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TMI Blog2000 (12) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... pt 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 ₹ 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing 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 ₹ 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 ₹ 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. ₹ 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 Dal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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 ₹ 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 compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... albir 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the honesty and integrity of defendants 1 to 4. He borrowed an amount of ₹ 28,0007- from defendants 1 to 4 in the month of December 1985 for repaying the amount due from him by way of loan which he had taken from his previous aarhita M/s. Sham Lal Mano-har Kumar. After the settlement of the accounts at the end of harvesting of the crop of Had 1987 in the last week of month of June 1987, he was told by defendants 1 to 4 that an amount of ₹ 35.000/- had become due from the plaintiff to defendants 1 to 4. He was further told that since an amount of ₹ 35,000/- had become already due from him, further advance could be made to him by the firm only if he agreed to give security for the said amount and also for the advance required by him in future from the firm in the coming seasons. In this way, he was induced by defendants 1 to 4 to execute an agreement to sell regarding his agricultural land in favour of defendants 1 to 4 or any body desired by the said defendants as security for the repayment of the loan. Being simpleton, illiterate and rustic, he was made to agree to the said proposal of defendants 1 to 4. Accordingly, on the same day, he along with defendants 1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of defendants I to 4 and handed overto them the said tractor trolley along with registration book on 1.3.1988, Dalbir Singh, at the asking of the plaintiff and Balwant Singh etc. accompanying him, issued receipt in his hand to the effect that the firm had received all amount from the plaintiff which was due to the firm from him. About the agreement, it was stated that it would be delivered to him on 2.3.1988. On 2.3.1988, agreement was, however, not returned to him-. Plaintiff became suspicious about the honesty and integrity of the defendants when they did not return to him that agreement despite his telling that if agreement was not returned to him, he would break with them and not sell his produce with them, thereupon, he and others accompanying him told defendant No. 2 that they had reasons to believe that they had not rendered truly and faithfully the accounts to him and demanded rendering of true and correct accounts. Defendant No. 2 refused to return the agreement to him and rather threatened that the firm would file suit against him on the basis of the agreement and also on the basis of bahi entries and also on the basis of blank pronotes with them in that eventuality. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in both the suits, Dalbir Singh alias Vir Singh filed two appeals namely civil appeal No. 358 of 1998 and 359 of 1998. Vide order dated 26.5.1999, Additional District Judge, Kaithal dismissed both the appeals through the same common judgment. 10. Feeling still dissatisfied, Dalbir Singh alias Vir Singh son of Hazara Singh has knocked the door of this court through two appeals namely RSA. No. 2557 of 1999 which has arisen out of suit for specific performance which has been decreed by the two courts below and RSA no. 4155 of 1999 which has arisen out of suit for declaration and rendition of accounts filed by Dalbir Singh alias Vir Singh son of Hazara Singh against firm M/s. Dalbir Singh Harish Kumar and others which has been dismissed by the two courts below. 11. Since in both these appeals, the same question of law and fact arise for decision by this Court, I would dispose of both these appeals through this common judgment. 