Second Appeal No. 342 of 1989

7th January, 2014

Petitioner Counsel: Mr. ABHAY SAMBRE
Respondent Counsel: Mr. S.R. DESHPANDE

JUDGMENT

JUDGMENT :- This appeal is preferred against the judgment and decree passed in Regular Civil Appeal No. 170 of 1985 by the Additional District Judge, Buldana, on 14.8.1989, thereby confirming the judgment and decree passed in Regular Civil Suit No. 140 of 1980 by the Civil Judge, Jr.Dn., Mehkar, on 16.2.1985.

2. The original appellant Chintaman (now dead) was the original defendant in a suit filed against him for enforcing specific performance of contract by the respondent, the original plaintiff. For the sake of convenience, the parties to the present appeal are hereinafter referred to as plaintiff and defendant, as they were originally arrayed in the civil suit.

3. It was the case of the plaintiff that the defendant being owner in possession of agricultural land bearing survey no. 7, had agreed to sell 18 acres out of the same, situated at village Balsamudra, Tq. Mehkar, district Buldana, to him for a total consideration of Rs.21,600/-. According to the plaintiff, the defendant had struck an agreement with him at village Shendurjana, Tq. Mehkar, on 10.6.1977. It was agreed between them that an amount of Rs.15,000/- would be paid by the plaintiff to the defendant at the time of execution of "Isar Pavati" or earnest money receipt and the remaining amount of consideration would be paid thereafter within three years and also the sale-deed would be executed within three years from the date of earnest money receipt. They had also agreed that at the time of execution of the saledeed, the expenses for which would be borne by the plaintiff, possession of the said agricultural land, hereinafter referred to as the suit land, would be delivered by the defendant to the plaintiff. They had further agreed that if the defendant failed to abide by these terms and conditions, the plaintiff would be at liberty to get the saledeed of the suit land executed through Court. The plaintiff further submitted that the defendant purchased some stamp papers required for execution of the earnest money receipt and on 15.6.1977, accepting the earnest money of Rs.15,000/- from him in cash, the defendant executed earnest money receipt incorporating all these terms and conditions. Thereafter, the plaintiff had urged the defendant to accept the remaining amount of consideration and also execute the saledeed, but the defendant avoided to accept the remaining consideration and also execute the saledeed. Therefore, on 5.6.1980 the plaintiff issued a notice to the defendant calling upon him to execute the sale-deed by accepting the remaining amount of consideration, but in vain. Left with no option, a suit was brought by the plaintiff against the defendant for enforcing the specific performance of the contract. The plaintiff had also alternatively claimed the relief of refund of earnest money with interest

4. The suit was resisted by the defendant by denying the entire claim. He submitted that there was no agreement on 10.6.1977 in between himself and the plaintiff regarding sale of the suit land. He denied to have received any amount, muchless an amount of Rs.15,000/- as earnest money. He denied the consideration of alleged agreement of sale and also denied execution of the earnest money receipt which was really an agreement of sale on 15.6.1977. He submitted that there was absolutely no transaction in between him and the plaintiff and that the plaintiff in any case did not have any capacity to purchase the suit land, as alleged by him. He submitted that the suit land was a part of estate of his grand mother Geetabai, admeasuring about 62 acres 1 guntha, which was bequeathed to him by Geetabai by way of registered willdeed. He submitted that after the death of Geetabai on 1.1.1976, he became the owner of her entire estate by virtue of registered willdeed. Some disputes were started by the sons of sister of his mother, Samindrabai, in respect of ownership of the estate bequeathed to defendant by Geetabai. These disputes resulted in filing of tenancy, civil and criminal proceedings, which were required to be defended by the defendant and his mother. He submitted that at that time, one Tukaram Balaji Shingne of village Shendurjan, who was distant cousin of Samindrababi, offered his assistance to the defendant and his mother for bailing them out of the trouble. He submitted that Tukaram Balaji Shingne used to carry on the business of money lending without actually having any licence for it and also used to purchase litigations of others. The defendant submitted that said Tukaram, through his soft words, entrapped his mother Samindrabai and made her to agree to bring some blank stamp papers signed by the defendant on pretext that Tukaram would use them for protecting himself from a possible police case, by preparing a Power of Attorney or relevant document. The defendant submitted that believing in these words of Tukaram, he had signed 23 blank stamp papers and handed them over to his mother who, in turn, passed them over to said Tukaram. He submitted, Tukaram instead of using the stamp papers for preparation of Power of Attorney, misused them and prepared the fraudulent earnest money receipt or agreement to sell in the name of the plaintiff.

5. Defendant also alternatively submitted that in the year 1976-1977 he had obtained some loan from said Tukaram which he had returned in the year 1978 itself. Since Tukaram had stated that he would reduce the loan transaction into writing by using one of the stamp papers given to him earlier by the defendant, possibility of stamp papers being put to improper use by said Tukaram was not ruled out.

