JARNAIL SINGH Vs. AMRIK SINGH

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'), challenging concurrent finding of facts recorded by both the Courts below. It has been concurrently held that the agreement to sell the property to the plaintiff- appellant was executed by the defendant-respondent on 5.5.1998 and a sum of Rs. 1,50,000/- was paid to him as earnest money. It has further been held that the aforementioned amount of Rs. 1,50,000/- paid by the plaintiff- appellant as earnest money was returned to him by the defendant-respondent as is proved by the affidavit Ex. D-4 executed by the plaintiff-appellant. Both the Courts below have also found it is a fact that the plaintiff-appellant also received interest on the earnest money of Rs. 1,50,000/- paid by the plaintiff-appellant in pursuance of the agreement to sell. Three receipts have also been proved on record Exs. D1, D-2 and D-3 showing payment of interest from 7.10.1998 to 7.11.1998; 7.11.1998 to 7.12.1998 and also in respect of the period before 7.10.1998. A sum of Rs. 18,750/- and Rs. 3750/- as interest have been duly received by the plaintiff-appellant. The conclusion reached by the Courts below is that it was a money transaction and the agreement to sell dated 5.5.1998 was only to ensure repayment of loan. The views of the learned District Judge read as under :-

(2.) MR . G.S. Punia, learned counsel for the plaintiff-appellant has argued that it is not proper to accept the findings recorded by both the Courts below because no proof was furnished to prove the affidavit Ex. D-4. According to the learned counsel, the plaintiff-appellant has produced the Finger Print Expert Ms. Jassy Ahluwalia, as PW-4, who has opined in her report Ex. PW-4/1 that the standard signatures of the plaintiff-appellant on comparison on the affidavit Ex. D-4 were found to be of different person. Learned counsel further pointed out that no inference could be drawn by leading oral evidence under Section 91 of the Indian Evidence Act, 1872 (for brevity, 'the Act') to contradict the contents of the documents and then to conclude that the agreement to sell dated 5.5.1988 was, in fact, a money transaction. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of M/s. Fabril Gasosa v. Labour Commissioner and others, A.I.R. 1954 Supreme Court 954. The learned counsel has further argued that the Advocate, who represented the defendant-respondent before the Court has also attested the affidavit Ex. D-4 in his capacity as a Notary Public.

(3.) THE other argument raised by the learned counsel that no parol evidence under Section 91 of the Act could be produced, has also not impressed me because on the perusal of Ex. D-4 the affidavit and Exs. D-1 to D-3 the receipts, the Courts below have reached the conclusion that it was merely a loan transaction between the parties and they did not intend to act upon the agreement to sell dated 5.5.1998. The inference of loan transaction has been raised on account of the fact that the interest in respect of the earnest money of Rs. 1,50,000/- has been paid. The judgment of the Supreme Court in the case of M/s Fabril Gasosa (supra) relied upon by the learned counsel for the plaintiff-appellant would not be attracted to the facts of the present case. It is no doubt well settled principle of law as enshrined in Sections 91 and 92 of the Act that when the contents of a contract are reduced to writing, then no extrinsic evidence is generally admissible to vary, to add or contradict such a written agreement. The statement of this principle was made by Justice P.O. Lawrence in the case of Jacov v. Batavia and General Plantation Trust (1924-1) Ch. 287 in the following words :-