DALBIR SINGH ALIAS VIR SINGH Vs. DALBIR SINGH

JUDGEMENT

(1.) Kartar Singh son of Ganga Singh of village Kasor instituted suit for a specific performance of the agreement of sell dated 25.6.1987 against Dalbir Singh alias Vir Singh son of Hazara Singh son of Sham Singh of village Kasor qua 5/7 share of land measuring 158 kanals 1 marlai.e. 112 kanals 18 marlas situated in the revenue estate of village Kasor; in the alternative for the recovery of Rs. 70,000/ - being consolidated damages, on the allegations, that Dalbir Singh had entered into an agreement to sell 5/7 share of land measuring 158 kanals 1 marla with him vide agreement dated 25.6.1987 @ Rs. 20,000/ - per acre. A sum of Rs. 70,000/ - was paid to him as earnest money on 25.6.1987. It was stipulated in the agreement that he will execute sale deed by 20.6. 1988 on receipt of the balance sale prices after adjustment of the loan due to the bank from him and the earnest money (ibid). In case of default on the part of Dalbir Singh in complying with the sale agreement, he (Kariar Singh) was entitled to Rs. 1.40 lac as consolidated damages being twice the amount of the earnest money or to enforce specific performance of the agreement on him (Dalbir Singh) through court. It was further stipulated in the agreement that in case Kartar Singh defaulted, earnest money paid by him would stand forfeited. Expenses of stamp and registration were to be borne by Kartar Singh. Before the arrival of the stipulated date for the performance of the agreement, he (Kartar Singh) approached Dalbir Singh alias Vir Singh with the balance sale consideration along with the amount required for meeting the expense of stamp and registration so that sale deed could be executed but defendant Dalbir Singh alias Vir Singh avoided receiving the balance sale consideration and the amount required for the purchase of stamp and meeting registration charges. Notice dated 16.6.1988 was served upon him calling upon him to receive the balance sale consideration and the amount required for the purchase of stamp and meeting registration charges and execute sale deed. On 20.6.1988, he appeared before the Sub Registrar, Guhla with the balance sale consideration and the amount required for the purchase of stamp and meeting the registration charges and waited for the defendant the whole day long. Defendant, however, did not turn up. Eventually, the plaintiff got attested an affidavit from the Sub Registrar, Guhla swearing these facts. It is alleged in the plaint that he was always ready and wiling to go ahead with the agreement and perform his part of the agreement but the defendant was recalcitrant and committed breach thereof. It is further alleged in the plaint that he is still ready and wiling to perform his part of the agreement and obtain sale deed from the defendant,

(2.) Defendant Dalbir Singh alias Vir Singh contested the suit of the plaintiff urging that agreement dated 23/25.6.1987 is sham, ineffective, inoperative, invalid, collusive and forged document/transaction and is not binding on him. During the harvesting season of Kharif 1985 i.e. in the month of November, 1985, he orally agreed to sell his agricultural produce through M/s. Dalbir Singh Harish Kumar commission agents Cheeka, Tehsil Guhla. Said firm acting through its partners Dalbir Singh son of Kartar Singh, Harish Kumar son of Dina Nath and Kala Singh son of Gurnam Singh agreed that they would sell agricultural produce sent by him to the said persons' shop at Cheeka Mandi and would on request render to him true and full accounts of the sale of the agricultural produce effected by him. It was further agreed between the parties that the said firm would lend money to him in advance before the harvesting of every crop and also during Kharif, 1985 so that he could meet his requirements and after the harvesting of the crop was over, he would be paid the amount which remains after the adjustment of the advance so taken by him with interest thereon @ 2% per month. The said firm sold his agricultural produce as his commission agent since Kharif, 1985 crop upto Kharif, 1987 and he used to receive the balance amount from the said firm after the settlement of accounts al the end of every harvesting crop. It was further urged that he used to append his thumb impression on the blank pronotes and bahi kept on the shop of the firm as desired by the aforesaid persons at the time of borrowing of the money and after settlement of accounts at the end of each harvesting crop in good faith and due to mutual trust and also because he had full faith and confidence in the honesty and integrity of the said firm and its partners. In the moth of December, 1985, he borrowed Rs. 28,000/ -from the said firm for repaying loan due from him to M/s. Sham Lal Mano -har Kumar commission agent, Cheeka through which he was selling his agricultural produce previously. In fact, after the harvesting of Rabi 1987 was over, a sum of Rs. 35,0007 - was told to be due from him to the said firm and with a view to getting security for the repayment of the said loan and amount to be advanced by the said firm to him in the ensuing crop, security in the form of agreement to sell was to be got executed from him in favour of the said firm or its partners or any body desired by them regarding the land owned and possessed by him measuring about 5 acres. It was also agreed upon between the parties that fictitious amount more than actual amount i.e. Rs. 35,000/ - shall also be mentioned there. Accordingly, on 23.6.1987, the defendant accompanied by one of the partners of the said firm namely Dalbir Singh son of Kartar Singh went to Gopi Chand, deed writer at Guhla and there stamp paper required for the execution of the agreement was purchased in his name and he appended his thumb impressions on the blank stamp papers, other papers and the register of the petition writer as asked for and desired by said Dalbir Singh son of Kartar Singh and the petition writer. He did so because he had full faith and confidence in the honesty and integrity of Dalbir Singh partner of the said firm. Said agreement was never intended to operate as agreement to sell. It was more in the form of security for the repayment of loan found to be due to the firm M/s. Dalbir Singh Harish Kumar commission agents Cheeka and to be advanced by this firm to him in the ensuing crop. For the first time on 2.3.1988, he came to know that instead of 5 acres of land, land measuring 112 kanals 1 marla had been mentioned and amount of Rs. 70,000/ - i.e. double of Rs. 35,000/ - the amount actually found to be due, was mentioned as earnest money alleged to have been paid by Kartar Singh who is father of one of the partners of the firm Dalbir Singh Harish Kumar in cash to the defendant on the said date and a fictitious date i.e. 20.6.1988 was shown to be fixed for the execution and registration of the sale deed pertaining to the said land and Rs. 20,000/ - was mentioned as the rate per acre of the agreed land which was much less than the market value of the similar land prevalent at that time. Kartar Singh was in fact a benami head and the real beneficiaries are the said firm and its partners and the name of Kartar Singh was intentionally shown to be an intended buyer with ulterior motive to circumvent the taxation and other prevalent laws.

