2000 Supreme(P&H) 1547

PUNJAB & HARYANA HIGH COURT
M.L.Singhal, J.
Dalbir Singh Alias Vir Singh
Versus
Dalbir Singh
Regular Second Appeal No. 2557 of 1999,
Decided On : DECEMBER 15, 2000

A finding of fact arrived at concurrently by the two courts below, if works havoc to the cause of justice, cannot be allowed to be sustained.

Headnote:

SPECIFIC PERFORMANCE - AGREEMENT TO SELL - EXECUTION OF AGREEMENT - CONSIDERATION - UNDUE INFLUENCE - FIDUCIARY RELATIONSHIP - ONUS OF PROOF - EVIDENCE - APPRECIATION - CONCURRENT FINDINGS OF FACT - INTERFERENCE IN SECOND APPEAL - SUBSTANTIAL QUESTION OF LAW.

Fact of the Case:

Kartar Singh instituted a suit for specific performance of the agreement of sell dated 25-6-1987 against Dalbir Singh alias Vir Singh qua 5/7 share of land measuring 158 Kanal 1 marla i.e. 112 Kanal 18 marla situated in the revenue estate of village Kasor; in the alternative for the recovery of Rs. 70,000/- being consolidated damages, on the allegations, that Dalbir Singh had entered into an agreement to sell 5.7 share of land measuring 158 kanal 1 marla with him vide agreement dated 25-6-1987 @ Rs. 20,000/- per acre. A sum of Rs. 70,000/- was paid to him as earnest money on 25-6-1987. It was stipulated in the agreement that he will execute sale deed by 20-6-1988 on receipt of the balance sale price after adjustment of the loan due to the bank from him and the earnest money (ibid). In case of default on the part of Dalbir Singh in complying with the sale agreement, he (Kartar Singh) was entitled to Rs. 1.40 lac as consolidated damages being twice the amount of the earnest money or to enforce specific performance of the agreement on him (Dalbir Singh) through Court. It was further stipulated in the agreement that in case Kartar Singh defaulted, earnest money paid by him would stand forfeited. Expenses of stamp and registration were to be borne by Kartar Singh. Before the arrival of the stipulated date for the performance of the agreement, he (Kartar Singh) approached Dalbir Singh alias Vir Singh with the balance sale consideration along with the amount required for meeting the expense of stamp and registration so that sale deed could be executed but defendant Dalbir Singh alias Vir Singh avoided receiving the balance sale consideration and the amount required for the purchase of stamp and meeting registration charges. Notice dated 16-6-1988 was served upon him calling upon him to receive the balance sale consideration and the amount required for the purchase of stamp and meeting registration charges and execute sale deed. On 20-6-1988, he appeared before the Sub Registrar, Guhla with the balance sale consideration and the amount required for the purchase of stamp and meeting the registration charges and waited for the defendant the whole day long. Defendant, however, did not turn up. Eventually, the plaintiff got attested an affidavit from the Sub-Registrar, Guhla swearing these facts. It is alleged in the plaint that he was always ready and willing to go ahead with the agreement and perform his part of the agreement but the defendant was recalcitrant and committed breach thereof. It is further alleged in the plaint that he is still ready and willing to perform his part of the agreement and obtain sale deed from the defendant.

Finding of the Court:

The Court found that the agreement Ex. D1 was not the result of free-will and volition of Dalbir Singh alias Vir Singh and there was undue influence on him in the execution of that agreement whereby he had agreed to sell his entire holding, thus, leaving his family to starvation. The Court also found that agreement Ex. D1 was not an independent transaction but was in the nature of security obtained by M/s. Dalbir Singh Harish Kumar to secure the advances to be made by them to Dalbir Singh alias Vir singh.

Issues: 1. Whether the agreement dated 23/25-6-1987 is a sham, bogus, ineffective, inoperative, collusive, fraudulent, and a forged document as alleged in the plaint? 2. Whether the plaintiffs are entitled for the rendition of accounts from the defendants for the sale of agricultural produce for the crops of Sawni 1985 to Sawni 1987, if so its effect ? 3. If issue No. 1 is not proved whether agreement dated 25-6-1987 is validly executed document ? 4. If issue No. 2 is proved whether the defendants have always been ready and willing to perform their part of contract ? 5. If issue No. 2 is proved whether the plaintiff received a sum of Rs. 70,000/- as earnest money on the date of agreement as alleged ? 6. Whether the plaintiff had borrowed a sum of Rs. 28,000/- from the firm M/s Dalbir Singh Harish Kumar and the agreement in question was executed, if so its effect ?

Ratio Decidendi: 1. In a case of fiduciary relationship, the onus of proof would be greater on the respondent to prove that the agreement was the result of free will and volition of the appellant and no unfair advantage had been taken because of fiduciary character in which they were standing to each other. 2. If an agreement is proved to have been executed for consideration and the Court feels satisfied that specific performance should be ordered, the Court should order specific performance. 3. A finding of fact arrived at by the two courts below, if works havoc to the cause of justice, cannot be allowed to be sustained.

Final Decision: RSA No. 2557 of 1999 is accepted. In consequence, the judgments and decrees of both the courts below are set aside which they have passed in Civil Suit No. 730 of 1997. Civil Suit No. 730 of 1997 is dismissed. RSA No. 4155 of 1999 is dismissed. In consequence, the suit for declaration and rendition of accounts (Civil Suit No. 729 of 1997) remains dismissed as before.