Heard Shri B.N.Singh, learned Senior Counsel assisted by Shri Akhtar Ali, learned counsel for the appellant and Shri M.K.Gupta, and Shri Ram Kaushik, learned counsel for the respondent who have appeared through Caveat.
This is defendant's Second Appeal arising out of Original Suit No.282 of 2004 which was filed by the plaintiff-respondent for specific performance of an agreement for sale dated 23.12.2003. The suit for specific performance was dismissed by Civil Judge (Senior Division), Kairana, Muzaffar Nagar on 11.2.2010. However, the defendant was directed to return Rs.57,450.00 to the plaintiff alongwith 6% interest. Against the said judgment and decree plaintiff-respondent filed Civil Appeal No.17 of 2010 which was allowed on 29.11.2011 by Additional District Judge, Court No.6, Muzaffar Nagar. Suit for specific performance of the agreement was decreed.
According to the plaint allegations through an agreement for sale dated 23.12.2003 defendant had agreed to sell his agricultural land comprised in plot no.48 area 0.924 hectare for Rs.4 lacs out of which Rs.3 lacs were received by him as earnest money. The sale deed was to be executed within a year. In the registered agreement for sale it was shown that earnest money of Rs.3 lacs had already been received by the defendant in the village. The defendant took up the defence that infact it was a transaction of a loan and defendant was to receive Rs.2 lacs only which amount was also not paid to him. The further case of the defendant was that the plaintiff had assured him that the document which was being signed by the defendant on 23.12.2003 was a document pertaining to the loan and the loan of Rs.2 lacs would be paid to the defendant afterwards in the village. The plaintiff had further stated that as the land in dispute was mortgaged hence on the request of the defendant the amount of loan which the defendant had taken from the bank (Rs.57,450/-) and in lieu whereof he had mortgaged the land in dispute with Sehkari Gramin Vikas Bank Branch Shamli, Muzaffar Nagar was deposited by the plaintiff on 28.5.2004. This deposit was admitted by the defendant however he asserted that without there being any request by him in this regard, plaintiff on his own deposited the amount.
Defendant could not explain that why he did not initiate any proceeding for recovery of Rs.2 lac which according to him were to be paid immediately after execution of the deed dated 23.12.2003. He also could not explain that what was the necessity for the plaintiff to deposit in the Bank the loan which was to be paid by the defendant. The Trial Court held that it was the duty of the plaintiff to adduce solid evidence for payment of the amount of Rs.3 lacs as in the agreement itself it was mentioned that Rs.3 lacs were not paid before the Sub-Registrar but had already been paid in the village. In the agreement defendant admitted that amount of Rs.3 lacs had already been received by him. This admission was as good as payment before the Sub-Registrar Defendant did not deny his signatures and photo on the agreement for sale. Defendant had pleaded that he was under the impression that he was executing mortgage deed.
Defendant adduced examination in chief of two witnesses Om Prakash and Ram Kumar on affidavits however, they were not produced for cross examination Om Prakash was attesting witness of the agreement. The Lower Appellate Court recorded finding of fact that Rs.3 lacs had been paid to the defendant, he had executed agreement for sale and that there was no discussion regarding execution of mortgage deed and that no fraud was played by the plaintiff. The Lower Appellate Court also placed reliance upon the presumption of correctness of contents of the registered documents. However, the Lower Appellate Court held in favour of the defendant that the amount of Rs.57,450/- was not deposited by the plaintiff in the Bank on the request of or with the consent of the defendant hence the said amount was not liable to be adjusted in the balance sale consideration of Rs.1 lac. Accordingly suit was decreed by the Lower Appellate Court for specific performance of agreement for sale on payment of Rs.1 lac as balance sale consideration.
I do not find least error in the impugned findings which are basically findings of fact. Regarding readiness and willingness Lower Appellate Court held that plaintiff was fully ready and willing, that on 22.12.2004 plaintiff was present before the Sub Registrar with the amount for execution of the sale deed and earlier also notice had been given by him through his Advocate for appearance of the defendant on 13.7.2004 and on 13.7.2004 also plaintiff was present before the Sub-Registrar but the defendant did not turn up.
Accordingly, there is no error in the impugned findings of the Lower Appellate Court which are basically findings of fact. No question of law has wrongly been decided. The Following authorities cited by learned counsel for the appellant do not advance appellant's case.
1. 1998 (89) R.D. 206 Dularey vs. D.D.C.
2. 2003 (94) RD 704 Balwant Singh vs. Raj Singh
3. 2006 (3) A.W.C. 2512 (SC) Prem Singh vs. Birbal However, in my opinion under the facts and circumstances of the case it is a fit case where some additional amount should be directed to be paid by the plaintiff. On the suggestion of the court and after some hesitation learned counsel appearing for the respondents have agreed for payment of additional amount of Rs.1 lac after deducting Rs.57,450/- i.e. Rs.42,550/- as balance sale consideration and Rs.1 lac more. However, in my opinion plaintiff should pay Rs.2 lac in total.
Accordingly, it is directed that if the remaining sale consideration of Rs.1 lac as directed by the Lower Appellate Court to be paid by the appellant, has not yet been paid then total amount of Rs.2 lacs shall positively be deposited within two months by the plaintiff-respondent before the Trial Court. However, if the amount of Rs.1 lac as directed by the Lower Appellate Court has already been deposited then only Rs.1 lac more shall be deposited by the plaintiff-respondent. On deposit of this amount sale deed shall immediately be executed in favour of the plaintiff-respondent. If this amount is not deposited within two months then the agreement and the decree shall stand automatically rescinded under Section 28 of Specific Relief Act.
The direction for payment of additional amount of Rs.1 lac is based partly upon the agreement of the learned counsel for the respondent and in respect of Rs.54,750/- it is direction of the court in view of Supreme Court authority reported in Pratap Lakshman Muchandi and others vs. Shamlal Uddavadas Wadhwa and others A.I.R. 2008 S.C. 1378 wherein it has been held that as the market value of immovable property increases very rapidly hence some additional amount must be directed to be paid while decreeing the suit for specific performance.
Consequently the impugned decree is substantially affirmed but varied slightly to the extent of payment of Rs.2 lacs more. Second Appeal is disposed of accordingly at the admission stage.
Order Date :- 25.1.2012 RS