(3.) After the harvesting season of Sawni 1987 and after the setllement of account by the said firm, an amount of Rs. 46,000/ - was in total told to be due from the defendant to the said firm inclusive of the amount of Rs. 35,000/ - told to be due after the settlement of accounts at the end of harvesting seasons of Asari, 1987. Thereafter, the defendant was asked and so advised by the said firm and its partners that the defendant could be advanced more money by the firm only if the defendant agreed to transfer the land as per the terms and conditions as described in the agreement dated 23/25.6.1987 or to transfer by way of sale his tractor bearing registration No. HRQ -722 Swaraj make along with implements either in their favour or in favour of any body desired by them. The defendant declined the first offer (after coming to know of the contents of the agreement to sell as told by the partners of the said firm namely Dalbir Singh son of Kartar Singh) and offered to sell his tractor as per the terms and conditions to be seltled by the respectables of his village, of course, in consultation with the said firm and its partners. On 27.2.1988, the defendant along with the persons namely Sohan Singh etc. visited the shop of the said firm where Kartar Singh, Gumam Singh sons of Ganga Singh resident of village Kasor and one Dina Nath (who is father of Harish Kumar) were also present. After a lot of discussion, it was agreed that the price of the said tractor along with is trolley would be Rs. 47,000/ -. Tracior along with its trolley would be transferred in favour of Gurnam Singh son of Ganga Singh with a view to ward off the technicality of the law and it was also agreed upon specifically mat the agreement dated 23/25.6.1987 will be treated as cancelled and will be handed over.to the defendant. All the formalities were complied with and, defendant along with Dalbir Singh son of Kartar Singh, Gurnam Singh son of Ganga Singh, Dina Nath and Balwant Singh and another visited the shop of the petition writer at Guhla and the relevant papers for the transfer of the tractor along with trolley were got executed from the defendant and the defendant, said Gurnam Singh and others appended their thumb impressions/signatures on the documenis and the register of the deed writer. On 1.3.1988, defendant again visited the shop of the said firm along with Sohan Singh etc. and handed over to them the said tractor trolley and registration book etc. Dalbir Singh partner of the firm (and son of Kartar Singh) at the asking of the defendant and the said persons accompanied him. issued receipt dated 1.3.1988 but told them that the original agreement dated 23/25.6.1987 shall be handed over to the defendant -on 2.3.J988 since the said agreement was lying somewhere else. On 2.3.1988 in the morning the defendant along with Sohan Singh etc. visited the shop of the said firm and demanded back the original agreement dated 23725.6.1987 but were told by Dalbir Singh that the said agreement was not traceable and shall be handed over to the defendant as and when it was iraced. There was an exchange of hot words between them on the one hand and Dalbir Singh son of Kartar Singh on the other. As the non -return of the said agreement by Dalbir Singh raised their eye brows and they felt apprehensive and doubtful regarding the bona fides of Dalbir Singh son of Kartar Singh, they kept on insisting upon the relum of the said agreement. They also told Dalbir Singh that the defendant would no more be their customer if the said agreement was not handed over to him then and there. Dalbir Singh son of Kartar Singh lost his cool and told them flatly that the said agreement -would not be returned, rather the firm would file suits against the defendant on the basis of the said agreement and on the basis of the bahi entries and blank pronotes bearing the thumb impressions of the defendant kept with the firm. Thereupon, the defendant and others told Dalbir Singh and oihers that they had reason to believe that the account regarding the sale of produce of the defendant through the said firm was not being rendered by the said firm truly and correctly to him and the defendant also demanded rendering of the true and correct accounts from Dalbir Singh son of Kartar Singh partner of the firm since Sawni l985toSawni 1987. Dalbir Singh son of Kartar Singh and others refused to render them true and correct accounts of the sale of the produce of Dalbir Singh alias Vir Singh by him with the firm. It was further urged that this agreement was forged inasmuch as in the register of the petition writer Gopi Chand, this agreement is shown to be dated 23.6.1987. Agreement produced in the suit for permanent injunction filed earlier by Kartar Singh was bearing the date 25.6.1987. In the injunction suit, temporary injunction was applied for. Along with the copy of the temporary injunction application, photocopy of the said agreement, affidavit etc. was sent to him. In the photocopy of the agreement, the signatures of Ashok Kumar attesting witness did not figure. In the agreement produced in the case, however, the signatures of Ashok Kumar figure which suggests that the signatures of Ashok Kumar were procured afterwards. It was further urged that in fact the agreement dated 23/25.6.1987 is the outcome of collusion, fraud and undue influence played and exercised by the said firm, its partners, deed writer, attesting witness, if any, and Kartar Singh. Defendant never agreed to sell land in favour of Kartar Singh out of free will and volition. It was civil suit No. 730 of 1997 (tilled Kartar Singh son of Ganga Singh v/s. Dalbir Singh alias Vir Singh. date of institution 9.8.i988) filed by Kartar Singh son of Ganga Singh (dead) represented by his son Dalbir Singh son of Kartar Singh for possession through specific performance.