GAURI SHANKAR Vs. HARMESH SINGH AND ANOTHER

JUDGEMENT

(1.) This regular second appeal has been filed against the judgment and decree of the learned lower appellate court, whereby, the appellant has been directed to return a sum of Rs.3 lac along with interest @ 6% per annum to the plaintiff - respondents.

(2.) The respondents had filed a suit for possession by way of specific performance of agreement to sell with consequential relief of permanent injunction. The case set up in the plaint was that the defendant - appellant was allotted a flat by Housing Board, Faridabad bearing No.1220A, Ground Floor LIG, Sector-2, Housing Board Colony, Faridabad measuring 27.54 sq. meters vide higher-purchase tenancy agreement dated 19.10.2007. On 9.12009 the defendant entered into an oral agreement to sell with the plaintiff - respondents to sell the suit property. Initially on 9.12009, the plaintiffs paid a token money of Rs.1 lac as advance payment. The defendant in the presence of the witnesses executed a receipt for the same. As per the initial terms and conditions of the agreement it was agreed that the sale deed would be executed on or before 15.04.2010. It was presumed that the plaintiffs would obtain a loan from the Bank by then. However, the plaintiffs were not able to get a loan from the bank as the defendant could not sell the property till April, 2018, the period of full hire purchase tenancy agreement. On 1.2010, the oral agreement dated 9.12009 was reduced into writing by the plaintiffs and defendant in the presence of witnesses. The total sale consideration of the property was settled at Rs.12, 99, 000/-. 1.6.2010 was mutually agreed upon as the date for execution of the sale-deed. Before that date, the plaintiffs had paid earnest money of Rs.3, 00, 000/- on various dates and defendants had executed separate receipts dated 9.12009, 4.1.2010 and 3.5.2010 in the presence of witnesses. On 1.6.2010, the plaintiffs went to the office of the sub-Registrar, Ballabhgarh along with balance sale consideration and stamp duty, but the defendant did not turn up for execution of the sale-deed. The plaintiffs waited till 5.00 pm and got their presence marked in the office of the sub-Registrar, Ballabhgarh along with an affidavit, duly attested by the Executive Magistrate, Ballabhgarh. On failure of the defendant - appellant to execute the sale-deed despite a legal notice dated 3.6.2010, the suit was instituted with the reliefs aforesaid.

(3.) The case of the defendant was that in the agreement to sell, no date of execution was written. The plaintiffs had retained the original copy of the agreement. The defendant was handed over a photocopy of the said agreement, in which the last date for execution of sale-deed was mentioned as 15.4.2010, which was in the handwriting of plaintiff No.1. On 15.4.2010, the defendant reached the office of sub-Registrar, Ballabhgarh and waited for the plaintiffs, but they did not reach. The defendant got his presence marked before the office of sub-Registrar, Ballabhgarh. On 27.4.2010, the defendant was called to the Police Station, City Ballabhgarh, where plaintiff No.1 Harmesh along with some others and an Advocate were present. The Sub Inspector showed them the original agreement to sell, in which the date of execution and registration of sale-deed was blank. The defendant was told that the plaintiffs would fill another date for execution and registration of sale-deed and get executed the sale-deed in respect of the suit property. Plaintiff No.1 filled up the date for execution as 1.6.2010 in the original agreement to sell in his own hand-writing and handed over a photocopy thereof to the defendant with the date of execution as 1.6.2010. Plaintiff No.1 wrote out a compromise dated 27.4.2010 in his own handwriting and obtained signatures of the defendant on that compromise forcibly and under duress.