BHANWARIYA Vs. SHEOJI RAM & ANOTHER

JUDGEMENT

(1.) The appellant-defendant is aggrieved by the judgment dated 7.10.2013 passed by the Additional District and Sessions Judge, Kishangarh, District Ajmer, whereby the learned Judge has allowed the suit filed by the respondent-plaintiff. The learned Judge has directed the appellant-defendant to receive the remaining outstanding amount within two months from the date of the judgment, and to repay the loan amount to the Bank, the defendant-respondent No.2, and after getting the no-objection certificate from the defendant-respondent No.2, to execute the sale-deed in favour of the respondent-plaintiff. The learned Judge has also directed that if the appellant-defendant fails to execute the sale-deed after getting the no-objection certificate from defendant-respondent No.2, then the respondent-plaintiff shall be entitled to repay the loan amount to the bank, to get the no-objection certificate from the bank and to get the sale-deed registered through the Court within a period of one month from the date of getting the no-objection certificate from the bank. The directions were subject to the respondent-plaintiff depositing the outstanding amount which he may owe to the appellant-defendant.

(2.) The brief facts of the case are that the respondent-plaintiff filed a suit against the appellant-defendant for specific performance and permanent injunction. The respondent-plaintiff pleaded that there is a land bearing khasra Nos.754, 767/1 and 767/2 admeasuring 17 Bigha 15 Biswa situated at Village Tyod, Teshsil Kishangarh, District Ajmer, under the ownership and possession and cultivatory possession of the appellant-defendant. The appellant sold the aforesaid land, through agreement to sell dated 12.6.2009, in the presence of witnesses, and after receiving Rs.5,75,000/- in cash, to Sheoji Ram, the respondent-plaintiff. Earlier, the appellant had taken a loan on the said land from the Bank, the defendant-respondent No.2. The loan amount was outstanding at the time of the execution of the agreement to sell. It was agreed between the parties that the outstanding amount would be paid within a period of one month i.e. 12.7.2009 by the purchaser; he would get the no-objection certificate from the Bank; thereafter, the registry shall be made either in the name of the purchaser, or in the name of the proposed person. It was also agreed between the parties that if the purchaser does not make payment within the one month period, then the token amount will be forfeited and respondent-plaintiff will not get the token amount back; if the appellant-defendant fails to execute the agreement to sell in the name of the purchaser after getting the no-objection certificate from the bank, then seller would pay double the advance amount in lump sum. However, even after the respondent-plaintiff requested repeatedly to execute the agreement, the appellant-defendant did not execute the agreement in favour of respondent-plaintiff. A legal notice was sent to the appellant-defendant. The appellant-defendant declined the agreement to sell. Therefore, suit for specific performance and permanent injunction was filed by the respondent-plaintiff against the appellant-defendant.

(3.) The learned counsel for the appellant has contended that the agreement to sell (Exhibit-1) was entered between the parties after the respondent-plaintiff, Sheoji Ram, had played fraud upon the appellant-defendant. According to the appellant, his son, Vishram, was working with the respondent-plaintiff. The respondent-plaintiff had alleged that Vishram had stolen a tractor. In order to resolve the dispute, the appellant and his son were called for entering into a compromise. However, instead of entering into a compromise, he was asked to put his thumb impression on the agreement to sell. Thus, the agreement has been procured by playing a fraud. Since the agreement has been procured by playing fraud, the agreement loses all its legal validity. Secondly, the respondent-plaintiff has himself denied knowing the contents of the agreement which clearly shows that the agreement has been entered into between the parties after a fraud was played upon the appellant. Thirdly, according to the agreement in case the appellant were to fail in getting the sale-deed registered, the respondent-plaintiff would be entitled to receive twice the amount of consideration. Thus, according to the learned counsel, a decree for specific performance could not be passed by the learned Trial Court. The plaintiff at best would be entitled to receive the double the amount of the consideration. Thus, the learned Judge has erred in making the directions aforementioned. Hence, the judgment deserves to be interfered with.