Sunder Devi Vyas vs Smt. Satyawati Singh
2022 Latest Caselaw 6372 Chatt

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                                                            FA No.158 of 2018

                                                                        AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                            FA No.158 of 2018
{Arising out of judgment and decree dated 30-11-2017 passed by the
Fourth Additional District Judge, Raipur, to the Court of First Additional
District Judge in civil suit No.55-A/2012}

   1. Sunder Devi Vyas, Widow of Late Jai Shankar Vyas, aged about 65
      Years, R/o Janki Bhawan, Bakhtawar Ji Ka Bagh, Sardarpura,
      Jodhpur (Rajasthan).

   2. Devendra Kumar Vyas, S/o Late Jai Shankar Vyas, aged about 44
      Years, R/o Janki Bhawan, Bakhtawar Ji Ka Bagh, Sardarpura,
      Jodhpur (Rajasthan).

   3. Hitendra Kumar Vyas, S/o Late Jai Shankar Vyas, aged about 39
      Years, R/o Marwad Saw Mill, Jagdalpur, District Bastar,
      Chhattisgarh.

      Nos.1 And 2 are through their Power of Attorney Holder Appellant
      No.3 Shri Hitendra Kumar Vyas, S/o Late Jaishankar Vyas, aged
      about 39 Years.

   4. Smt. Bhagwati Devi Bohra, W/o Shri Punam Chand Bohra, aged
      about 48 Years, R/o Janki Bhawan, Bakhtawar Ji Ka Bagh,
      Sardarpura, Jodhpur (Rajasthan).

   5. Smt. Vijay Laxmi Purohit, W/o Shri Gopal Purohit, R/o Janki
      Bhawan, Bakhtawar Ji Ka Bagh, Sardarpura, Jodhpur (Rajasthan)

      No.4 and 5 are through their Power of Attorney Holder Shri Hitendra
      Kumar Vyas, S/o Late Jaishankar Vyas, aged about 39 years

      (All are legal heirs of Original Plaintiff Jai Shankar Vyas)

                                                              ---- Appellants

                                  Versus

   1. Smt. Satyawati Singh, W/o Late Sudhir Singh Thakur

   2. Satyadhir Singh Thakur, S/o Late Sudhir Singh Thakur

      Both are R/o Street No.2, Fafadih, Raipur, Chhattisgarh.

   3. Branch Manager, Union Bank of India, SSI Branch, K.K.Road,
      Raipur, Chhattisgarh.

                                                            ---- Respondents
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                                                           FA No.158 of 2018



For Appellant                    Mr. B.P. Sharma, Advocate with Ms
                                 Anuja Sharma & Mr. M.L. Saket,
                                 Advocates

For Respondent Nos.1& 2          Mr. Amrito Das, Advocate with
                                 Mr. Shreyansh Mehta, Advocate

For Respondent No.3/Bank          None


                  Hon'ble Mr. Justice Goutam Bhaduri &
                Hon'ble Mr. Justice Radhakishan Agrawal

                            Judgment on Board


Per Goutam Bhaduri, J.

19-10-2022

1. Challenge in this appeal is to the judgment and decree dated

30.11.2017 passed by the Fourth Additional District Judge,

Raipur, to the Court of First Additional District Judge in civil suit

No.55-A/2012 whereby the suit for specific performance brought by

the plaintiff/appellant was dismissed.

2. The facts, in brief, are that the plaintiff No.1 Sunder Devi Vyas is the

wife of Late Jai Shankar Vyas; plaintiffs No.2&3 Devendra Kumar

Vyas & Hitendra Kumar Vyas are the sons; and plaintiffs No.4&5

Smt. Bhagwati Devi Bohra & Smt. Vijay Laxmi Purohit are the sons

& daughters of Late Jai Shankar Vyas. The suit property is situated at

Lane No.2, Rajeev Gandhi Ward, Fafadih, Raipur, bearing khasra

No.280 (Part), Plot No.1/51 (Part), Sheet No.20 admeasuring 2645

sq.ft. wherein on the ground floor construction over 1366 sq.ft. was

made and in the first floor construction over 870 sq.ft. was made. As

FA No.158 of 2018

per the plaint averments, agreement of purchase of the said house was

entered with Sudhir Kumar Singh for a sale consideration of Rs.15.00

lacs and along with it movable property attached to it was valued to

Rs.7.00 lacs was also agreed to be sold and total sale consideration of

Rs.22.00 lacs was fixed. The agreement was executed on 29.11.2004

(Ex.D/1). The initial agreement was entered by Jai Shankar Vyas

(husband of plaintiff No.1 and father of plaintiff Nos. 2 to 5) and

Rs.10.00 lacs was paid on different dates. Subsequently, the sale

agreement was notarized on 24.01.2005 (Ex.P/4).