6. The defendant further submitted that earnest money receipt or agreement to sell was a bogus and fraudulent document, which was never executed by him. He also submitted that in the year 1977 his age was hardly 2021 years and he was not mature enough to understand the land transaction, and that he was in fact cheated by the plaintiff. He also submitted that paying of substantial amount of Rs.15,000/- out of sale consideration of Rs.21,600/- and keeping the same with anybody for a period of about three years without any interest, would itself show that the story of the plaintiff was improbable. On these grounds, he urged that the suit of the plaintiff be dismissed with costs.

7. After considering the evidence available on record, the trial Court found that the defendant had entered into an agreement of sale of the suit land for a consideration of Rs.21,600/-, that he had executed earnest money receipt or agreement to sell on 15.6.1977 after accepting the earnest money of Rs.15,000/- from the plaintiff, and that he had refused to execute the saledeed of the suit land even though the plaintiff was ever ready and willing to perform his part of contract. Accordingly, the trial Court decreed the suit for specific performance of contract. These findings were confirmed by the first appellate Court. Not satisfied with the same, the defendant has filed the present second appeal.

8. This appeal was admitted by this Court on 4.10.1990 on the points 1, 2 and 4 raised in the memo of appeal. Having regard to these points, following substantial questions of law arise for my consideration :

(i) Whether the Courts below were in error in holding, in the face of voluminous contrary evidence on record, that the suit transaction was in respect of sale of the suit land by the defendant?

(ii) Whether the circumstances present on record cumulatively showed that the earnest money receipt or agreement to sell was the document fraudulently got prepared by the plaintiff to make out his case for specific performance of the contract?

(iii) Whether the first appellate Court was in error in rejecting the application for amendment of the written statement, by which amendment was sought to be made so as to incorporate the defence of the defendant based on the provisions of Section 20 of the Specific Relief Act, 1963?

9. I have heard Shri Abhay Sambre, learned counsel for the defendant and Shri S.R.Deshpande, learned counsel for the plaintiff. With their assistance, I have carefully gone through the memo of appeal, paperbook of the appeal and also records of the courts below.

10. The first two questions that arise for consideration in this case are dependant for their answers upon the appreciation of evidence on record. It is well settled that appreciation of evidence, while exercising jurisdiction under Section 100 of Code of Civil Procedure, 1908, is forbidden except in cases where the conclusions reached by the courts below are perverse as having been, based upon no evidence or based upon some extraneous material or the result of non consideration of material evidence or are such that no person of ordinary sense and prudence would reach them. In other words, there are severe limitations on the powers of this Court to look into the evidence brought on record by the parties to the appeal. Subject to these limitations, I have to consider the evidence available on record so as to examine whether the findings recorded by the Courts below are perverse or not.

11. It is seen from the judgment of the trial Court delivered on 16.2.1985 that after considering the evidence brought on record by both the sides in extenso the trial Court recorded its findings that the plaintiff had proved such facts as the agreement to sell the suit land for a consideration of Rs.21,600/-, payment of Rs.15,000/- as earnest money by the plaintiff to the defendant, execution of earnest money receipt vide Ex.32 on 15.6.1977, readiness and willingness of the plaintiff to perform his part of contract and refusal of defendant to execute the sale-deed of the suit land. The trial Court had also considered the defence set up by the defendant that he had not at all executed any earnest money receipt nor had he entered into agreement to sell the suit land to the plaintiff for a total consideration of Rs.21,600/-, and that the plaintiff had played a fraud upon him by using the blank stamp paper given by the defendant to one Tukaram Shingne in collusion with said Tukaram. It is further seen that the trial Court had found the evidence of all the three witnesses of the plaintiff as reliable and probable and that the evidence of the two witnesses of the defendant as not probabilising the defence taken by the defendant. While doing so, the trial Court had not considered any extraneous material nor had ignored any material evidence on record. It is further seen that the trial Court had also considered certain admissions given by D.W.2 Sahebrao Sakharam Morey (Ex.42) in order to find that these admissions make the defence of the defendant that he had handed over signed blank stamp papers to his mother for their being given to Tukaram Shingne to be used by the latter for preparing a Power of Attorney or loan document as improbable. It was the defence of the defendant that these signed blank stamp papers were handed over to Tukaram Shingne after said Tukaram Shingne promised him and his mother his help in defending the tenancy, civil and criminal proceedings initiated by the sons of sister of Samindrabai in respect of estate of Geetabai bequeathed to the defendant. But, as per the admission given by said Sahebrao (D.W.2), it appears that at the time of suit transaction dated 10.6.1977 or execution of the agreement to sell on 15.6.1977, no such disputes had been started at all. He had admitted that when the defendant took possession of the suit land, no dispute or quarrel was there and that the dispute started only about 23 years thereafter. It is not in dispute that the defendant became owner and got possession of the suit land in the year 1976 after the death of Geetabai. The suit transaction is of June 1977 and going by the said admission it is obvious that at the time when the agreement to sell or earnest money receipt was executed, no dispute in respect of the suit land was pending. Therefore, it cannot be accepted that the agreement to sell or earnest money receipt vide Ex.32 was on the same stamp paper which was allegedly given by the defendant to said Tukaram Shingne. Then, as rightly held by the trial Court that since Samindrabai to whom the signed blank stamp papers were given by the defendant, as alleged by him, had not been examined as his witness, adverse inference deserves to be drawn against him and it would be that she was not examined because there was no element of truth in the defence so taken by the defendant. Thus, I find absolutely no perversity in the appreciation of the evidence brought on record and reaching of the conclusions by the trial Court.

