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PUNJAB & HARYANA HIGH COURT
Paramjeet Singh, J.
Subhash Chander and Ors. - Appellant
Versus
Active Promoters Pvt. Ltd. - Respondent
R.S.A. No. 256 of 2013 (O&M)
Decided On : 03-03-2014
Fraud - Specific Performance of Contract - Punjab Stamp Rules, 1934 - Suspicious Circumstances - Refund of Amount - [FRAUD] - [Specific Performance of Contract] - [Punjab Stamp Rules, 1934] - [Suspicious Circumstances] - [Refund of Amount]
Fact of the Case:
The plaintiff filed a suit for specific performance of a contract for the sale of land. The defendant denied the existence of the agreement and alleged that it was a false and fabricated document. The Court of first instance decreed the suit in favor of the plaintiff, which was affirmed by the lower appellate Court. The defendant appealed the decision.
Finding of the Court:
The Court found that the agreement to sell was clouded with suspicious circumstances, as the document did not bear the signature or the name and address of the scribe, and the plaintiff failed to prove the contents of the document. The Court also allowed the defendant's application to place and prove documents on record, indicating the price of the property at the relevant time, and found apparent fraud with respect to the consideration for the land. The Court modified the relief to refund the amount deposited in the account of the defendant with interest.
Issues: The issues included the existence and validity of the agreement to sell, the effect of non-mentioning of reasons for declining the application for placing and proving documents on record, and the entitlement of the plaintiff to a refund of the amount deposited in the defendant's account.
Ratio Decidendi: The Court held that the burden of proving the execution of the agreement was on the plaintiff, and adverse inference was drawn against the plaintiff for failing to produce the authorized person who allegedly entered into the agreement. The Court also found that the agreement was clouded with suspicious circumstances and apparent fraud, and modified the relief to refund the amount deposited in the defendant's account with interest.
Final Decision: The Court set aside the judgments and decrees of the Courts below, modified the relief to refund the amount deposited in the defendant's account with interest, and allowed the appellants to move an application for restitution of possession on deposit of the ordered amount.
C.M. No. 2803-C of 2014
1. This application has been moved by the respondent under Order 41 Rule 27 of the Code of Civil Procedure to place on record sale deed dated 08.12.2014 (Annexure A-1) and report dated 20.02.2014 (Annexure A-2) regarding handing over possession of the suit land in execution of the impugned judgments and decrees passed by the Courts below being subsequent events. Having heard learned counsel for the parties and for the reasons stated in the application, the same is allowed and Annexures A-1 and A-2 being subsequent events, are taken on record.
RSA No. 256 of 2013
2. This regular second appeal by LRs of defendant - Sewa Ram is directed against the judgment and decree dated 19.03.2012 passed by learned Civil Judge (Junior Division), Gurgaon, whereby the suit for specific performance of the contract and for permanent injunction filed by respondent/plaintiff was decreed as well as against the judgment and decree dated 06.12.2012 passed by learned Additional District Judge, Gurgaon, whereby the appeal preferred by appellants has been dismissed.
3. For convenience sake, reference to parties is being made as per their status in the civil suit.
4. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for specific performance of contract on the basis that defendant had entered into an agreement dated 06.07.2005 to sell the suit land measuring 82 kanals 12 marlas situated in village Naurangpur, Tehsil and District Gurgaon, fully detailed and described in para No. 2 of the plaint, at the rate of Rs. 20.00 lacs per acre, in favour of the plaintiff on whose behalf deal was struck by one Surender Sharma. It is further averred in the plaint that total sale consideration of the land in question was Rs. 2,06,50,000/- out of which Rs. 50.00 lacs were paid by plaintiff to the defendant as earnest money vide cheque No. 82905 dated 06.07.2005 drawn on Bank of India, New Delhi, which was allegedly encashed by defendant. Target date for execution of sale deed was fixed as 06.10.2005. It was also mentioned that land in question is free from any type of encumbrance and is not subject-matter of any agreement or any kind of litigation. It is further averred by the plaintiff that due to increase in prices of real estate in the area, defendant turned dishonest and wanted to resile from the transaction. On the target date, representative of plaintiff i.e. Surender Sharma remained present in the Tehsil office along with remaining sale consideration of Rs. 1,56,50,000/- and stamp papers worth Rs. 12,39,000/-, which were purchased on 01.08.2005 but the defendant did not turn up on the date fixed. Hence, suit was filed.
5. It needs to be mentioned here that initially notice was issued to defendant but the same was received back unserved due to incomplete address, which is clear from the zimni order passed by Civil Judge (Junior Division), Gurgaon, on 19.10.2005. Thereafter notices were issued on various dates. Ultimately, after many dates notice issued to defendant was received back with the report of refusal followed by affixation. The Court deemed it sufficient service and proceeded ex parte against the defendant. The case was fixed for ex parte evidence, which is clear from the zimni order dated 19.05.2010. Thereafter an application was moved on 09.06.2010 for setting aside ex parte order, which was allowed and ex parte proceedings were set aside vide order dated 07.01.2011 and case was fixed for filing the written statement.
6. Thereafter defendant filed written statement and took various preliminary objections regarding cause of action, maintainability, locus standi to file the present suit, suit being false and frivolous. It was pleaded that plaintiff was estopped from filing the present suit by its own act and conduct. On merits, defe
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