Back
2023 Supreme(P&H) 2435
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Harvinder Singh & Anr. – Appellants
Versus
Krishan Kumar (Deceased) Through Lrs. – Respondents
RSA-5644 of 2019 (O&M)
Decided On : 06-09-2023
Mr. Ajay Jain, Advocate; For the Appellant
Mr. Shailender Kashyap, Advocate for Respondent.
Headnote:(A) Specific Relief Act, 1963 - Sections 20 and related provisions - Appeal for specific performance of agreement to sell - The courts below granted relief without a thorough examination of evidence and failed to consider the plaintiff's history of securing agreements for loan repayment - The plaintiff's claim for possession was denied based on evidence of the defendant proving the agreement was a collateral security. (Paras 1, 14, 15, 21)
Facts of the case:
The suit concerned an agreement to sell land for Rs. 13,00,000/- with disputed payments made as earnest money. The defendant claimed the document was for loan security while the plaintiff sought specific performance after delays in executing the sale deed. (Paras 4, 5, 18)
Findings of Court:
The decree for specific performance was reversed, substituting a decree for the refund of Rs. 11,60,000/- with specified interest, recognizing the evidence that the agreements were collateral for loans. (Paras 21, 22)
Issues: Whether evidence must be incorporated in pleadings and can it be accounted independently - Did the courts err in their discretion to decree specific performance? (Paras 2, 10)
Ratio Decidendi: The unamended Specific Relief Act’s discretionary nature must be applied, and evidence supporting the defendant's claims was validly admitted. The plaintiff's history of agreements raised doubts about his bona fides, requiring reevaluation of the case's merits. (Paras 14, 15)
Result: Appeal allowed; decrees for possession reversed, and a decree for the refund issued.
| Table of Content |
|---|
| 1. brief outline of relevant facts. (Para 3 , 4) |
| 2. evidence presented by both parties. (Para 5 , 6 , 7) |
| 3. assessment of discretion in granting specific performance. (Para 8 , 14 , 15) |
| 4. arguments regarding the execution of agreements. (Para 10 , 11) |
| 5. court observations on evidence and arguments. (Para 12 , 13 , 16 , 17 , 18 , 19) |
| 6. decree for refund rather than specific performance. (Para 21) |
| 7. conclusion of appeal. (Para 22 , 23) |
JUDGMENT
Mr. Anil Kshetarpal, J.
The correctness of the concurrent findings of fact arrived at by the Courts below while decreeing the plaintiffs suit for possession by way of specific performance of the agreement to sell has been assailed by the defendant in this second appeal.
2. In the considered opinion of the Court, the following question of law arises for adjudication in the present case:-
1. Whether the evidence is required to be incorporated in the pleadings?
3. In order to comprehend the controversy involved in the present case, the relevant facts, in brief, are required to be noticed.
4. The execution of the registered agreement to sell dated 29.01.2009 with respect to 16 kanal land and one half share in the Dhani (constructed area) and 1/6th share in the tube-well for total consideration of Rs. 13,00,000/- on receipt of Rs. 5,00,000/- as the earnest money is not in dispute. As per the terms of the agreement to sell, the sale deed was to be executed on or before 15.09.2009. On 06.02.2009, another sum of Rs. 6,60,000/- was paid to the defendant by the plaintiff against the endorsement on the agreement to sell. On 14.09.2009, the date for execution of the sale deed was extended by one year to 15.05.2010. The defendant claims that the aforesaid document was executed as a collateral security for the repayment of loan, which he borrowed from the plaintiff. The defendant admits that he borrowed Rs. 5,00,000/- on 29.01.2009, whereas, Rs. 6,60,000/- on 06.02.2009. The defendant also claims that he offered to repay the loan amount, however, the plaintiff refused to receive the same on return of the documents on receipt of the borrowed amount. On 14.06.2011, the suit was filed.
5. In the oral evidence, the plaintiff in order to prove his case, examined PW-1 Sh. Ashwani Kumar, the scribe, PW-2 Sh. Madu Ram, the marginal witness to the agreement to sell and writing dated 14.09.2009, PW-3 Sh. Krishan Kumar, plaintiff. In the documentary evidence, he produced an agreement to sell dated 29.01.2009, writing dated 14.09.2009 (Ex.PW1/B), affidavit dated 17.05.2010 (Ex.P-2), rapat roznamcha dated 13.09.2000 (Ex.P-3), mutation No.4443 (Ex.P-4) and copy of jamabandi for the year 2011-12 (Ex.P-5).
6. On the other hand in the oral evidence, defendant appeared in evidence as DW-2. They also examined DW-2 Sh. Nand Kishore, DW-3 Sh. Karnail Singh, DW-4 Sh. Sadhu Singh, DW-5 Sh. Gurnam Parshad, DW-6 Sh. Mahender Singh Ex-Sarpanch and present Nambardar, DW-7 Sh. Inder Lal Ex-Sarpanch and DW-8 Sh. Gujraj Singh, the marginal witness of the agreement to sell dated 29.01.2009.
7. In the documentary evidence, the defendants produced Ex.D-1 and Ex.D-2 (the extracts of the register of the scribe) in order to prove that similar agreements to sell were executed by various persons in favour of the plaintiff. Ex.DW1/C is the statement of Sh. Bhupinder recorded on 06.07.2013 in State v. Vikram, FIR No.177, dated 06.07.2013, under Sections 148 , 149, 323, 506, 427, 325 IPC, PS Sirsa Sadar. Ex.D-3 is the agreement to sell dated 06.04.2009 executed by Sh. Karnail Singh in favour of Sh. Krishan Kumar (plaintiff) with respect to the land measuring 20 kanal situated in village Naja Dela Kalan, Sirsa, on receipt of Rs. 17,50,000/- out of total sale consideration of Rs. 20,00,000/-. Ex.DW3/A is the collector's rate, whereas, Ex.DW3/C is the affidavit of Sh. Krishan Kumar dated 25.11.2009, and Ex.D-4 is the agreement to sell dated 16.03.2009 executed by Sh. Nand Kishore (DW-2) in favour of Sh. Krishan (the plaintiff) in resp
