Heard Shri Rajeev Singh and Shri Sanjeev Singh, learned counsel for the appellant and Shri Pramood Jain, learned counsel for the respondent who has appeared through caveat.
This is defendant's Second Appeal arising out of Original Suit No.200 of 2002 which was decreed by Civil Judge (Senior Division), Baghpat on 11.8.2010 and defendant was directed to execute the sale deed of the property in dispute pursuant to registered agreement for sale dated 14.3.2001 after receiving the balance sale consideration. Against the said decree defendant-appellant filed Civil Appeal No.46 of 2010 which was dismissed by Additional District Judge (Special), Baghpat on 26.11.2011 hence this Second Appeal.
In paragraph 15 of the affidavit filed in support of stay application in this appeal it has been stated that pursuant to the impugned decree sale deed has also been executed by the Executing Court in favour of the respondent on 12.1.2012. Copy of the sale deed is Annexure-8 to the affidavit.
Defendant denied having executed the agreement for sale dated 14.3.2001. He stated that he had gone to some Advocate for getting Kisan Credit Card and in that regard he had obtained his signatures on some documents which were later on used for preparing the agreement for sale. The courts below held that the defendant failed to show that on non-issuance of the credit card what further steps he took. He also did not state that he approached the said Advocate again when credit card was not issued to him. Learned counsel for the appellant argued that this was an irrelevant circumstance (non-pursuing the matter of issuance of credit card). However, in my opinion this was a very relevant factor. In case defendant had gone to some Advocate for getting credit card and his signatures had been obtained at some blank papers then obviously he would have afterwards inquired about the credit card. The findings regarding execution of the registered agreement of sale are findings of fact and do not suffer from any error of law. Learned counsel for the appellant has attempted to show some minor contradiction/ discrepancies in the oral statements of the plaintiff's witnesses. However, this is not the scope of Second Appeal and in any case I do not find any vital contradiction. The argument that lower appellate court did not record any independent finding of fact is also erroneous. Reference has been made to the oral statements and other evidence on record by the lower appellate court.
The agreed sale consideration was Rs.1.88 lacs out of which Rs.1.36 lacs had been paid as earnest money as mentioned in the agreement for sale. Learned counsel for the appellant has argued that plaintiff did not have remaining amount ready with him hence requirement of Section 16-C of Specific Relief Act was not fulfilled . In this regard it is further argued that in case plaintiff had with him the balance sale consideration ready, he should have deposited the same before the court at the time of filing of the suit. However, under the explanation to Section 16-C it is specifically provided that it is not essential for the plaintiff to deposit in court any money except when so directed by the court. Averments of readiness and willingness were made in paragraph-8 of the plaint copy of which is Annexure-3 to the affidavit filed in support of the stay application. Plaintiff also stated that he had also given a notice to the defendant on 16.4.2002 which was served on 19.4.2002 requesting the defendant to be present before Sub Registrar on 15.5.2002 and on the said date plaintiff remained present before the Deputy Registrar but the defendant did not turn up.
The argument of learned counsel for the appellant that some positive evidence of availability of money with the plaintiff should have been given is also not acceptable. Plaintiff stated that he was always ready and willing to get the sale deed executed after paying the balance sale consideration of Rs.52,000/-. More than 70% of the sale consideration had already been paid as earnest money.
Accordingly, I do not find my error in the impugned findings. However, in my opinion during pendency of the suit i.e. for 8 years prices of immovable property had vastly escalated. Supreme Court In Pratap Lakshman Muchandi and others vs. Shamlal Uddavadas Wadhwa and others A.I.R. 2008 S.C. 1378 has held that in such scenario some more amount should be directed to be paid by the plaintiff.
In view of this the court suggested to the learned counsel for the respondent-plaintiff Shri Pramod Jain for payment of Rs.1 lac more.
Before lunch when the matter was taken up Shri Jain, learned counsel stated that he agreed for payment of some more reasonable amount by the plaintiff but Rs.1 lac was rather on the higher side. However, during lunch period he consulted his client on telephone and after lunch stated that plaintiff was ready to pay Rs.1 lac more.
Accordingly, findings recorded by the courts below are affirmed. However, the decree passed by the courts below is slightly varied to the extent that plaintiff is directed to pay Rs.1 lacs more. This amount shall positively be deposited before the trial court for immediate payment to the defendant - appellant within two months from today failing which the agreement as well the decree and the sale deed shall stand automatically rescinded under Section 28 of Specific Relief Act.
Second appeal is disposed of/decided as above.
Order Date :- 10.2.2012 RS