Akbar Ali Vs. Vinod Khanna & Anr.
EmailAppeal: Civil Appeal Nos. 73-74 of 1999
(From the Judgment and Order dated 28.10.1997 of the Allahabad High Court in Regular Second Appeal Nos. 824 and 836 of 1993)
(From the Judgment and Order dated 28.10.1997 of the Allahabad High Court in Regular Second Appeal Nos. 824 and 836 of 1993)
Petitioner: Akbar Ali
Respondent: Vinod Khanna & Anr.
Apeal: Civil Appeal Nos. 73-74 of 1999
(From the Judgment and Order dated 28.10.1997 of the Allahabad High Court in Regular Second Appeal Nos. 824 and 836 of 1993)
(From the Judgment and Order dated 28.10.1997 of the Allahabad High Court in Regular Second Appeal Nos. 824 and 836 of 1993)
Judges: ASHOK BHAN & S.H. KAPADIA, JJ.
Date of Judgment: Jul 30, 2004
Appearances:
Mr. Ambrish Kumar, Advocate for the Appellant.
Mr. Harinder Mohan Singh, Ms. Shabana Saifi, Mr. Kaushal Yadav and Mr. Anil Hooda, Advocates for the Respondent.
Mr. Harinder Mohan Singh, Ms. Shabana Saifi, Mr. Kaushal Yadav and Mr. Anil Hooda, Advocates for the Respondent.
Head Note:
SPECIFIC RELIEF
Specific Relief Act, 1963
Section 16 – Civil Procedure Code, 1908 – Order 8 – Rules 1 to 5 – Specific performance – Defence – Written statement confined to the fact that fraud was played and instead of preparing document to secure loan, agreement to sell got executed – Plea not successful – In SLP, point raised about agreement being unconscionable as value of land was more than Rs. 20 lacs but agreement was only for Rs. 1 lac. No pleadings – No issues. Held that in the absence of pleadings, agreement cannot be held to be unconscionable. (Para 3)
Specific Relief Act, 1963
Section 16 – Civil Procedure Code, 1908 – Order 8 – Rules 1 to 5 – Specific performance – Defence – Written statement confined to the fact that fraud was played and instead of preparing document to secure loan, agreement to sell got executed – Plea not successful – In SLP, point raised about agreement being unconscionable as value of land was more than Rs. 20 lacs but agreement was only for Rs. 1 lac. No pleadings – No issues. Held that in the absence of pleadings, agreement cannot be held to be unconscionable. (Para 3)
JUDGEMENT:
BHAN, J.
1. Plaintiff/appellant (hereinafter referred to as “the appellant”) entered into a registered agreement to sell the land measuring 3.40 acres on 8.4.1996 with the defendant/respondents (hereinafter referred to as “respondents”). Two suits were filed in the trial court. Suit no. 139 of 1987 was filed by the appellant for cancellation of the written agreement dated 8.4.1996 with the averment that the appellant was bhumidhar in possession of the disputed plots mentioned in the plaint, defendant nos. 1 and 2 were money lenders and defendant no. 3 was their servant (who has not been impleaded as party in the civil appeal). Appellant needed Rs. 1000/-. Defendant no. 3 took the appellant to respondent nos. 1 and 2 who declined to advance the loan of Rs. 1000/- on a promissory note and insisted to advance the loan through a registered document. Appellant agreed to execute the registered agreement to secure the loan and went to the office of the sub-registrar along with the defendants on 8.4.1996. Agreement was prepared and typed on the stamp paper and signatures of the appellant were obtained and he was advanced a sum of Rs. 1000/- as loan. The agreement was registered on the same day. The appellant wanted to repay the loan but when the respondents did not accept the same he got suspicious about their intention. He made enquiries and came to know that a fraud was practised on him by respondents who fraudulently got executed the agreement to sell instead of the document to secure the loan of Rs. 1000/-. Suit was filed for the cancellation of the agreement to sell. Suit no. 425 of 1987 was filed by the respondents for specific performance of agreement to sell with the averment that the appellant had agreed to transfer the suit land for Rs. one lac out of which Rs. 30,000/- was paid to him as earnest money. According to the terms of the agreement the appellant was to execute the sale deed within 11 months after obtaining permission from the consolidation officer. As appellant refused to execute the sale deed the suit was filed for specific performance of the agreement. Both the suits were contested.
