Judgment:
Vinod K. Sharma, J.
1. This is defendant's regular second appeal against the decree of specific performance passed in favour of the plaintiff/respondent.
2. The plaintiff filed a suit for specific performance for enforcement of agreement dated 12.8.1997, vide which Sh. Kishori Lal (now deceased) predecessor-in-interest of the appellant had agreed to sell one house bearing municipal No. F/363 situated at Vaidan Street, near Halu Bazar and Old Anaj Mandi, Bhiwani. Out of the total sale consideration of Rs. 60,000/-, Rs. 40,000/- was paid as earnest money by way of cheque and the balance amount was to be paid at the time of execution of conveyance deed. The date fixed for execution was 11.2.1998. The plaintiff claimed that he was always and still willing to perform his part of contract, whereas defendant continued delaying the matter, and thereafter refused to execute the sale deed.
3. The suit was contested by the defendant/appellant as LR of Sh. Kishori Lai, wherein it was claimed that the plaintiff/respondent had not come to the Court with clean hands, as he suppressed the true and material facts and, therefore, was not entitled to relief of specific performance. It was claimed that on the pretext of acknowledgement of debt of Rs. 40,000/- (Rupees fourty thousand only), the plaintiff/respondent got signatures of defendant on blank papers and thereafter fraudulently forged the agreement of sale. It was claimed that the property in dispute was ancestral property, in which the appellant/defendant had interest by birth. It was claimed that there was no legal necessity for sale of the house. It was also claimed that the market value of the property was Rs. 4,00,000/- (Rupees four lac only) at the time of agreement to sell and, therefore, the price fixed was inadequate. Plea of fraud was also raised.
4. After filing of the replication, the learned trial Court framed the following issues-
1. Whether Kishori Lal (deceased defendant) predecessor-in-interest of the defendants, entered into an agreement to sell the disputed house on 12.8.1997 for a sale consideration of Rs. 60,000/- and received Rs. 40,000/- as earnest money? OPP
2. Whether the plaintiff was and is still ready and willing to perform his part of contract? OPP
3. Whether the suit is not maintainable in its present form and the same is barred by provisions of Code of Civil Procedure and Specific Relief Act? OPD.
4. Whether the plaintiff has no locus standi as well as cause of action to file the present suit? OPD.
5. Relief.
5. On appreciation of evidence, the learned trial Court has recorded a concurrent finding of fact that deceased Kishori Lal predecessor-in-interest of the appellant had executed an agreement to sell for sale consideration of Rs. 60,000/- and he received Rs. 40,000/- as earnest money. A concurrent finding has also been recorded that the plaintiff/respondent was and is still ready and willing to perform his part of contract.
6. In view of findings recorded on issues No. 1 and 2, issues No, 3 and 4 were decided against the defendant/appellant and in favour of the plaintiff/respondent.
7. The judgment and decree passed by the learned trial Court has been affirmed by the learned lower appellate Court.
8. It may also be noticed here that defendant/appellant did not affix the Court fee, in spite of opportunity having been given. The learned lower appellate Court, thus, held that the appeal was not maintainable for not affixing the Court fee. The learned lower appellate Court also held that the plea of the defendant/appellant that the property was ancestral, also could not be accepted, as the defendant/appellant failed to prove the ancestral nature of the property.
9. Mr. Mani Ram Verma, learned Counsel, appearing on behalf of the appellant, contends that this appeal raises the following substantial questions of law:
1. Whether the judgment and decree passed by the learned Courts below is outcome of mis-reading of documentary and oral evidence, in recording a finding that the agreement was for sale of property instead of it being security for loan?
2. Whether the decree was against public policy, as the agreement was grossly unfair?
10. In support of the substantial questions of law, the learned Counsel for die appellant contended that, in fact, sum of Rs. 40,000/- was paid as loan and not as earnest money for sale of house, as would be clear from the fact that though the agreement was executed on 12.8.1997, the time fixed for execution of sale deed was 11.2.1998, even though merely a sum of Rs. 20,000/- was left as balance payment.
11. The contention of the learned Counsel for the appellant cannot be accepted, as the appellant himself was the signatory to the agreement and furthermore he was the person, who purchased the stamp papers for agreement to sell. The contention of the learned Counsel for the appellant that it was a loan transaction, therefore, cannot be accepted. There is no evidence on record to differ with the concurrent finding of fact recorded by the learned Courts below.
12. The learned Counsel for the appellant contended that the agreement was harsh, therefore, the learned Courts below should have granted alternative relief of refund of the earnest money with damages and interest instead of granting a decree for specific performance. In support of this contention, the learned Counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in Manohar Lal alias Manohar Singh v. Maya : (2004-2) 137 P.L.R. 542.
13. On consideration, I find reliance of judgment in Manohar Lal alias Manohar Singh v. Maya (supra) to be totally mis-conceived. On the facts and circumstances of said case, the Hon'ble Supreme Court upheld the order passed by the High Court directing refund of consideration money, by holding that the plea of the defendant feat the plaintiff had obtained thumb impression on some blank papers could not have been lightly rejected. Whereas in the present case, positive evidence was on record showing the due execution of the agreement of sale and furthermore, it was defendant/appellant who had purchased the stamp papers, for execution of agreement to sell.
14. The learned Counsel for the appellant also placed reliance on the judgment of the Hon'ble Supreme Court in Parakunnan Veetil Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Ors. : A.I.R. 1987 Supreme Court 2328, in support of his contentions.
15. This judgment is also not applicable, as the Hon'ble Supreme Court has held that the Courts should see that litigation is not used as instrument of oppression, to have unfair advantage to the plaintiff. It is not understood, what unfair advantage the plaintiff was to gain by enforcement of agreement to sell. Once it was proved that predecessor in-interest of the defendant/appellant had executed agreement to sell and received earnest money, and further that the plaintiff/respondent was always willing to perform his part of contract, the plaintiff/respondent was entitled to relief claimed.
16. Finally, reliance was placed on the judgment of the Hon'ble Supreme Court in Kanshi Ram v. Om Parkash Jawal and Ors. : (1996-2) 113 P.L.R. 337 (S.C.) to contend that the learned Courts below should have ordered alternative relief.
17. This judgment also has no application to the facts of the present case. The Hon'ble Supreme Court in Kanshi Ram v. Om Parkash Jawal and Ors. (supra) has held that rise in prices of the property during the pendency of suit cannot be a sole consideration for refusing to grant the decree of specific performance.
18. However, as in the said case, the plaintiff had claimed alternative relief of damages, which was granted by the learned Courts below, the Hon'ble Supreme Court held that the decree of specific performance was unjust to the appellant in view of the facts and circumstances of said case.
19. However, in the present case, the defendant/appellant was not honest. He denied the execution of the agreement and claimed it to be forged and fabricated document, though he himself was signatory to the agreement and had also purchased stamp papers,' for its execution.
20. It is well settled law that in the normal circumstances, the contract for sale of immovable property is to be specifically enforced, as damages or alternative relief of recovery cannot be said to be adequate compensation.
21. It is only in cases, where specific case is made out under Section 20 of the Specific Relief Act, that the relief of specific performance, can be declined. No case of hardship was pleaded or proved, rather dishonest plea of denial was taken.
22. The substantial questions of law raised are answered against the appellant. No merit.
Dismissed.