12. Kartar Singh son of Ganga Singh (dead) represented by his son Dalbir Singh claimed specific performance of the agreement to sell Ex.D1 dated 23/25.6.1987 against Dalbir Singh alias Vir Singh son of Hazara Singh qua land measuring 112 kanal 18 marla = ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him. It was also agreed that M/s. Dalbir Singh Harish Kumar would lend him money in advance before the harvesting of the crop so that he was able to meet his domestic as well as agricultural expense. It was also agreed that at the end of every harvesting season, the balance amount due, if any, would be paid to him after adjustment of advance money along with interest at prevailing market rate of 2%. He effected sale of the agricultural produce relating to kharif, 1985 upto Kharif 1987 and he received the balance amount from M/s Dalbir Singh Harish Kumar after the settlement of the account at the end of every harvesting season after adjustment of advance money together with interest. As per Dalbir Singh alias Vir Singh son of Hazara Singh , he used to append his thumb impressions on blank pronotes and the bahis as and when he was asked to do so by them at the time of borrowing of the money and at the time of settlement of accounts at the end of each harvesting season. He appended thumb impressions on blank pronotes and their bahis in good faith. He had full faith and confidence in the integrity and honesty of M/s Dalbir Singh Harish Kumar. As per Dalbir Singh alias Vir Singh, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y desired by them. He stated that he declined to sell his agricultural land but agreed to transfer tractor with the necessary implements. On 27.2.1988, he along with Sohan Singh etc. visited the shop of M/s Dalbir Singh Harish Kumar where Kartar Singh. Gur-nam Singh son of Ganga Singh and one Dina nath son of Ska Ram were found present. Dina Nath is father of Harish Kumar who is partner in M/s Dalbir Singh Har-ish Kumar. He staled that at the shop of the petition writer, their insistence was that he should sell the land. He agreed to sell tractor after initial hesitation. Tractor and its implements were assessed to be of the value of ₹ 47,000/-. It was to be transferred in favour of Gur-nam Singh. (It may be mentioned here that Gumam Singh is son of Ganga Singh i.e. real brother of said Kartar Singh). He stated that after the sale of the tractor and its implements, a sum of ₹ 1,0007- remained due to him which was never paid. He stated that he never agreed to sell land measuring 112kanal 18 marla i.e. 5/7 share of land measuring 158 kanal 1 marla which was his be all and end all rather his hearth and home. He stated that with the sale of land measuring 112 kanal 18 marla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no mention of any amount of ₹ 28,000/- advanced to Dalbir Singh son of Hazara Singh in December, 1985 or any time. He stated that no amount of ₹ 35,000/- was found due at the end of Rabi, 1987 from Dalbir Singh son of Hazara Singh. He stated that their firm as such never asked for any security from Dalbir Singh. Their firm never asked Dalbir Singh son of Hazara Singh that he should place with them 2-4 kilas of land by way of security. He further stated that his father Kartar Singh had nothing to do with firm M/s Dalbir Singh Harish Kumar. He stated that these are two independent and distinct transactions, namely the agreement to sell Ex.Dl and the sale of tractor together with its implements for ₹ 46,000/- with Gurnam Singh. He stated that no panchayat ever came to them. Their firm never told the panchayat that they would cancel the agreement to sell. He further slated that he never executed any receipt dated 1.3.1988 giving full discharge to Dalbir Singh son of Hazara Singh so far as dues of the firm from him were concerned. He further stated that agreement Ex.Dl was executed by Dalbir Singh alias Vir Singh son of Hazara Singh in favour of his father. His ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Contract Act, 1872 means that "a contract is said to be induced by undue influence where the relation subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other; (iii) where a person who is in a position to dominate the will of the other enters into a contract with him and the transaction, appears on the face of it or on the evidence adduced found to be unconscionable, the burden of proving that such contract was not inducted by undue influence, shall lie upon the person who is in a position to dominate the will of the other." It was submitted that it lay upon M/s Daibir Singh Harish Kumar/Kartar Singh to prove that he had really intended to sell his entire land measuring 112 kanal 18 marla when he had known that after the sale of this land, he would not be left with any land to bank upon so far as his livelihood was concerned. It was submitted that he is a farmer. Agriculture is his main-stay. Sale of his entire land would bring in some liquid money to him. It was submitted that in the hands of an illiterate farmer whose main- stay is agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ganga Singh while receipt Ex.PW4/A is a transaction between Daibir Singh son of Hazara Singh and M/s Daibir Singh Harish Kumar. It was further submitted that there is no evidence that any amount of ₹ 70,000/- was