Supreme Court of India
Lakha Singh vs Balwinder Singh on 27 September, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
2024 INSC 744 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2024
(Arising out of SLP(Civil) No(s). 30250 of 2018)
LAKHA SINGH .…APPELLANT(S)
VERSUS
BALWINDER SINGH & ANR. ….RESPONDENT(S)
JUDGMENT
Mehta, J.
1. Heard.
2. Leave granted.
3. This appeal by special leave is directed against the judgment
dated 25th April, 2018 rendered by the High Court of Punjab and
Haryana at Chandigarh, whereby the second appeal1 preferred by
the appellant-defendant was dismissed, and the judgment dated
20th March, 2017 passed by the learned Additional District Judge,
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2024.09.27
18:42:50 IST
Reason:
1 RSA No. 4577 of 2017(O&M).
1
Tarn Taran2 in Civil Appeal3 was affirmed. The First Appellate
Court dismissed the Civil Appeal preferred by the appellant-
defendant and upheld the judgment and decree dated 18th
February, 2013 passed by the learned Additional Civil Judge
(Senior Division), Patti, Tarn Taran4 in Civil Suit5 filed by the
respondent-plaintiff. The trial Court allowed the suit partly,
directing the recovery of Rs. 16,00,000/- and the interest accrued
thereupon from the appellant-defendant by way of alternative relief
of recovery while denying the prayer of specific performance sought
for by the respondent-plaintiff.
4. The facts in a nutshell relevant and essential for disposal of
the appeal are noted hereinbelow.
5. The respondent-plaintiff filed the subject suit in the trial
Court seeking a decree for specific performance of an agreement to
sell dated 7th May, 20076 in respect of an agricultural plot of land
admeasuring 30 Kanals 8 Marlas7 located at Village Amrike, Tehsil
Patti, District Tarn Taran, Punjab. Besides the relief of specific
performance, the respondent-plaintiff also sought permanent
2 ‘First Appellate Court’.
3 Civil Appeal No. 05 of 2016.
4 ‘trial Court’.
5 Civil Suit No. 535 of 2008.
6 ‘disputed agreement’.
7 ‘suit land’.
2
injunction for restraining the appellant-defendant from alienating
the suit land and dispossessing the respondent-plaintiff from the
same. In the alternative, respondent-plaintiff sought relief of
recovery of Rs.19,00,000/- including the amount of
Rs.16,00,000/- paid as earnest money on the date of execution of
the disputed agreement along with the damages to the tune of
Rs.3,00,000/-.
6. The respondent-plaintiff averred in the plaint that the
appellant-defendant, being the owner of the suit land, had agreed
to sell the same to the respondent-plaintiff vide the disputed
agreement wherein, the rate of the land was fixed at Rs.5,00,000/-
per Killa with a condition to get the sale deed executed and
registered on 19th September, 2008. As per the recitals in the
disputed agreement, the appellant-defendant received a sum of
Rs.16,00,000/- by way of earnest money on the date of the
execution of the agreement with a further stipulation that the
balance consideration would be paid on 19th September, 2008,
when both the parties would appear at the Registrar office. It was
further stipulated that if on the said date, the appellant-defendant
failed to execute the registered sale deed then, he would become
liable to return the earnest money to the tune of Rs.16,00,000/-
3
along with penalty of equal amount, totalling to Rs.32,00,000/- to
the respondent-plaintiff. Even after receiving the money and the
penalty, the respondent-plaintiff would be entitled to file a suit for
getting the sale deed executed in his favour. This disputed
agreement was attested by two witnesses namely, Major Singh
(PW-4) and Balwinder Singh (PW-2).
7. It was also averred in the plaint that a part of the property
was under mortgage with respondent No. 2 i.e. The State Bank of
Patiala. The respondent-plaintiff claimed that he reached the Office
of Joint Registrar, Khem Karan on the date stipulated in the
disputed agreement i.e. 19th September, 2008 and remained
present there from 09:00 am to 05:00 pm waiting for the appellant-
defendant to arrive. However, the appellant-defendant did not turn
up to get the sale deed registered in favour of the respondent-
plaintiff, thereby violating the terms and conditions of the
agreement. As such, the respondent-plaintiff got an affidavit of
attendance attested from the Executive Magistrate, Khem Karan,
who was also discharging the duties of the Joint Sub-Registrar,
Khem Karan. In this manner, the respondent-plaintiff claimed to
have marked his presence before the Joint Sub-Registrar showing
4
his readiness and willingness to get the sale deed executed and
registered in his favour, in terms of the disputed agreement.