3. According to the plaint averments before the sale deed could be

executed Sudhir Kumar Singh (seller) died. The property was

mortgaged with the Union Bank of India (defendant No.3) and it had

attached the property for recovery of the dues under the provisions of

the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI

Act'). According to the plaintiff, it was agreed that the plaintiff would

purchase the same and Rs.10.00 lacs in lieu of repayment of loan was

paid to the Bank by plaintiffs and further agreed that the remaining

sale consideration to the tune of Rs.12.00 lacs would be advanced by

way of housing loan by the Bank to the plaintiffs. The plaintiff

contended that he was ready and willing to execute his part of contract

but the possession of the subject suit property was not given. Plaintiff

further contend that after payment of Rs.10.00 lacs the coercive sale at

the instance of the Bank was stopped but the defendant failed to give

possession of the suit premises to the plaintiff. Further averments have

FA No.158 of 2018

been made that the plaintiff is ready and willing to get the sale deed

executed by payment of remaining amount of Rs.12.00 lacs as per the

sale agreement. According to the plaintiff, the defendant failed to

comply with the terms of agreement and hence notice was served upon

them to get the sale deed executed but eventually the defendant failed

to do so. Consequently, suit for specific performance was filed against

the defendants.

4. The defendants No.1&2 in their reply denied the plaint averments. It

was stated that the plaintiff has not paid the earnest money at any

point of time to the defendant Nos. 1&2 or to late Sudhir Kumar Singh

or Bank in lieu of loan and the agreement which was sought to be

executed was fabricated and based there on subsequently the suit was

filed. It was pleaded as a result the agreement is illegal and the same

is not binding on the plaintiffs. The defendants further contended that

there was no concluded contract in respect of the suit property in

between the plaintiff and the defendant. According to the defendants,

after the death of Sudhir Kumar Singh his legal heirs were not

substituted, therefore, the suit abated and the agreement cannot be

ordered to be specifically performed.

5. The defendant No.3/Bank in its reply stated that loan was granted to

the defendant on cash credit account and in order to secure loan to

secure the repayment, mortgage was created in respect of the suit

property and since the defendant failed to pay the loan as per terms of

the agreement, the Bank took a measure under the provisions of the

SARFAESI Act and attached the property. At that time, the original

FA No.158 of 2018

plaintiff Jai Shankar Vyas approached the Bank along with borrower

Late Sudhir Kumar Singh; submitted the agreement dated 29.11.2004;

and thereafter deposited an amount of Rs.10,06,100/- by Late Jai

Shankar Vyas in the Bank and rest of the amount pursuant to the

agreement was sought to be sanctioned by way of housing loan by

plaintiff. Eventually on 02.02.2005 (Ex.D/2), Jai Shankar Vyas wrote

a letter to the Bank that he is not interested to purchase the house and

took back the amount deposited in the Account No....727. The Bank

disowned the existence of agreement dated 24.01.2005 and resisted

the suit.

6. On the basis of pleadings, the learned trial Court framed different

issues and held that the plaintiff has proved that as against the sale

agreement dated 29.11.2004 the plaintiff has failed to prove Rs.10.00

lacs was received by the defendant and thereafter further agreement

dated 24.01.2005 was executed. The Court framed the issue whether

the plaintiff was ready and willing to perform his part of contract and

it held in negative. With respect to return of Rs.10.00 lacs since

29.11.2004, the Court also held it in negative. Eventually the suit was

dismissed. Thus, this appeal.