12. Such rival cases of plaintiff and defendant were also examined by the first appellate Court in the light of evidence available on record and it could not take any different view of the matter and that was the reason why first appellate Court confirmed all the findings of the trial Court. I find no illegality or perversity in the approach adopted by the trial Court.

13. In the circumstances, it cannot be said, as submitted by learned counsel for defendant, that there has been voluminous evidence showing that there was no transaction in between the plaintiff and the defendant regarding sale of the suit land and that the agreement to sell vide Ex.32 was a document prepared fraudulently. In fact, there have been no circumstances present on the record of this case from which any inference other than the one concurrently drawn by Courts below could be drawn. Rather, the evidence shows that the agreement to sell was prepared on the say of the defendant. The evidence also shows that the agreement to sell was voluntarily and consciously entered into by the defendant with the plaintiff. There have been several suggestions put to the plaintiff in his cross-examination and answers to these suggestions have only strengthened the case of the plaintiff and completely rendered the defence of defendant as improbable. In paragraph 9 of the evidence of P.W.1 Shankar Sonaji Shingne (Ex.31), the plaintiff, to the suggestion put to him during the course of cross-examination, has stated that the defendant and his mother had approached him for selling the land on 10.6.1977. He has further stated that the defendant had told him that the defendant would purchase the stamp paper because the plaintiff had no idea about the value of the stamp paper that would be required for preparing the document. It has also appeared in his cross-examination that the defendant himself had brought a scribe for writing the document, that the contents of the document were narrated by the defendant, and accordingly were written by the scribe. He has also admitted that he had paid Rs.15,000/- in cash to the defendant at the time of execution of the agreement to sell vide Ex.32. Similar answers have appeared in the cross-examination of P.W.3 Bhagwan Ananda Manatkar (Ex.36), who was the scribe of the document at Ex.32. All these answers only go to show that the agreement to sell was indeed executed by the defendant knowing fully well what he was agreeing to in response to the offer given by the plaintiff.

14. Learned counsel for the defendant has submitted that there have been admissions given by P.W.3 Bhagwan that prior to the suit transaction he had not written any Isar Pawati, but, with due respect, I must say that only because the scribe had not prepared or scribed any similar document in the past, it would not by itself create a doubt about the role played by him as a scribe in the instant case. It has been the case of the plaintiff that the contents of the document at Ex.32 were written on the say of the defendant and this fact is also admitted by the defendant. So, in the instant matter, experience of the scribe was of no relevance and what P.W.3 Bhagwan has done was only to put into writing what was told to him by the defendant himself. Therefore, the said admission would not lead to creating any doubt about the contents of the agreement to sell vide Ex.32. I must say it here that the signature appearing on this document has not been denied by the defendant. Therefore, I find no merit in the said argument of learned counsel for defendant.

15. Learned counsel for defendant has further submitted that there are present on record strong circumstances from which an inference can be drawn that the defendant must have signed blank stamp papers and must not have intended to enter into any agreement for sale of his agricultural land to the plaintiff. According to him, these circumstances are manifested in the payment of substantial amount of Rs. 15,000/- as earnest money to the defendant and waiting by the plaintiff for a period of three years for taking delivery of possession of the suit land from the defendant. Learned counsel for the defendant submits that in ordinary course of events, no person of prudence would part with 3/4th amount of total consideration without asking for delivery of the possession. He submits that since such terms cannot be possibly agreed to by anybody having ordinary understanding of land transactions, it must be held that the defence of the defendant that he had only signed blank stamp papers which were misused by the plaintiff, is probable. He further submits that evidence on record shows that defendant had no capacity to purchase the suit land as he admits that he has no bank account and does not know survey numbers of lands held by him. He also submits that in the notice issued by the defendant, date of agreement was not mentioned. On the other hand, learned counsel for plaintiff has argued that in the absence of necessary details, as required under Order VI Rule 4, Code of Civil Procedure, it cannot be said that defendant was cheated into signing the stamp papers.