8. Respondent-plaintiff further averred in the plaint that the
appellant-defendant had breached the terms of the disputed
agreement and was not ready and willing to execute and get the
sale deed registered despite numerous requests, being made. The
respondent-plaintiff also averred that the possession of the land,
was handed over to him at the time when the disputed agreement
was executed and that the respondent-plaintiff continued to
remain in possession of the suit land as a prospective vendee.
Apprehending that the appellant-defendant could alienate the suit
land in favour of some other person, thereby dispossessing him,
the respondent-plaintiff filed the subject suit8 seeking reliefs in the
following terms: –
“It is therefore respectfully prayed that a decree for Specific
Performance of Agreement to sell dated 7.5.2007 with regard to
land measuring 30 Kanals 8 Marlas detail of which is as
follows:
a. Land measuring 12 Kanals 14 Marlas i.e. 4/72
share of land measuring 229 Kanals 5 Marlas bearing
Khata/Khatoni No. 153 /372 to 379, Rectangle and
Killa Nos. 31//14//1, 20, 21, 32//15, 17,327/24,
25, 337/5, 31/722, 347/9, 2,31//12, 13,
19, 317/2671, 327/16, 337/74, 6, 7, 14,15,16, 25,
347/1, 10,20,44//5, 32//4, 5,6,7.8/1, 14/2,
32/714/1, 337/178 Civil Suit No. 535 of 2008
5
b. Land measuring 7 Kanals 17 Marlas i.e. 1/3rd
share of land measuring 23 Kanals 10 Marlas bearing
Khata/Khatoni No. 153/374, Rectangle and Killa
Nos. 327/22, 34/79,2.
c. Land measuring 9 Kanals 17 Marlas i.e. 4/72 share
of land measuring 170 Kanals 10 Marlas bearing
Khata/Khatoni No. 101/243, 244/, 244.1 246,
102/246 Rectangle and Killa Nos. 31/ /11, 8/2,
19/22/221//14, 15, 16, 17, 24, 25, 22//2, 3/1,
10/2, 22//9, 11,12, 19, 20, 21, 22, 31//1,2,10 min
(6-16), 32//1,2.21/211/9,10 nub, (1-4),
21//22,23,32//3/1, situated in village Amrike Tehsil
Patti district Tarn Taran as per Jamabandi 2002-
2003 on payment of Rs.3,00,000/- or any sum which
this Hon’ble Court finds due and for execution and
registration of sale deed and for delivery of symbolic
actual possession of above land to the plaintiff with
consequential relief of permanent injunction thus,
restraining the defendant no. 1 from alienating the
suit land with anybody in any way, except the plaintiff
and also restraining the defendant no. 1 forever from
dispossessing the plaintiff forcibly from land
measuring 30 Kanals 8 Marlas bearing Khasra No.
31//14/1 min (1-0), 20, (7-16), 21 (8-32)/715 (7-12),
327//17 (7-0) situated at Village Amrike, Tehsil Patti,
District Tarn Taran as per Jamabandi for the year
2002 – 03 and also restraining the defendant no. 1
from interfering in the peaceful possession of the
plaintiff over the same.
In the alternative, suit for recovery of Rs.19,00,000/- detailed
as follow:
a) Amount of earnest money paid on 7.5.2007 at
the time of execution of agreement i.e.,
Rs.16,00,000/-.
b) Amount of damage and compensation for
breach of contract dated 7.5.2007 of Rs. 3,00,000/-,
totalling to Rs. 19,00,000/- be passed in favour of
plaintiff and against the defendant No.1 with costs.
Any other relief to which the plaintiff is found entitled to that
may also kindly be granted in favour of plaintiff.”
9. The appellant-defendant, upon being summoned, appeared
before the trial Court and filed a written statement denying the
6
averments made in the plaint. It was specifically averred in the
written statement filed by the appellant-defendant that the
disputed agreement was without consideration, result of
misrepresentation, impersonation and must have been prepared
fraudulently by the respondent-plaintiff who was an employee of
the Punjab police, posted as the Head Constable at Amritsar by
colluding with the scribe and the attesting witnesses.