7. Mr. B.P. Sharma, learned counsel appearing for the appellant would

submit that :

 the suit was filed by Jai Shankar Vyas who entered into an

agreement;

FA No.158 of 2018

 Sudhir Kumar Singh obtained loan from the Bank, which is

supported by the Bank, and failed to repay the same and

because of such failure the suit property, which was

mortgaged with the Bank, the house was attached and

coercive sale was contemplated;

 at that time, the plaintiff intervened and helped the

defendant by making payment of Rs.10.00 lacs and the

coercive sale of house was stopped;

 after that the defendant took a somersault and refused to

execute the sale deed;

 referring to the written statement of the Bank and the

additional pleading learned counsel would submit that the

amount was deposited by Jai Shankar Vyas, the erstwhile

purchaser, as against the loan and after some time the

possession of the suit property was not given to the

plaintiff, therefore, the sale could not be executed within

time;

 referring to the interlocutory applications filed in this case

learned counsel would submit that the fact cannot be

ignored that when the defendant came out with a plea that

they have no means to pay the loan, how the payment was

made to release the property from the mortgage;

FA No.158 of 2018

 after receipt of Rs.10.00 lacs, the forceful sale was stopped

by the defendant and different plea has been taken that the

sale agreement does not bear the signature;

 referring to the law laid down by the Supreme Court in the

matter of Aloka Bose vs. Parmatma Devi and others1,

learned counsel would submit that even in case of sale

agreement which bears the signature of vendor it would be

sufficient to hold the agreement valid;

 referring to the statement of DW-1 Satyavati Devi, learned

counsel would submit that the statement of defendant is an

admission, which corroborate the written statement filed by

the Bank, who is a third party which affirmed the fact that

in between 29.11.2004 to 15.12.2004 more than Rs.10 lacs

was deposited;

 by placing reliance upon the decision rendered by the

Supreme Court in the matter of Silvey and others vs. Arun

Varghese and another2, learned counsel would submit that

when false plea was taken by the defendant that cannot be

ignored while adjudicating the case of specific

performance; and

 the finding of the learned Court below is completely faulty

and against the evidence available on record.

1 (2009) 2 SCC 582 2 (2008) 11 SCC 45

FA No.158 of 2018

8. Mr. Amrito Das, learned counsel appearing for the respondent Nos.

1&2, per contra, would submit that :

 the plaintiff sought specific performance of a contract dated

24.01.2005 (Ex.P-4);

 the earlier agreement dated 29.11.2004 was the original

agreement and the same cast a reciprocal duty on the

plaintiff to liquidate the loan which is supported by the

written statement of the Bank and it would show that on

01.12.2004 the plaintiff appeared in the Bank and filed an

application along with the agreement dated 29.11.2004;

 on that date, the agreement, which is sought to be

specifically enforced was placed before the Bank, therefore,

the written statement of the Bank is corroborated by the

statement of witness that the amount was deposited in the

own account of Jai Shankar Vyas i.e. Account No....727,

which he voluntarily withdrawn;

 referring to Ex.D/2 learned counsel would submit that Jai

Shankar himself stated that he was not interested to

purchase the suit property any more and, as such, the

readiness and willingness of the plaintiff cannot be

interfered by his own conduct;

 even the deposit of Rs.10.00 lacs was not in lieu of loan, but

was deposited in the personal account by purchaser;

FA No.158 of 2018

 referring to copy of account statement filed along with

Ex.D/2 learned counsel would submit that the transaction

will show that the amount was deposited by Jai Shankar

Vyas in his own account, which was withdrawn

subsequently, therefore, the entire suit was on the

falsity.

 If the plaint averments are tallied with the written statement

filed by the Bank it would show that supression of material

facts exist there; and

 placing reliance upon the decisions rendered by the

Supreme Court in the matters of Mohammadia

Cooperative Building Society Limited vs. Lakshmi

Srinivasa Cooperative Building Society Limited and

Others3 and Citadel Fine Pharmaceuticals vs. Ramaniyam

Real Estates Private Limited and Another 4, learned

counsel would submit that the specific relief in the like

nature cannot be decreed in favour of the plaintiffs. He

would, therefore, submit that the finding of the Court below

is well merited, which do not call for any interference.

9. We have heard learned counsel appearing for the parties, perused the

pleadings and the evidence available on record.

