'Agreement Of Sale A Sheer Piece Of Fraud & Concoction' : Supreme Court Sets Aside Decree For Specific Performance
The Supreme Court, while exercising jurisdiction under Article 136 of the Constitution, reversed the concurrent findings of the Trial Court, First Appellate Court, and High Court which had validated the sale agreement transcribed on one of the blank stamp papers on which the thumb impression of the defendant (illiterate) had been taken before its transcription. From the facts, the Court...
The Supreme Court, while exercising jurisdiction under Article 136 of the Constitution, reversed the concurrent findings of the Trial Court, First Appellate Court, and High Court which had validated the sale agreement transcribed on one of the blank stamp papers on which the thumb impression of the defendant (illiterate) had been taken before its transcription.
From the facts, the Court inferred 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.
As per the disputed agreement to sell, the plaintiff had paid a substantial chunk of the consideration amount against the purchase of the suit property to the appellant-defendant, wherein the remaining amount of 15% ought to be paid on the date of the registry. The date of registry i.e., Sep. 19, 2008, was fixed almost after some sixteen months of the date of execution of the agreement.
The specific performance of the contract for execution of the sale deed was sought by the plaintiff on the ground that the appellant-defendant failed to appear before the Registrar's Officer as agreed in the disputed agreement to sell.
Findings
The bench comprising Justices PS Narasimha and Sandeep Mehta observed that such a practice of the plaintiff to take the signature of the defendant on the blank paper before the transcription of the agreement is nothing but a "sheer piece of fraud and concoction."
"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 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."
“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.”, the court observed.
The Court also noted that the plaintiff was a Police Constable who had not obtained the permission from the department before entering into the transaction.
The Court took note of his act of directly appearing on the date of the registry before the registrar's office without even approaching once to the defendant in the said period of sixteen months to get the sale deed executed in terms of the disputed agreement.
“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 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.”, the court observed.
The court rejected the plaintiff's contention that he was ready and willing to execute the agreement to sell just because he appeared in the Registrar's Office. The court noted that the failure of the plaintiff to show that he carried the balance consideration on the date of the registry to pay to the defendant gave rise to a presumption that he was not ready and willing to execute the agreement to sell.
“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 September, 2008 or on 19th September, 2008, when the respondent-plaintiff appeared before the Sub-Registrar.”, the judgment authored by Justice Mehta said.
“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.”, the court observed.
“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.”, the court concluded.
The appeal succeeded and was hereby allowed.
Appearance:
For Petitioner(s) Mr. Ankit Goel, AOR Mr. Nikhil Sharma, Adv. Mr. Sahil Patel, Adv.
For Respondent(s) M/S. Lex Regis Law Offices, AOR Mr. Sunil Kumar Jain, AOR Ms. Reeta Chaudhary, Adv.
Case Title: LAKHA SINGH VERSUS BALWINDER SINGH & ANR., C.A. No. 010893 / 2024
Citation : 2024 LiveLaw (SC) 755