10. It was further alleged that the respondent-plaintiff’s brother
was a commission agent and ran a commission business at Mandi,
Amarkot. The appellant-defendant used to sell his agricultural
produce through the commission agency of the respondent-
plaintiff’s brother. The appellant-defendant was an illiterate
simpleton and the respondent-plaintiff, and his brother used to get
the thumb impressions of the customers/agriculturists including
the appellant-defendant on blank stamp papers. It was specifically
asserted in the written statement that the disputed agreement had
been prepared by fraudulent means on one of such blank stamp
papers, on which the thumb impression of the appellant-defendant
had been taken by deceitful means. The appellant-defendant also
denied the receipt of sale consideration from the respondent-
plaintiff and asserted that he was not bound by the disputed
7
agreement. A plea was also made by the appellant-defendant that
the market rate of agricultural land in Village Cheema Khurd was
not less than Rs.12,00,000/- per Killa and that there was no
reason for the appellant-defendant to have sold his valuable land
to the respondent-plaintiff at a throw away rate of Rs.5,00,000/-
per Killa, more particularly as the suit land was his only source of
livelihood.
11. A pertinent plea was also taken by the appellant-defendant
that the suit for specific performance of the disputed agreement
and for permanent injunction, was bad for non-joinder of
necessary parties because all the co-sharers of the suit land were
not arrayed as parties in the subject suit. Based on aforesaid
pleadings of the parties, the trial Court framed the following issues
for determination: –
“1. Whether the defendant no. 1 executed an agreement to sell
dated 7.5.2007 regarding land measuring 30 Kanals 8 Marlas
in favour of the plaintiff? OPP.
2. Whether the plaintiff is entitled for specific performance of
agreement to sell? OPP.
3. Whether the plaintiff is entitled in the alternative to recover
Rs.19,00,000/- from the defendant no. 1? OPP.
4. Whether the plaintiff and defendant no. 1 were owner/co-
sharer in possession to the extent of his share in the disputed
property? OPP.
5. Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for? OPP.
6. Whether the suit is maintainable in the present form? OPP.
8
7. Whether the plaintiff has locus standi to file the present suit?
OPP.
8. Whether the cause of action arisen to the plaintiff for filing of
present suit? OPP.
9. Whether the suit is bad for non-joinder of necessary parties?
OPP.
10. Whether the plaintiff has not come to the court with clean
hands? OPD.
11. Whether the plaintiff is estopped by his own act and
conduct from filing the present suit? OPD.
12. Relief.”
12. The issue No.2(supra) regarding entitlement of the
respondent-plaintiff for specific performance of the disputed
agreement and the affiliated issue No. 5(supra) for the relief of
permanent injunction were decided against the respondent-
plaintiff. However, issue No.3(supra) regarding the alternative relief
seeking recovery of the amount to the tune of Rs. 19,00,000/- was
partly decided in favour of the respondent-plaintiff and partly
against him. The trial Court recorded the following findings: –
a. It was an admitted fact that the appellant-defendant was
the owner of the suit land and respondent-plaintiff while
appearing as PW-1 produced on record the agreement to
sell9, duly signed by the appellant-defendant.
9
‘disputed agreement’
9
b. The respondent-plaintiff testified that the appellant-
defendant had agreed to sell the suit land in his favour
and received a sum of Rs. 16,00,000/- as earnest money
with a condition to execute the sale deed on 19th
September, 2008.
c. On the date fixed as per the disputed agreement, the
appellant-defendant failed to appear at the office of the
Sub-Registrar whereas the respondent-plaintiff got his
presence marked by way of an affidavit attested by the
Executive Magistrate-cum-Sub-Registrar, Khem Karan.
d. The version of the respondent-plaintiff was also
corroborated by the attesting witnesses namely, Major
Singh (PW-4) and Balwinder Singh (PW-2).
e. That the respondent-plaintiff had proved the execution of
the disputed agreement and his willingness to get the sale
deed executed by cogent evidence.
f. That the possession of the suit land was never handed
over to the respondent-plaintiff although this fact was
mentioned in the disputed agreement.
g. That the person who pays a huge amount and fixes a long
date for the execution of the sale deed, would not be
10
expected to wait for possession to be taken in future.
However, in the case at hand, the date fixed for the
execution of the sale deed was after a period of about a
year and four months from the date of the execution of
the disputed agreement.
13. Based on the aforesaid findings, the trial Court concluded
that the transaction between the parties appeared to be a loan
transaction rather than an agreement for sale and purchase of the
property and held that the respondent-plaintiff was not entitled to
the relief of specific performance of the agreement in respect of the
suit land. However, the respondent-plaintiff was held to be entitled
to recover the earnest money paid to the appellant-defendant at
the time of the execution of the agreement along with interest.
