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
Naresh Kumar ….Respondent


Present: Mr.Neeraj Kumar, Advocate, for the appellant.

Mr.Ajay Jain, Advocate, for the respondent.


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


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


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,


23.04.2021 (G.S. SANDHAWALIA)
Sailesh JUDGE
Whether speaking/reasoned: Yes

Whether Reportable: Yes

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