Punjab-Haryana High Court
Gurdeep Singh vs Sukhpreet Kaur @ Satnam Kaur on 3 July, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:082081
RSA-2524-2022 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
128
RSA-2524-2022 (O&M)
Date of decision: 03.07.2024
GURDEEP SINGH ..Appellant
Versus
SUKHPREET KAUR @ SATNAM KAUR ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Rishabh Gupta, Advocate
for the appellant.
Mr. Inderjit Singh Brar, Advocate
for respondent.
ANIL KSHETARPAL, J(Oral)
1. In this regular second appeal, the defendant assails the correctness of the First Appellate Court's judgment, which in turn has reversed the judgment of the trial Court.
2. The First Appellate Court has granted alternative relief of recovery of Rs.10,10,000/- along with the interest upto date at the rate of 18% per month.
3. In order to comprehend the issues involved in the present case, the relevant facts, in brief, are required to be noticed.
4. The parties are related to each other. The appellant is the uncle, whereas, the respondent is his niece. The appellant is residing in the United States of America. The respondent filed suit for possession by way of specific performance of the agreement to mortgage on the basis of a written agreement to mortgage dated 27.03.2014. As per the aforesaid agreement, the petitioner agreed to mortgage his land in favour of the respondent for a sum of Rs.10,10,000/-. He received Rs.10,00,000/- as earnest money, 1 of 5 ::: Downloaded on - 21-07-2024 06:14:18 ::: Neutral Citation No:=2024:PHHC:082081 RSA-2524-2022 (O&M) -2- whereas, the mortgage deed was agreed to be executed on 13.03.2017. The defendant while contesting the suit claimed that he never intended to mortgage the land. He claims that his brother Sh. Karanjeet Singh has bad habits. Hence, Sh. Karanjeet Singh, his brother executed gift deed and sale deed on 12.03.2014. The signatures of the appellant have been obtained by the respondent at that time.
5. Originally, the suit was decreed ex parte, however, subsequently, on an application filed by the appellant, the same was set aside and the appellant was permitted to contest. Ultimately, the trial Court dismissed the suit, however, the First Appellate Court granted alternative relief of recovery of the amount.
6. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.
7. The learned counsel representing the appellant made the following submissions:-
i. The plaintiff has not stepped into the witness box after the ex parte decree was set aside. Hence, adverse inference is required to be drawn against her. ii. The plaintiff (respondent) has failed to prove the payment of Rs.10,00,000/- as she has not examined the person, who gave her Rs.6,00,000/-. She has also not proved withdrawal of the remaining amount from the Bank.
iii. The signatures of the appellant were taken on blank papers by deceit on 12.03.2014 when gift deed and sale deed were executed as the marginal witness of the gift 2 of 5 ::: Downloaded on - 21-07-2024 06:14:19 ::: Neutral Citation No:=2024:PHHC:082081 RSA-2524-2022 (O&M) -3-
deed, sale deed and the agreement to mortgage are common.
iv. He further submits that in order to adjust the signatures of the appellant on second page of the agreement to mortgage, 1/3rd space on the top has been left blank.
8. Per contra, the learned counsel representing the respondent while opposing the appeal submits that the appellant has failed to prove that his signatures were obtained on blank papers on 12.03.2014. He submits that the appellant signed in the register of the scribe on 27.03.2014 and the aforesaid entry has been proved by examining the scribe namely Sh. Manjit Singh Kingra.
9. This Court has considered the submissions of the learned counsel representing the parties.
10. Ex.P-1 is the mortgage agreement, which is scribed on a non- judicial stamp paper of Rs.500/-. It has been scribed on two pages. On the first page, the appellant has signed at the end of the page, where there is small space at the bottom. At the second page, he has again signed where the recital of the agreement to mortgage concludes. He has also signed in the register of scribe, who is maintaining his register in regular course of business. The entry in the register of the scribe has been proved by examining Sh. Manjit Singh Kingra, the scribe. Thus, heavy onus lay upon the appellant to prove that his signatures were obtained on blank papers. He has also not stepped into the witness box. There is a written contract between the parties, which is duly signed by the appellant. He was required to prove that his signatures were obtained fraudulently, however, he failed to prove the same.
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11. With reference to the first argument of the learned counsel representing the appellant, it may be noted that though the plaintiff appeared when defendant was ex parte, however, she appeared through her husband Sh. Balwinder Singh, subsequently. It has come on record that Sh. Balwinder Singh is working in Lebanon. He has remitted Rs.6,00,000/- to his wife. He has faced volley of questions put by the learned counsel representing the appellant, however, his credibility could not be impeached. Once, the plaintiff's husband has been examined and she has led sufficient evidence to prove her case, there is no occasion to draw inference. She has also examined Sh. Joginder Singh, the witness of the agreement to mortgage (Ex.P-1).
12. With reference to the second argument, it may be noted that she has already examined her husband, who had remitted the amount from Lebanon. Hence, the person, who ultimately delivered the amount to the wife was not required to be examined. In any case, the civil suit is required to be decided on preponderance of evidence. The plaintiff in order to prove her case has examined marginal witness and scribe of the document as well as her husband, whereas, the defendant has failed to appear in evidence to prove that his signatures were obtained on blank papers. Hence, the second argument of the learned counsel representing the appellant lacks substance.
13. With reference to the next argument of the learned counsel representing the appellant, it may be noted that the appellant has failed to prove that his signatures were obtained on blank papers particularly when he has appended his signatures on both the pages as well as in the register of the scribe.
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14. The last argument of the learned counsel representing the appellant also lacks substance because the space left at the top of both the pages is almost similar. The first page of the agreement to mortgage is a printed non-judicial stamp paper of Rs.500/-. After leaving sufficient space, the agreement to mortgage has been typed. On the second page, similar space was left. The recitals of the agreement concluded in the lower half of the page. Immediately, the appellant appended his signatures. Hence, there is no evidence to conclude in order to adjust the signatures of the appellant unnecessarily lot of blank space was left on the top of the page.
15. However, there is apparent error in the judgment of the First Appellate Court. The First Appellate Court has erred in granting recovery of Rs.10,10,000/- along with interest at the rate of 18% per month. First of all, there is no evidence that the respondent suffered any damages. The Court has granted Rs.10,000/- as damages without any evidence. Moreover, there was no occasion for the First Appellate Court to award the amount along with interest at the rate of 18% per annum. As already noticed, the parties are closely related. In the facts and circumstances of the present case, the decree passed by the First Appellate Court is modified and there shall be decree of recovery of Rs.10,00,000/- along with interest at the rate of 9% per annum from the date of filing of the suit till its recovery.
16. With these observations, the present appeal is disposed of.
17. All the pending miscellaneous applications, if any, are also disposed of.
July 03rd, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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