really paid at the time of execution of the agreement Ex.Dl. Agreement Ex.Dl was scribed by Gopi Chand petition writer Guhla. It was signed by Kartar Singh. It purports to have been executed on 25.6.1987. It was submitted that agreement Ex.D1 was scribed on 23.6.1987 and at the time when it was scribed, Ashok Kumar was not present. It was not attested by Ashok Kumar in the presence of the scribe on 23.6.1987. Agreement was taken by Kartar Singh on 23.6.1987 with him when it did not bear the attestation of Ashok Kumar. In support of this submission, he submitted that Kartar Singh had earlier filed suit for permanent injunciion. In that suit, he made an application under Order 39 Rules 1 and 2 CPC for the grant of temporary injunction. Copy of that application, affidavit, agreement, etc. was sent to Daibir Singh son of Hazara Singh. They were photostat copies. In the Photostat copy of the agreement, the attestation by Ashok Kumar does not figure. 19. It was submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, photostat copies of jamabandi and the agreement. (At the same time he stated that he was unable to say whether mark A to B are those which he had put in this envelope). He stated that mark A to E did not bear his signatures or the signatures of R.P. Gupta, Advocate. It was submitted by the learned Counsel for the appellant that if Dalbir Singh alias Vir Singh had taken ₹ 70,000/- from Kartar Singh on 23.6.1987 or 25.6.1987, he would not have taken ₹ 2450/-, 350/, 700/-, 125/-, 450/-, 50/-, 60/-, 2810/-, 1778/-, 539/-, 1050/-, 200/- and so on 25.6.1987, 27.6.1987, 29.6.1987 and so on. It was submitted that this shows that agreement Ex.Dl was fake. 20. It was submitted that in agreement Ex.Dl, there is recital that possession was delivered (which factually is not correct) because possession is with Dalbir Singh alias Vir Singh son of Hazara Singh. It was not shown that Hazara Singh had amount of ₹ 70,000/- with him on 23/25.6.1987 or that he withdrew that amount from somewhere, if Kartar Singh is not taken any different from M/s Dalbir Singh Harish Kumar. It was submitted that the falsity of agreement Ex.Dl stands explained. Receipt Ex.PW4/A dated 1.3.1988 is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Singh of his free will and volition and for consideration. It was submitted that the attestation by Ashok Kumar is missing on the photostat copy because it was not sent by Kartar Singh to Dalbir Singh alias Vir Singh and this photostat copy was substituted by Dalbir Singh alias Vir Singh with the genuine photostat copy which had really been sent to him. There is no evidence to sustain this submission. Faced with this position, it was submitted that both the courts below have concurrently found, after the appraisal of entire evidence, that there was breach of agreement on the part of Dalbir Singh alias Vir Singh son of Hazara Singh which was a genuine agreement executed for consideration. It was also submitted that it was concurrently found that Kartar Singh was entitled to the grant of specific performance. It was submitted that such a finding of fact cannot be disturbed in second appeal. In support of this submission, he drew my attention to Sadhu v. Mst. Kishni, 1979 PLR 577, where it was held that where the courts below after appraisal of the entire evidence on the record had given a concurrent finding of fact that the defendant-respondent had performed Karewa marriage and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 24. In this case, it is true that both the Courts below have concurrently found in favour of Kartar Singh. Findings of fact arrived at by them, however, are unsustainable in law as they are based on no evidence. Both the courts below have forgotten to take into account that there was fiduciary relationship between Dalbir Singh alias Vir Singh son of Hazara Singh and Kartar Singh and therefore, they should have accepted better proof from Kartar Singh as to that agreement Ex.Dl was for consideration and that he had taken no unfair advantage over Dalbir Singh alias Vir Singh son of Hazara Singh who was farmer bringing his agricultural produce for sale to M/s. Dalbir Singh Harish Ku-mar arhtiya at Cheeka Mandi. Both the courts below have forgotten to take into account that he was always in the grip of the arhtiya. He was constantly in need of borrowings from his arhliya. Without his arhtiya, he could not meet either his domestic expense or agricultural expense. Both the courts below have forgotten to lake into account whether agreement Ex.Dl was the result of free will and volition of Dalbir Singh alias Vir Singh and there was no undue influence on him in the execution of that ag ..... 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