Shakuntla Devi vs Amar Chand

N.K. Kapoor, J.—This is unsuccessful Defendant's regular second appeal.

Plaintiff filed suit for specific performance of agreement to sell dated 8.6.1981 in respect of house situated in Mohalla Kishanpura, Jalandhar City on payment of Rs. 5,000/ - the balance amount payable by the Plaintiff to the Defendant and in the alternative suit for recovery of Rs. 45,000/ -. According to the Plaintiff he entered into an agreement with the Defendant for sale of house for a valuable consideration of Rs. 45,000/ -, vide agreement dated 8. 6. 1981. A sum of Rs. 40,000/ - was paid by the Plaintiff to the Defendant at the time of execution of the agreement to sell and the remaining amount was to be paid at the time of execution and registration of the sale deed. Sale deed was to be executed within one year from the date of execution of sale deed. In this agreement it was stipulated that in case of breach of contract, the Plaintiff could get the sale deed executed and registered by filing a suit for specific performance or he can get the double of the amount paid by him and in case the Plaintiff fails to discharge his obligation his earnest amount was to be forfeited. According to the Plaintiff, he was ever ready and willing perform his part of the contract whereas the Defendant breached the essential terms of the contract. A registered notice was issued to the Defendant for effecting sale but the same was received back un-delivered. Plaintiff reached the office of Sub Registrar on 6.6.1982 with an amount of Rs. 12,000/ - but the Defendant did not reach the office of Sub Registrar. Even the intimation sent to the Defendant by telegram met with no success.

Defendant appeared and contested the suit. Execution of agreement was denied. It was further stated that her signatures were subsequently converted into agreement to sell. Otherwise too, agreement to sell is an unconscionable transaction. Reference was also made to the dispute between Mohallawal and the Defendant with respect to the collections of the amount of the committee. Plaintiff took under advantage of his position and, so this agreement was took executed. This way the agreement to sell is result of under influence, coercion and is hit by the provision of Section 15 and 16 of the Indian Contract Act. Receipt of amount of Rs. 40,000/ - was also denied.

On the pleadings of the parties following issues were framed:

Whether the Defendant executed an agreement to sell the house in favour of the Plaintiff? If so, on what terms and condition? OPP.

If issue No. 1 is proved, whether the agreement dated 8.6.1981 is the result of under influence and without any free consent? If so, its effect? OPD.

Whether the Plaintiff remained over ready and willing to perform his own part of the contract? OPP.

Whether the Plaintiff is entitled to the specific performance of the agreement dated 8.6.1981? OPP.

If issue No. 4 is proved, whether the Plaintiff is entitled to the recovery of Rs. 45,000/ - from the Defendant? If so, on what account? OPP.

Relief.

Issue No. 1 was decided in favour of the Plaintiff. Under issue No. 2, the trial Court held that it is not proved that agreement to sell dated 8.6.1981 is the result of undue influence or the same is without free consent. So, this issue was decided against the Defendant and in favour of the Plaintiff. Under issue No. 3 the Court held that the Plaintiff was ready and willing to perform his part of the contract. Under issue No. 4 the Court held that the Plaintiff is entitled to specific performance to sell. Issue No. 5 was decided against the Defendant. In view of the Court's finding in respect of issue No. 4, suit of the Plaintiff was decreed subject to Plaintiffs depositing a sum of Rs. 5,000/ - to be paid to the Defendant within a month from the passing of the judgment.

Lower appellate Court once again examined the matter on fact as well as law. Court after carefully considering the submissions found no ground to vary or set aside the conclusion arrived at by the Court below and so dismissed the appeal.

Challenging the concurrent findings recorded by the Courts below, counsel for the Appellant terms these to be wholly un-warranted and otherwise un-sustainable in law for the reason as the same are based on no evidence or inadmissible evidence. According to the counsel, it is quite unthinkable that a person will part with Rs. 40,000/ - out of total consideration of Rs. 45,000/ - at the time of execution of agreement to sell especially when as per his own case he was not put in possession of any part of the house. Otherwise too, as per evidence on record the property in dispute is worth more than few lacs whereas as per agreement to sell it was decided to be sold for a sum of Rs. 45,000/ - only. Such an agreement per se can be termed to be unconscionable. In fact, there was some dispute between the Appellant and other residents of Mohalla Kishnapura on account of non-auctioning of committees, for which Appellant was arrested and it is at this precise time Plaintiff and one Harish Sahni undertook to help the Appellant and in these circumstances were able to get her signatures on few blank papers. So, in the context of the present case the Courts below have erred in law in ordering specific performance of agreement dated 8.6.1981.

The basis of the claim of Plaintiff is agreement to sell dated 8.6.1981. To prove this document Plaintiff examined Badri Nath P.W.2, the petition writer and Gulshan Kumar and Rajesh Kumar the witnesses to this document. Their testimony has been believed by the Courts below. Even before me, no argument has been advanced by the counsel for the Appellant with regard to the deposition of the witnesses of the agreement to sell. Thus, there is no manner of doubt that the Courts below rightly came to the conclusion that an agreement to sell came into existence as agreed by the parties. Concededly, a sum of Rs. 40,000/ - was paid at the time of execution of agreement. Thus, the consideration too stands proved. Reason for parting with the house has also come on record in the shape of statement of the parties and their witnesses. In fact, Defendant's son floated lottery and had collected a sufficient amount from the inhabitants of the locality. Since, he was unable to pay back despite request of the concerned persons for return of their amount which itself was a source of dispute and initiation of some criminal proceedings. It is in this background that the Appellant thought of wiping out the debts of her son by entering into an agreement to sell the house. There is also a reference to an earlier agreement with one Gulshan Kumar in respect of this very property and the Appellants having received a sum of Rs. 15,000/ - from him. since this agreement did not mature, amount taken from Gulshan Kumar was also paid i.e. sum of Rs. 15,000/ -. Viewed in this background and also keeping in view that the agreement to sell sands proved according to law, I find no infirmity in the findings of the Courts below and so find the submissions made by the counsel for the Appellant in this regard to be devoid of substance.

Counsel for the Appellant as a last resort argued that in case the Court comes to the conclusion that a valid agreement to sell came into existence all the same one cannot lose right of the fact that vide this agreement the only house of the Appellant stands sold and so the Court instead of ordering specific performance of agreement, ought to have granted the alternative relief prayed by him for the recovery of Rs. 45,000/ -. I find this submission too devoid of any merit. u/s 10 of the Specific Relief Act no doubt a discretion vests with the Court as to whether contract is ordered to be specifically enforced yet in the context of the present case payment of money cannot be termed to be adequate. On account of the interim stay granted the Court the decree has not been executed i.e. for almost last 15 years the Plaintiff has been denied his legitimate claim to become owner of the property and of its possession whereas the Appellant has retained a substantial part of the consideration i.e. Rs. 40,000/ - out of Rs. 45,000/ - for these 15 years. Thus, the Appellant has neither any claim in law nor in equity. Thus, finding no merit in the appeal the same is dismissed.

No order as to costs.