaint was, thus, filed mainly to harass the
accused. Even if the factum of the loan taken from ICICI Bank had been
concealed but the Civil Court had already held in favour of the
complainant-plaintiff and therefore, giving the benefit of doubt to the
accused-appellant, Satish Kumar had been acquitted of the charges under
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Section 468 IPC and also by coming to the conclusion that there was no
intention to cheat the complainant-plaintiff.
The Appellate Court, while examining the issues, also came
to the conclusion that there was a valid and legal contract between the
parties and the plaintiff was ready and willing to perform his part and it
would not cause any hardship to the defendant if the relief is granted to
the plaintiff. The contrary stand of the defendant of denying the
agreement to sell before the Courts below and taking the plea of loan
whereas the plea that the agreement was signed in the presence of the
attesting witnesses, was also kept in mind while rightly rejecting the
appeal. The argument raised that the signatures were obtained by the
plaintiff by misusing the papers for some loan document was also
negatived on the ground that nothing could be proved that any loan had
been taken from the branch when the plaintiff, was working.
While noticing that there was an admission that the
agreement bore the signatures and keeping in view the educational
qualification of the appellant, it was noticed that he was matric pass and
was not an uneducated person and a NOC had been obtained from the
concerned department, which further proved that the agreement had been
entered into and which had been partly acted upon by the appellant
himself. Similarly, the admission of the wife who had complained about
the agreement having been got entered was also taken into consideration
and the fact that out of Rs.22,00,000/-, a sum of Rs.5,00,000/- had been
received and the majority of the amount was by cheque apart from
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Rs.25,000/- which had been received by cash and the attesting witness
had also proved the agreement. The factum of the amount having been
utilized by the appellant led to the dismissal of the appeal.
The above narration of facts would go on to show that
though at an initial point of time, the plaintiff might have been aggrieved
against the factum that the appellant-defendant had concealed the factum
of loan outstanding against the said plot which led to the filing of the
criminal complaint also. But the fact remains that the appellant had
received a sum of Rs.5,00,000/- initially as earnest money out of which,
Rs.4,75,000/- was by way of cheque and thereafter, before the cut-off
date, he had received an additional amount of Rs.3,50,000/- in his bank
account, the factum of which had been proved. After the receipt of the
said amount, he had cleared the loan account due from the ICICI Bank,
which would go on to show that he had been acting towards the
agreement to sell which had been denied by him though claimed to have
been obtained under the state of intoxication. The alternate plea was,
thereafter, taken that the agreement was for the purpose of obtaining the
loan which was never the stance in the written statement.
It is settled principle that evidence beyond the pleadings
cannot be taken into consideration and neither there was any issue on this
aspect that the plaintiff had misused his capacity as a bank official to
advance a loan and no evidence had been produced to this aspect that he
had obtained the loan from SBI Bank in which the plaintiff was an
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employee. Reliance can be placed upon Rajasthan State TPT
Corporation & another Vs. Bajrang Lal 2014 (4) SCC 693 for the said
proposition. The same goes on to discredit the alternate plea which the
appellant is taking in order to wriggle out of his liability to execute the
sale deed in question after having received a sum of Rs.8,50,000/- which
was also duly proved by not only examining the bank statements but also
the witnesses regarding that aspect.
The readiness and willingness was also sufficiently proved
and the ability of the plaintiff to have the balance sale consideration
available as demand draft of Rs.13,50,000/- had also been prepared
before the cut-off date and stamp papers worth Rs.1,54,000/- had also
been purchased. The filing of the suit was also within a month and a half
after serving a legal notice dated 16.04.2012, asking the appellant to
execute the sale deed. All these factors combined would go on to show
that the Courts below have justifiably decreed the suit in favour of the
plaintiff. The amount having been utilized also for clearing of the loan
account would go on to show that the appellant, now, cannot turn around
and say that the amount was deposited without his consent. Admittedly,
he never, at any stage, offered to pay back the same or wrote to the Bank
officials as to how the entries had been made to his account. The said
action would only go on to prove that he was a willing recipient of the
earnest money and the additional amount thereafter and the agreement
stood duly proved not only by examining one of the attesting witnesses
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but also the scribe and the Notary.
The wife of the appellant herself had also opposed the
agreement by approaching the police whereas on one hand, the appellant
himself has also applied for NOC to sell the property. Thus, these factors
would go on to show that the agreement had been entered into for the sale
of the said property and almost 1/3rd of the amount had been received in
advance and therefore, it would not lie in the mouth of the appellant to
contend that the same had not been executed by him willingly.
It is settled principle that allegations of misrepresentation or
undue influence have to be given in full and precise particulars and then
duly proved under Order 6 Rule 4 CPC which has not been done in the
present case. Reliance can be placed upon the judgment of the Apex
Court in Shanti Budhiya Vesta Patel & others Vs. Nirmala
Jayprakash Tiwari & others 2010 (5) SCC 104.
Resultantly, keeping in view the above, no question of law
much less any substantial question of law arises which would warrant
interference by this Court and the present appeal is, accordingly,
dismissed.
23.04.2021 (G.S. SANDHAWALIA)
Sailesh JUDGE
Whether speaking/reasoned: Yes
Whether Reportable: Yes
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