14. The trial Court decreed the suit vide judgment dated 18th
February, 2013 and directed the appellant-defendant to refund the
earnest money to the tune of Rs. 16,00,000/- with pendente lite
interest @ 9% per annum and future interest @ 6% per annum to
the respondent-plaintiff.
15. As noted above, the first appeal as well as the second appeal
preferred by the appellant-defendant against the judgment and
decree rendered by the trial Court stood rejected by the First
11
Appellate Court and the High Court, respectively vide judgments
dated 20th March, 2017 and 25th April, 2018. These judgments are
subjected to challenge in this appeal by special leave.
16. Shri Ankit Goel, learned counsel for the appellant-defendant,
vehemently and fervently contended that the findings of facts
recorded by the Courts below, though concurrent, are perverse on
the face of the record and thus, it is a fit case warranting
interference by this Court in exercise of the jurisdiction conferred
by Article 136 of the Constitution of India.
17. To buttress the above contention, learned counsel for the
appellant-defendant, drew the Court’s attention to the following
excerpts from the cross-examination of the respondent-plaintiff
(PW1): –
“Amarjit Singh S/o Massa Singh is my real brother. He is
running a commission agent shop at Amarkot, and the name of
the commission agent shop is Cheema Trading Company, at
Amarkot. I know Lakha Singh from my childhood. He belongs
to my village. I do not know whether Lakha Singh deft sold his
agriculture produce through the commission agent shop of my
brother Amarjit Singh. I am posted as Head constable in Punjab
Police and now posted at Ludhiana at Division no. 11nd. The
agreement was scribed at Patti by a typist, but I do not know
his name.
Possession was not delivered on the basis of agreement to sell.
It was mentioned in the agreement that the possession will be
delivered on the agreement but the defendant refused to deliver
the possession of the land agreed to sold the land to me.
I file the income tax return because I am employee of Punjab
Govt. I have not shown the amount of Rs.16,00,000/- in my
income tax return. It is correct if any Govt. employee want to
purchase any land it is necessary to get the permission from
12
their department. I have not taken any permission from my
department before purchasing the agreement to sell with the
defendant not I show any amount of Rs. Sixteen lakh to my
department. It is correct that agriculture income also not shown
in my income tax return. I have never shown my agricultural
income in my income tax return.
This amount was not withdrawn by me from any bank & this
amount was lying be me in my house.
It is correct that at present the marked rate in vill. Cheema
Khurd Rs. 9/10 lakhs per Killa.
It is also wrong. to suggest that defendant never purchase the
stamp paper through Angrej Singh for execution of the
agreement to sell dated 07-5-2007. It is also wrong to suggest
that agreement is prepared and dated with the collusiveness of
the attesting witnesses. It is also wrong to suggest defendant
never receipt any amount of Rs.16 lakhs from me as earnest
money. It is also wrong to suggest deft use to sell his agriculture
produce at that shop of my brother Amarjit Singh. It is also
wrong to suggest my brother might have got the thumb
impression by fraud.”
18. He highlighted and stressed upon the following facts elicited
from the deposition (supra) of the respondent-plaintiff: –
a. The respondent-plaintiff was employed as a Head
Constable in the Punjab Police at the time of the incident.
b. The respondent-plaintiff’s brother was running a
commission agent shop at Mandi Amarkot.
c. Contrary to the recital in the disputed agreement that the
possession of suit land was given to the respondent-
plaintiff, it was admitted by the respondent-plaintiff in his
evidence that the possession of suit land was not handed
over to him on the basis of the disputed agreement.
13
d. The respondent-plaintiff admitted that he used to file
Income Tax returns being an employee of the Punjab
Government, but he did not show the amount of
Rs.16,00,000/- in the Income Tax return.
e. He also admitted that he had not obtained any permission
from the department to purchase the suit land.
f. The respondent-plaintiff admitted that the amount in
question was not withdrawn from any bank and the
currency notes used for the transaction were lying in his
house.
g. He also admitted that the market rate of the land in Village
Cheema Khurd was around Rs.9-10 lakhs per Killa.
h. He denied the suggestion given on behalf of the appellant-
defendant that his brother Amarjeet Singh had procured
the thumb impression of the appellant-defendant on blank
stamp papers by fraud.