10. Perusal of the plaint would show that suit was filed by the legal heirs

of Jai Shankar Vyas who is said to have entered into an agreement as a

3 (2008) 7 SCC 310 4 (2011) 9 SCC 147

FA No.158 of 2018

purchaser and the legal heirs sought for execution of agreement dated

24.1.2005. Learned trial Court has raised the doubt on existence of

agreement dated 24.1.2005 (Ex.P/4). In the written statement,

existence of the said agreement is challenged. Perusal of the

agreement (Ex.P/4) would show in that agreement, two photographs of

elderly persons were affixed which are marked as 'F to F' and 'E to

E'. Photograph at 'G to G' appears to be of some young person,

which is affixed over the seal/stamp covering part of stamp seal. The

defendant has stated that initially the agreement was executed on 29-

11-2004, which is marked as Ex.D/1, wherein the names of (1) Sudhir

Kumar Singh, (2) Smt. Satyawati Singh, and (3) Satyadhir Singh

Thakur appear as a seller. Comparing the said agreement Ex.D/1 with

Ex.P/4 would show that it was the same agreement on which

subsequent photograph from 'G to G' was affixed. Perusal of

agreement (Ex.P/4), on which the plaintiff relies, shows that it begins

with the word that the agreement is executed on 29-11-2004 whereas

at the last para it shows that the agreement is said to be executed on

24-1-2005. Again when such scribe is compared with Ex.P/4 & Ex.

D/1, prima faice, it is manifest that the same is one and same,

however, in Ex.P/4 further signature of Satyadhir appears. Therefore,

ambiguity of subsequent agreement Ex.P/4 is writ large inasmuch as

the appearance of photograph covering seal and at last page by putting

up a seal of date over written scribe makes it doubtful.

11. Further perusal of both agreements (Ex.P/4 & Ex.D/1) purport that the

suit property was agreed to be purchased by the plaintiff for Rs.15.00

FA No.158 of 2018

lacs and in respect of movable attached with the property Rs.7.00 lacs

was valued. So total valuation of sale consideration was Rs.22.00 lacs.

Further the contents of document purport that Rs.10.00 lacs was said

to have been received by party No.2, which has been given to party

No.1 in his bank loan account. It is an admitted fact between the

parties that the property was subject of mortgage in lieu of loan

availed by the defendant and agreement purports that Rs.10.00 lacs is

being deposited in the loan account and Rs.12.00 lacs balance amount

would be further paid. The agreement further purport that on payment

of loan amount, the property would be released from the mortgage and

on payment of rest of the amount of Rs.12.00 lacs, the entire sale

consideration would be deemed to have been paid. Even taking the

document Ex.P/4 and the terms contained therein, it says that the

moment purchaser (Party No.2) deposits the loan amount in the Bank

and NOC is received, the sale deed would be executed. Consequently

it causes a reciprocal condition on the plaintiff to seek specific

performance on fulfilling certain conditions.

12. In the written statement filed by the Bank, it has been stated that on

1-12-2004 the plaintiff and defendant came to bank and filed an

application through Hitendra Vyas along with agreement dated

29-11-2004 the Bank and thereafter it was assured by the loanee

Sudhir Kumar and the original plaintiff Jai Kumar Vyas & Hitendra

Vyas that they would pay the entire loan amount of the Bank.

Thereafter Jai Shankar Vyas has deposited an amount of

Rs.10,06,100/- in between 29-11-2004 to 15-12-2004 with bank. The

FA No.158 of 2018

averments of the Bank when are compared with Ex.P/4 for which the

plaintiff has sought for specific performance, it contains a statement

that an amount of Rs.10.00 lacs received by the seller and Ex. P-4 is

dated 24.01.2005.