16. I have already discussed in details as to how no perversity is seen in appreciating the evidence available on record by the Courts below and as to how this evidence has overwhelmingly shown that the agreement to sell was voluntarily and consciously entered into by the defendant with the plaintiff. There have been admissions given by the defendant himself which render the circumstances such as the plaintiff not having a bank account, plaintiff not giving details of his land and absence of date of agreement in the notice sent by the plaintiff as inconsequential, and these admissions have been discussed earlier. The facts on record also show that it were the defendant who had narrated the terms of the contract to the scribe of the document vide Ex.32 and after they were reduced into writing, admittedly, they were read over to the defendant and it was only thereafter that he had affixed his signature to the document at Ex.32. If some of the terms of this document had appeared to be unreasonable from the view point of one side, as for example, payment of substantial amount as earnest money without taking possession, the fact remains that these very terms have been accepted by both the parties and with full understanding of their import and consequences. Therefore, what is apparently seen as unfairness of a term by one party is not perceived to be so by the other party, i.e. the plaintiff. Had it not been so, there would have been no agreement at all between the parties. If the said term, as argued by learned counsel for defendant is taken to be unfair, it would only produce unfair advantage, not in favour of the plaintiff but in favour of the defendant, which is no ground under Section 20(2)(a) of the Specific Relief Act, 1963 for the Courts to refuse to exercise discretion regarding decreeing of specific performance of contract. It would also not involve any hardship for the defendant. The unfair advantage or the hardship contemplated under Section 20 has to be seen as working against the defendant and not the plaintiff. There are no circumstances either making enforcement of specific performance of the contract as inequitable. For these reasons, this case cannot be seen to be falling in any of the instances mentioned in clauses (a)to (c) of subsection (2) of Section 20 of Specific Relief Act. Then, no details of pending litigations have been given so as to make out the case that the defendant was cheated into signing stamp papers, as required under Order VI Rule 4 of Code of Civil Procedure. Order VI Rule 4 makes it mandatory for a party pleading fraud, misrepresentation, breach of trust, wilful default or undue influence, to state the particulars thereof with dates and items and so on. This is because to put the other side on sufficient notice of the case it has to meet. Here, neither the particulars nor any evidence has been adduced in regard to the pending litigations, dates etc. to make out the case of misuse of stamp papers. I, therefore, find no substance in the arguments canvassed in this regard on behalf of the defendant and find merit in the argument of learned counsel for the plaintiff.

17. For these reasons, I find that no error has been committed by both the courts below in holding that the suit transaction was only in respect of sale of suit land by the defendant to the plaintiff and that the document of agreement to sell vide ex.32 was not entered in such circumstances as would render the whole transaction as fraudulent and illegal. Question nos. (i) and (ii) are, therefore, answered as in the negative.

18. As regards the third question, I find neither any illegality nor perversity in rejecting the application moved by the defendant for amendment of his written statement so as to incorporate his defence based upon the provisions of Section 20 of Specific Relief Act. It is seen from the judgment of the first appellate Court that he has in fact considered all these defences which were sought to be added by this application in their proper perspective and rightly rejected the same. He has found that inadequate consideration is not a ground for refusal of specific performance. Even otherwise, there was no evidence showing that the consideration for the sale of the suit land itself was inadequate. There was also evidence to show that the defendant was not entirely dependant upon the suit land. The defendant has admitted that the suit land admeasuring 18 acres was a part of his estate comprising 62 acres 1 guntha. He has also admitted that he had sold some other portion of the suit land. Therefore, it could not be said that if specific performance was granted it would cause hardship to the defendant which he did not foresee at the time when he entered into an agreement to sell, or the circumstances of the case were such as would make enforcement of specific performance inequitable. There are also no circumstances brought on record showing that the contract gives the plaintiff an unfair advantage over the defendant. Even if the application had been allowed by the learned Additional District Judge, it would not have made any difference to the defence already set up by the defendant. This application moved by the defendant is at Ex.20 and he has stated in the application that he had already raised various pleas of his defence in his written statement and only to magnify and illustrate them in a precise way, he intended to amend his pleadings. He has also stated that no evidence is required to be adduced on these detailed pleas, which he sought to incorporate by way of amendment. These pleas have already been considered by the first appellate Court and it has found them to be without any substance. In such a scenario, it has to be found that even though there has been a formal negation of the application for amendment of the written statement vide Ex.20, in effect, the learned Additional District Judge has considered all the pleas in their right perspective, and in the light of the evidence available on record rejected the same. I find no illegality or perversity in such an approach adopted by the learned Additional District Judge. No prejudice, in such a situation, could be said to have been caused to the defendant. Therefore, the third substantial question of law is also answered as in the negative.

19. In the circumstances, there is no substance in the appeal and it deserves to be dismissed.

20. The appeal stands dismissed with costs.

Appeal dismissed.