IMPORTANT POINT
The court reaffirmed that the terms of a contract must be established by the written document, and oral evidence cannot contradict its terms, as per Sections 91 and 92 of the Evidence Act. Additionally, the doctrine of lis pendens prevents property transfer during ongoing litigation.

JUDGMENT :

Kshitij Shailendra, J.

1. Heard Shri B.D. Pandey, holding brief of Shri Ashok Kumar Gupta, learned counsel for defendant-appellant and Ms. Rama Goel Bansal, learned counsel for plaintiff-respondent No. 1.

2. A registered agreement for sale dated 03.12.1993 was executed in respect of agricultural land covered by Gata Nos. 547 and 574, measured differently, in between the plaintiff and the defendant. The period for executing the sale deed was agreed upon as one year from the date of agreement. After the said period expired, another registered agreement dated 06.12.1994 was executed in respect of the same property and, thereby too, the defendant agreed to sell the same in favour of the plaintiff, but when the latter did not adhere to the terms of the agreement and, despite notice issued by the plaintiff, sale deed was not executed by the defendant, Original Suit No. 324 of 1996 was instituted by respondent No. 1 claiming a decree for specific performance of registered agreement(s) with an alternative relief of refund of earnest money with interest.

3. The defence of defendant No. 1 (appellant) was that the agreement was not executed for selling the property, but it was a transaction of loan and a sum of Rs.41,000/- was given as loan amount to him, but the plaintiff fraudulently got the said agreement executed as an agreement for sale.

4. The trial court found force in the defence of the defendant as regards the nature of transaction and held that it was an understanding about loan. While reaching to the said conclusion, the trial court referred to different portions of cross-examination of PW-1 much emphasising on that portion of the said cross-examination, in which the plaintiff had stated that interest at the rate of Rs.20/-per Rs.1000/- was agreed upon between the parties. With the said finding, coupled with observation that the plaintiff was not ready and willing to get the sale deed executed as he was a labourer and stated in his oral testimony that he used to earn meagre wages and all his earnings were deposited by him in the bank, the trial court arrived at a conclusion that the plaintiff was not entitled to get a decree for specific performance. It, however, vide judgment and decree dated 02.05.2009, decreed the suit for alternative relief directing the defendant to refund a sum of Rs.75,000/- along with 10% interest to the plaintiff.

5. Two appeals were preferred against the judgment and decree of the trial Court. While Civil Appeal No. 31 of 2009 was filed by the plaintiff being aggrieved by non-grant of decree for specific performance of the agreement(s), Civil Appeal, being Cross Appeal No. 65 of 2015, was filed by the defendant No. 1(appellant) being aggrieved by the decree of refund of money.

6. The first Appellate Court has allowed the appeal filed by the plaintiff and dismissed the cross appeal filed by the defendant. It has recorded in the judgment that the defence of defendant No. 1 stating the agreement as a transaction for loan and that he had returned the sum taken from the plaintiff in December, 1995, could not stand substantiated by any oral or documentary evidence. The Appellate Court elaborately dealt with the said defence and also observed that had the defendant returned the amount taken from the plaintiff, he would have taken steps to get the agreement cancelled, but no such step was taken by him. It also recorded that though, according to the defendant, there was a written document executed as regards refund of money, but the same was not filed by him. Accordingly, adverse inference was drawn by the lower Appellate Court against the defendant-appellant.

7. The Appellate Court also noted the defence of the defendant that in the event of execution of sale deed, he would suffer hardship. While discussing the said aspect, the Appellate Court observed that when the plaintiff, apprehending execution of a sale deed by the defendant in teeth of the agreement(s), moved an application and affidavit during the