2. The trail court dismissed the suit filed by the appellant for cancellation of the agreement and decreed the suit filed by the respondents for specific performance. Appellant filed an appeal against the order passed in suit no. 425 of 1997 which was dismissed by the first appellate court. Aggrieved against which the appellant filed second appeal which has been dismissed by the impugned order.
3. The High Court on re-appreciation of the entire evidence came to the same conclusion as that of the courts below. Counsel for the appellants failed to point out any error in the findings recorded by the courts below. The only contention raised by him is that the agreement was unconscionable as the price of land at the time of the alleged agreement to sell was more than 20 lacs and the appellant is being deprived of his valuable land for a petty amount. On perusal of the written statement filed by the appellant in the trial court we find that no such plea was raised in the written statement. No issue was framed. No evidence was led by the appellant to prove that the market price of the land was Rs. 20 lacs as argued before us. In the absence of plea having been raised or an issue framed or evidence led on the point, we are unable to hold that the agreement to sell was unconscionable.
4. We do not find any error in the judgments and decrees passed by the courts below, accordingly, the appeals are dismissed with no order as to costs.
1. Plaintiff/appellant (hereinafter referred to as “the appellant”) entered into a registered agreement to sell the land measuring 3.40 acres on 8.4.1996 with the defendant/respondents (hereinafter referred to as “respondents”). Two suits were filed in the trial court. Suit no. 139 of 1987 was filed by the appellant for cancellation of the written agreement dated 8.4.1996 with the averment that the appellant was bhumidhar in possession of the disputed plots mentioned in the plaint, defendant nos. 1 and 2 were money lenders and defendant no. 3 was their servant (who has not been impleaded as party in the civil appeal). Appellant needed Rs. 1000/-. Defendant no. 3 took the appellant to respondent nos. 1 and 2 who declined to advance the loan of Rs. 1000/- on a promissory note and insisted to advance the loan through a registered document. Appellant agreed to execute the registered agreement to secure the loan and went to the office of the sub-registrar along with the defendants on 8.4.1996. Agreement was prepared and typed on the stamp paper and signatures of the appellant were obtained and he was advanced a sum of Rs. 1000/- as loan. The agreement was registered on the same day. The appellant wanted to repay the loan but when the respondents did not accept the same he got suspicious about their intention. He made enquiries and came to know that a fraud was practised on him by respondents who fraudulently got executed the agreement to sell instead of the document to secure the loan of Rs. 1000/-. Suit was filed for the cancellation of the agreement to sell. Suit no. 425 of 1987 was filed by the respondents for specific performance of agreement to sell with the averment that the appellant had agreed to transfer the suit land for Rs. one lac out of which Rs. 30,000/- was paid to him as earnest money. According to the terms of the agreement the appellant was to execute the sale deed within 11 months after obtaining permission from the consolidation officer. As appellant refused to execute the sale deed the suit was filed for specific performance of the agreement. Both the suits were contested.
2. The trail court dismissed the suit filed by the appellant for cancellation of the agreement and decreed the suit filed by the respondents for specific performance. Appellant filed an appeal against the order passed in suit no. 425 of 1997 which was dismissed by the first appellate court. Aggrieved against which the appellant filed second appeal which has been dismissed by the impugned order.
3. The High Court on re-appreciation of the entire evidence came to the same conclusion as that of the courts below. Counsel for the appellants failed to point out any error in the findings recorded by the courts below. The only contention raised by him is that the agreement was unconscionable as the price of land at the time of the alleged agreement to sell was more than 20 lacs and the appellant is being deprived of his valuable land for a petty amount. On perusal of the written statement filed by the appellant in the trial court we find that no such plea was raised in the written statement. No issue was framed. No evidence was led by the appellant to prove that the market price of the land was Rs. 20 lacs as argued before us. In the absence of plea having been raised or an issue framed or evidence led on the point, we are unable to hold that the agreement to sell was unconscionable.
4. We do not find any error in the judgments and decrees passed by the courts below, accordingly, the appeals are dismissed with no order as to costs.
