Balkar Singh vs Gurdit Singh

Mahesh Grover, J.—The contention of the learned Counsel for the appellant is that the learned trial Court in para 17 of its judgment has observed as under:

In the light of above discussion, it is held that the defendant did execute the agreement Ex. P1 and writing for extension of time Ex. P2 and the same cannot be said to be a forged and fabricated and fraudulent document. All these issues are accordingly decided against the defendant and in favour of the plaintiff.

And despite the said observation it went on to hold that the agreement might have been got executed from the defendant as a measure of security. The following reasons were detailed by the learned trial Court for coming to the aforesaid conclusion:

i) Firstly, the agreement in question is not scribed by a regular deed writer nor any such deed writer has been produced as witness by the plaintiff;

ii) Secondly, despite having paid a sum of Rs. 1,80,000/- out of the total sale consideration of Rs. 2,80,000/-, the plaintiff did not insist upon getting the possession of the suit land. This fact is evident as by way of the present suit, the plaintiff has claimed the possession of the property in dispute which means that the possession was not delivered to him at the time of the execution of the agreement. This further shows that there was no intention of sale or purchase of land on the basis of the agreement and further that it was executed only as a measure of security for the refund of the money advanced through it;

iii) Thirdly, though the agreement was executed on 4.11.99 but the stipulated date for execution of the sale deed was fixed a year after i.e. on 3.11.2000 which was further extended to 27.12.2000. No explanation has been given in the writing Ex.P2 as to why the stipulated date was further deferred. Ordinarily, a person who has parted with a sum of Rs. 1,80,000/- on account of earnest money would insist upon immediate execution of the sale deed and would also insist upon at least getting the possession of the property. This further shows that the plaintiff did not intend to purchase the land in question.

It is the contended case of the appellant that when the findings regarding the validity of the agreement to sell have been categorically recorded, the finding thereafter regarding the same being for security purpose was totally erroneous. The findings were affirmed by the first Appellate Court and the alternate relief for recovery of the amount was granted to him in the following terms:

In the light of my findings on the aforesaid issues, the suit of the plaintiff is decreed in the alternative for recovery of Rs. 1,80,000/-. The plaintiff is further held entitled to interest at the rate of 9% per annum from the date of the suit till the date of the decree and with future interest at the rate of 6% per annum till the realization of the decretal amount. Decree sheet be drawn accordingly and file be consigned to the record room.

It is now contended by the learned Counsel for the appellant that the aforesaid findings are totally perverse. The grant of relief u/s 20 of the Specific Relief Act by exercising the discretion has resulted in great prejudice to the appellant.

During the course of arguments, it transpires that a Regular Second Appeal bearing No. 1625 of 2006 had been filed by the vendor and the respondent was arrayed as defendant in the suit filed by the appellant. In that appeal, the following order was passed:

This is defendant's appeal filed against the order dated 12.12.2005 passed by Additional District Judge, Ferozepur vide which judgment and decree of the trial Court granting alternative relief of Rs. 1,80,000/- has been affirmed.

Learned Counsel argued that the relevant documents are shrouded by suspicious circumstances. The respondent being a commission agent was in a position to get the thumb impression of the appellant on blank papers. It is further argued that another circumstance which shows that the documents are forged, is that the attesting witnesses are the close relations of the respondent.

The arguments raised by learned Counsel are without any force. Admittedly, the agreement to sell has been proved by the attesting witnesses and there is nothing on record to show that the same has been found to be forged. It is further argued that neither the deed writer nor stamp vendor has been produced. This argument also cannot be accepted, as non-examination of the above two persons does not create any doubt in the execution of the document.

Learned Counsel lastly argued that the interest awarded by the Courts below @ 9% per annum from the date of suit till the date of decree, is on the higher side, whereas, these days, all the Courts including the Apex court have been awarding 6% per annum interest. Accordingly, the judgments and decrees passed by the Courts below are modified only to the extent that plaintiff shall be entitled to interest from the date of suit till the date of decree as well as future interest @ 6% per annum.

Except the aforesaid modification in the rate of interest, the appeal fails and it is dismissed in limine.

A perusal of the aforesaid implies that the exercise of discretion by the learned trial Court u/s 20 of the Specific Relief Act has been affirmed with a minor modification regarding grant of rate of interest. In this view of the matter, once the findings which have been impugned in the present appeal have been affirmed, the present appeal cannot be answered. It is also to be noticed that the appellant was respondent in the aforesaid appeal. Since the findings in the aforesaid appeal impugning this very judgment have already been affirmed, the present appeal cannot be answered in favour of the appellant.