13. According to the statement of PW-1 Hitendra Kumar Vyas in the

cross-examination at para 30 he stated that no amount was paid in lieu

of the loan which was availed by Satyadevi from the Bank. He further

stated that his father has not paid the loan in accordance with the

agreement (Ex.P/4). At para 35, this witness admits the fact apart

from Sudhir Singh and Satyadhir Singh he was in know of the fact that

another daughter is there but neither she was made a party to the

agreement nor was party to the suit. Further cross-examination by the

Bank, he admitted the fact that on 1-12-2004, he and his father have

applied for loan to the Bank. He further admitted that to avail such

loan they had given the document Ex.D/1 to the Bank. Ex.D/1 is an

agreement dated 29-11-2004. He further admitted that thereafter his

father submitted a letter (Ex.D/2) to the Bank. Perusal of Ex.D/2 dated

2-2-2005 shows it was stated by Jai Shankar Vyas that he is not

interested to purchase the suit property and the amount was deposited

in his own account No.....727 further requested for cancellation of the

loan. The plaintiff tried to canvas that the loan was cancelled by them

for the reason to arrest the accumulation of interest. However, when

the loan itself was not availed until and unless the amount is

transferred to loanee or is withdrawn how such accumulation of

interest would commence, we are unable to understand. Therefore, the

FA No.158 of 2018

said contention of the appellant to explain the contents of Ex.D/2

appears to be an afterthought. It only goes to show that the plaintiffs

themselves were not interested to get the sale deed executed in their

favour and original purchaser had rescinded the contract.

14. Now coming back to the written statement of Bank, the Bank stated

that amount was deposited by plaintiffs in the account in between

29-11-2004 to 15-12-2004. Further pleading has been made with

respect to Ex.D/2 i.e. letter of 2-2-2005 that plaintiff stated before

Bank by such letter that he do not want to purchase the suit property;

and sanctioned loan be cancelled; and the amount deposited in account

No......727, which was of the contractual amount, was withdrawn by

Jai Shankar till 23-8-2005 with a remaining amount of Rs.78,759/-.

Along with document Ex.D/2, a copy of account statement is on

record, which is of account No....727. This account sheet is not

disputed by the parties. Perusal of it would show that in between

29-11-2004 to 15-12-2004 the amount around Rs.10.00 lacs was

deposited in the account of Jai Shankar. The said account was

personal account of Jai Shankar and further would show that after

7-2-2005 the amount was withdrawn and lastly Rs.78,759/- remained

in the account. Perusal of the said document along with para 26 of

cross-examination of PW-1 Hitendra Kumar Vyas it is evident that he

admitted the existence of Ex.D/2 and stated that it was informed to the

Bank. Further the statement would show that the witness has

deposed that he has no knowledge whether his father Jai Shankar has

deposited the amount to liquidate the loan account.

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15. All the aforesaid facts have not been pleaded in the suit by the

plaintiff. It was only at the time of cross-examination the facts came

to fore.

16. It is the trite law that supression of material facts would disentitle a

party from getting relief of specific performance. {See :

Mohammadia Cooperative Building Society Limited (supra) and

Citadel Fine Pharmaceuticals (supra)}.

17. In the case in hand, the plaintiffs' suit for specific performance of

Ex.P/4 apparently appears to be doubtful, as the inconsistency and

overwriting appears by way of stamp/seal as against document

Ex.D/1. Even if the agreement alleged to be correct, prima facie, it

shows that the plaintiff was required to deposit the amount to liquidate

the loan in the loan account, but the plaintiff deposited the amount in

his own account No.....727. The plaintiff who claims to have

deposited the amount in the loan account could have proved by the

counter foil or deposit slip by calling a voucher from the Bank. It is

obvious that if such hefty amount was deposited in certain account at

different period of time that too on the basis of contract, the plaintiff

was expected to produce the document which could have been the best

evidence in the case to show performance of contract on part of

plaintiff. If the document has been held back for the reason best

known to the plaintiff, in absence thereof the Court is required to draw

adverse inference.

FA No.158 of 2018

18. Accordingly, we hold that the plaintiff has failed to prove the fact that

he has deposited the amount in the Bank to discharge the loan to the

extent of Rs.10.00 lacs and consequently was entitled to get a decree

for specific performance. Furthermore, the plaintiff by his own

conduct has rescinded the contract by submitting letter Ex.D/2. Under

these circumstances, denial of decree of specific performance as held

by the learned trial Court appears to be just and proper and do not

warrant any interference by this Court.

19. As an upshot, the present appeal, sans substratum, is liable to be and

is hereby dismissed, leaving the parties to bear their own cost(s).

20. A decree be drawn accordingly.

                 Sd/-                                             Sd/-

         (Goutam Bhaduri)                            (Radhakishan Agrawal)
              Judge                                           Judge

Gowri

                                                   FA No.158 of 2018

                         HEAD NOTE

In a suit for specific performance supression of material facts would disentitle a party from getting relief of specific performance.

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