19. Learned counsel urged that the admissions as appearing in
the testimony of the respondent-plaintiff, completely discredit the
version regarding the execution of the disputed agreement.
Therefore, he submitted that the findings recorded in the
judgments of the Courts below are patently perverse and are based
14
on misreading/ignorance of the admitted facts available on record
and thus, the appeal merits acceptance and the impugned
judgments deserve to be reversed.
20. Per contra, learned counsel representing the respondent-
plaintiff, supported the findings recorded in the impugned
judgments. He urged that the trial Court, the First Appellate Court
and the High Court appreciated and re-appreciated the evidence
minutely and have arrived at an unimpeachable conclusion that
the transaction in question was a loan transaction inter se between
the respondent-plaintiff and the appellant-defendant and thus, the
appellant-defendant was rightly held liable to reimburse the
amount of loan secured from the respondent-plaintiff at the time
of the execution of the disputed agreement. He urged that the law
is well settled that this Court whilst exercising the jurisdiction
under Article 136 of the Constitution of India, would not enter into
pure questions of fact so as to reverse the well-reasoned judgments
of the Courts below. On these counts, learned counsel for the
respondent-plaintiff implored the Court to dismiss the appeal.
21. We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
placed on record.
15
22. It is trite law that jurisdiction under Article 136 of the
Constitution of India should not be exercised unless the findings
on facts recorded by the Courts below suffer from perversity or are
based on omission to consider vital evidence available on record.
23. The scope of an appeal by special leave under Article 136 of
the Constitution of India against concurrent findings is well-
established. In the case of Sukhbiri Devi v. Union of India10, this
Court noted:
“3. At the outset, it is to be noted that the challenge in this
appeal is against concurrent findings by three Courts, as
mentioned hereinbefore. The scope of an appeal by special
leave under Article 136 of the Constitution of India against the
concurrent findings is well settled. In State of
Rajasthan v. Shiv Dayal reiterating the settled position, this
11Court held that a concurrent finding of fact is binding, unless
it is infected with perversity. It was held therein: —
“When any concurrent finding of fact is assailed in
second appeal, the appellant is entitled to point
out that it is bad in law because it was recorded
de hors the pleadings or it was based on no
evidence or it was based on misreading of material
documentary evidence or it was recorded against
any provision of law and lastly, the decision is one
which no Judge acting judicially could reasonably
have reached. (see observation made by learned
Judge Vivian Bose, J. as His Lordship then was a
Judge of the Nagpur High Court in Rajeshwar
Vishwanath Mamidwar v. Dashrath Narayan
Chilwelkar, AIR 1943 Nag 117 Para 43).”
4. Thus, evidently, the settled position is that interference
with the concurrent findings in an appeal under Article
136 of the Constitution is to be made sparingly, that too
when the judgment impugned is absolutely perverse. On
appreciation of evidence another view is possible also cannot
be a reason for substitution of a plausible view taken and10 2022 SCC OnLine SC 1322.
11 (2019) 8 SCC 637.
16
confirmed. We will now, bearing in mind the settled position,
proceed to consider as to whether the said appellate power
invites invocation in the case on hand.”
(emphasis supplied)
24. This Court in Mekala Sivaiah v. State of A.P.,12 while
dealing with its power under Article 136 to interfere with
concurrent findings held the following: –
“15. It is well settled by judicial pronouncement that Article
136 is worded in wide terms and powers conferred under the
said Article are not hedged by any technical hurdles. This
overriding and exceptional power is, however, to be exercised
sparingly and only in furtherance of cause of justice. Thus,
when the judgment under appeal has resulted in grave
miscarriage of justice by some misapprehension or misreading
of evidence or by ignoring material evidence then this Court is
not only empowered but is well expected to interfere to promote
the cause of justice.
16. It is not the practice of this Court to re-appreciate the
evidence for the purpose of examining whether the findings of
fact concurrently arrived at by the trial court and the High
Court are correct or not. It is only in rare and exceptional cases
where there is some manifest illegality or grave and serious
miscarriage of justice on account of misreading or ignoring
material evidence, that this Court would interfere with such
finding of fact.
…
18. In Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, (1983) 3 SCC 217 : 1983 SCC (Cri) 728], a two-
Judge Bench of this Court held that this Court does not
interfere with the concurrent findings of fact unless it is
established:
18.1. That the finding is based on no evidence.
18.2. That the finding is perverse, it being such as no
reasonable person could arrive at even if the evidence was
taken at its face value.
18.3. The finding is based and built on inadmissible
evidence which evidence, excluded from vision, would
negate the prosecution case or substantially discredit or
impair it.
12 (2022) 8 SCC 253.
17
18.4. Some vital piece of evidence which would tilt the
balance in favour of the convict has been overlooked,
disregarded or wrongly discarded.”(emphasis supplied)
25. Keeping in mind the aforesaid principles, we shall now advert
to the submissions advanced on behalf of the parties with
reference to the findings recorded by the Courts below and the
material available on record.
26. The respondent-plaintiff filed the subject suit with a pertinent
assertion that the disputed agreement was executed by the
appellant-defendant for sale of his agricultural land admeasuring
30 Kanals and 8 Marlas at the rate of Rs.5,00,000/- per Killa. As
per the recital in the agreement, the respondent-plaintiff paid a
sum of Rs.16,00,000/- in cash to the appellant-defendant at the
time of the execution of the disputed agreement.
27. At this stage, a very crucial fact which is noticeable from the
disputed agreement needs to be highlighted. It is not in dispute
that the stamp papers were not purchased by the appellant-
defendant and rather Amarjeet Singh was the person who
purchased the same. The document was typed out in Gurmukhi
language and the photostat copy thereof is available on record. A
visual overview of the disputed agreement would show that it runs
into three pages. The signature of the respondent-plaintiff, and the
18
thumb impression of the appellant-defendant are marked only on
the last page thereof. The first and second pages of the agreement,
do not bear the signature of the respondent-plaintiff or the thumb
impression of the appellant-defendant. There exist significant
blank spaces at the foot of the first two pages below the
transcription typed out on these two pages. These observations
give rise to a strong inference fortifying the contention of the
appellant-defendant’s counsel that the thumb impression of the
appellant-defendant may have been taken on a blank stamp paper
and the disputed agreement was typed thereon subsequently.
28. It cannot be denied that the respondent-plaintiff being a
Police Constable was mandatorily required to seek permission
from his department before entering into an agreement to
purchase property of such a high value. However, admittedly, he
did not seek any such permission from the department. As per the
disputed agreement, the appellant-defendant agreed to sell the
suit land to the respondent-plaintiff @ Rs. 5,00,000/- per Killa,
which was just about half of the market rate of the land at the
relevant point of time, as admitted by the respondent-plaintiff.
Going by the rate as fixed in the disputed agreement, the total sale
consideration would have amounted to approximately,
19
Rs.18,87,000/-. The disputed agreement recites that the
appellant-defendant had received earnest money to the tune of
Rs.16,00,000/- for the purpose of doing agriculture and to buy
cheaper and better land nearby. Thus, a lion’s share of the sale
consideration was already paid to the appellant-defendant at the
time of the execution of the disputed agreement and the remaining
amount was hardly 15% of the total value of the suit land as agreed
upon between the parties. Therefore, it does not stand to reason
that the respondent-plaintiff being a Police Constable would part
with a huge sum of Rs.16,00,000/- towards a transaction to
purchase land and thereafter, agree to defer the execution of the
sale deed to a date almost 16 months later with the balance
amount being a fraction of the total sale consideration.
29. Apparently thus, there was no rhyme or reason as to why, the
respondent-plaintiff would agree to defer the execution of the sale
deed to a date more than a year and four months after the
execution of the disputed agreement. Thus, the disputed
agreement i.e., the agreement to sell read in entirety is highly
suspicious and does not inspire confidence at all.
30. As per the disputed agreement, the consequence of non-
appearance of the appellant-defendant at the Registrar’s office on
20
19th September, 2008 and his failure to get the sale deed
registered, was that the appellant-defendant would be liable to
return the earnest money of Rs.16,00,000/- along with a penalty
of equal amount, totalling to Rs.32,00,000/- and even thereafter,
the respondent-plaintiff would be entitled to file a case in the civil
Court for the execution of the sale deed. Simultaneously, it was
agreed that if the balance amount was not paid by the respondent-
plaintiff, the earnest money would be liable to be forfeited by the
appellant-defendant.
31. As per the averments made in the plaint, the respondent-
plaintiff did not even once, during the aforesaid period of 16
months, approach the appellant-defendant for getting the sale
deed executed in terms of the disputed agreement. He claimed that
he straight away proceeded to the Sub-Registrar’s office on 19th
September, 2008 and remained present there from 09:00 am to
05:00 pm waiting for the appellant-defendant to turn up and get
the sale deed registered. However, the appellant-defendant failed
to appear at the office of the Sub-Registrar on the scheduled date.
Admittedly, the respondent-plaintiff did not give any advance
intimation to the appellant-defendant imploring him to receive the
balance consideration and execute the sale deed on the scheduled
21
date i.e. 19th September, 2008 or anytime thereafter. Instead, he
directly proceeded to file the subject suit in the month of
December, 2008 wherein, alternative prayers, one for the
execution of the sale deed and the other for the refund of the
earnest money were made.
32. Ex-facie, the averments set out in the plaint and the evidence
of the respondent-plaintiff do not bear an iota of truth and appear
to be nothing but a sheer concoction. The circumstances noted
above, the evidence of the respondent-plaintiff; the disputed
agreement and the plaint clearly indicates that the disputed
agreement seems to have been prepared on a blank stamp paper
on which, the thumb impressions of the illiterate appellant-
defendant had been taken prior to its transcription. The large
blank spaces on the first and second pages of the disputed
agreement and the absence of thumb impression/signatures of the
parties and the attesting witnesses on these two pages, fortifies the
conclusion that the disputed agreement was transcribed on one of
the blank stamp papers on which the thumb impression of the
appellant-defendant had been taken beforehand.
33. It may be mentioned here that the appellant-defendant
appeared before the trial court, to give evidence as DW-1 and
22
emphatically denied the factum of the execution of the disputed
agreement. He also denied having received a sum of
Rs.16,00,000/- from the respondent-plaintiff. The trial Court
disbelieved the version of the respondent-plaintiff on the aspect
that the disputed agreement, for the execution whereof the subject
suit was filed, was an agreement to sell and instead treated the
amount mentioned in the disputed agreement to be a loan.
However, on-going through the cross-examination conducted from
the appellant-defendant, we do not find any suggestion whatsoever
that the amount of Rs. 16,00,000/- was given to the appellant-
defendant by way of loan.
34. On perusal of the plaint and the affidavit by way of
examination-in-chief of the respondent-plaintiff, a very significant
fact can be culled out. The respondent-plaintiff did not even make
a whisper in his deposition affidavit that when he proceeded to the
office of the Sub-Registrar on 19th September, 2008, he was
carrying the balance sale consideration with him. Furthermore, it
is not the case of the respondent-plaintiff that he ever offered the
balance sale consideration in terms of the disputed agreement to
the appellant-defendant at any point of time either before 19th
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September, 2008 or on 19th September, 2008, when the
respondent-plaintiff appeared before the Sub-Registrar.
35. The respondent-plaintiff admitted that he did not seek
permission from his department before entering into the
agreement for purchase of property having high value. It is not the
case of the respondent-plaintiff that he and the appellant-
defendant were on such close terms that he would readily agree to
give cash loan to the appellant-defendant without any security.
36. The factors enumerated above, are sufficient for this Court to
conclude that the entire case of the respondent-plaintiff regarding
the execution of the disputed agreement; the alleged payment of
Rs. 16,00,000/- in cash to the appellant-defendant on 7th May,
2007 and the alleged appearance of the respondent-plaintiff in the
office of the Sub-Registrar in the purported exercise of getting the
sale deed executed in terms of the disputed agreement is nothing
but a sheer piece of fraud and concoction.
37. These vital factual aspects were totally glossed over by the
Courts below while deciding the suit, the first appeal and the
second appeal. In these facts and circumstances, we find it to be a
fit case to exercise our powers under Article 136 of the Constitution
of India so as to interfere with the impugned judgements.
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38. Hence, there cannot be any escape from the conclusion that
the judgment and decree dated 18th February, 2013 rendered by
the trial Court, judgment dated 20th March, 2017 passed by the
First Appellate Court and the judgment dated 25th April, 2018
rendered by the High Court suffer from perversity on the face of
the record and hence, the same cannot be sustained.
39. Resultantly, the appeal succeeds and is hereby allowed.
40. The impugned judgments are hereby quashed and set aside.
Decree be prepared accordingly. No order as to costs.
41. Pending application(s), if any, shall stand disposed of.
..……………….………………….……….J.
(PAMIDIGHANTAM SRI NARASIMHA)
……………………………………………….J.
(SANDEEP MEHTA)
New Delhi;
September 27, 2024
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