M.S. Ramachandra Rao, J.
As the parties to these proceedings are one and the same and the subject matter of both these proceedings is connected, they are being disposed of by this common judgment.
1. A.S. No. 2443 of 1999 is filed challenging the judgment and decree dt. 25.08.1999 in O.S. No. 29 of 1993 on the file of the Principal Senior Civil Judge, Kurnool. CRP. No. 1578 of 2009 is filed u/s 115 CPC challenging the order dt. 17.03.2009 in EP. No. 258 of 2005 in O.S. No. 29 of 1993 on the file of the Addl. Senior Civil Judge, Kurnool.
The brief history leading to the filing of these proceedings is as under:
2. The appellants are defendant Nos. 1 to 10 in the above suit. Pending appeal, 1st appellant died and appellant Nos. 11 to 18 have been brought on record as his legal representatives. The sole respondent in the appeal also died pending appeal, and respondent Nos. 2 to 5 have been brought on record as his legal representatives.
3. Appellant Nos. 1 to 4 are brothers and are the sons of one Mirzan Baig. They are defendants 1 to 4 in the above suit. They own an extent of Acs.7.50 cents in Sy. No. 1314 of Nannuru Village, Orvakal Sub-Registry, Kurnool District apart from other lands. On 01.09.1992, they borrowed a sum of Rs. 1,30,000/- from the respondent/plaintiff. They executed Ex. A.1/agreement in favour of plaintiff promising to repay the said amount on 25.02.1993. The agreement recited that no interest is payable if this amount of Rs. 1,30,000/- was paid by 25.02.1993, but if it is not paid, the defendant Nos. 1 to 4 agreed that they would register the above land in plaintiff''s favour, on the plaintiff bearing the registration charges. The agreement also stated that if the amount is not paid by 25.02.1993 and if there is any delay in registering the land, the plaintiff can obtain a registered sale deed through legal procedures. This agreement bore the heading "agreement relating to loan of Rs. 1,30,000/-" and it was signed by Defendant Nos. 1 to 4. The agreement was scribed by D.W. 4 and attested by one B. Yellareddy. The said agreement did not contain the signature of the plaintiff.
4. Defendant Nos. 1 to 4 contend that on 22.02.1993 they paid a sum of Rs. 1,10,000/- to plaintiff through 4th defendant and that this was acknowledged by plaintiff by giving a receipt Ex. B.1 dt. 22.02.1993. This receipt recited that plaintiff acknowledges receipt of the amount of Rs. 1,10,000/- from 2nd defendant, that only Rs. 20,000/- is due from them, and that as and when they paid the balance, he would return the loan agreement documents. This receipt Ex. B.1 is scribed by D.W. 2 and it bears the signature of plaintiff and also bears a rubber stamp affixed stating "for Balaji Finance Corporation, Managing Director".
5. The plaintiff disputes that he executed this receipt Ex. B.1 and contends that D.W. 2, (whose wife Anasuyamma is a partner in the said Balaji Finance Corporation - a Firm in which the plaintiff and others are partners), concocted the receipt on certain blank papers on which the plaintiff''s signature was obtained; that such papers were obtained by DW2 from plaintiff in order to get the share of one Mahaboob Basha, who was a partner in the above firm, transferred in the name of Anasuyamma, the wife of DW2, stating that they were required to be given to the firm''s auditor PW2. The plaintiff denied the receipt of this money or the execution of the receipt although he admitted his signature on Ex. B.1.
6. Apprehending that plaintiff would forcibly take possession of the above land from them without following due process of law, on 18.2.1993, Defendant Nos. 1 to 4 in O.S. 29/1993 filed O.S. No. 65 of 1993 before the Principal District Munsif, Kurnool seeking a perpetual injunction restraining the plaintiff in O.S. No. 29 of 1993 from in any way interfering with their peaceful possession and enjoyment of the plaint schedule property. They also obtained an ad interim injunction in their favour in the said suit on 22.2.1993.
7. The plaintiff, thereafter, filed O.S. No. 29 of 1993 for specific performance of Ex. A.1 contending that it is an agreement of sale executed in his favour by defendant Nos. 1 to 4 promising to pay Rs. 1,30,000 by 25.02.1993 and in default, agreeing to register the above land through a sale deed in his favour; that they did not make any payment by 25.02.1993, or execute sale deed as promised in the agreement/Ex. A.1, and therefore, he is entitled to relief of specific performance of Ex. A1.
8. He also filed a written statement in O.S. No. 65 of 1993 stating that he never intended to take the above property forcibly, and so there is no cause of action to file the said suit and it may be dismissed. He also mentioned that he had already filed O.S. No. 29 of 1993 seeking specific performance of the agreement Ex. A1/dt. 01.09.1992.
9. The defendant Nos. 1 to 4 in O.S. No. 29 of 1993 filed a written statement in the said suit stating that the transaction was only a loan transaction, and was not a transaction for sale of land as is sought to be made out by plaintiff; that they had paid a sum of Rs. 1,10,000/- to plaintiff on 22.02.1993 and he had also given a valid receipt Ex. B.1 acknowledging receipt of this amount; that only a balance of Rs. 20,000/- was to be paid; and that Ex. B.1 clearly recited that as and when the balance amount is paid, the agreement will be returned to defendant Nos. 1 to 4. They contended that the suit for specific performance viz. O.S. No. 29 of 1993 has been filed for wrongful gain with an intention to knock away their property for a song, suppressing the receipt of payment of Rs. 1,10,000/-. They contended that since the transaction is only a money transaction, and a major part of the loan has been discharged, there is no question of executing a registered sale deed in favour of plaintiff by way of specific performance of the agreement Ex. A1.
10. A rejoinder was filed to this written statement by plaintiff stating that he did not receive the amount of Rs. 1,10,000/- and did not grant any time to pay the balance of Rs. 20,000/-; that Ex. B.1 receipt is a fabricated document and was forged with the help of enemies of the plaintiff; that in O.S. No. 65 of 1993, defendant Nos. 1 to 4 in O.S. No. 29 of 1993 had filed a plaint admitting the execution of agreement of sale; that on 22.02.1993, one Bommana Ramana Reddy (for short, ''Ramana Reddy''), a relation of the plaintiff was murdered by defendant Nos. 1, 3 and their men; that in the said case, the plaintiff was a prosecution witness and the motive and cause for the said murder is the demand for amount due under Ex. A.1 on the previous day by plaintiff and the said Ramana Reddy; that when the relationship is so strained, it is unthinkable that defendant Nos. 1 to 4 had paid money and obtained a receipt from plaintiff without obtaining any endorsement on Ex. A.1 on 22.02.1993, the date of the murder of Ramana Reddy.
11. O.S. No. 65 of 1993 filed by the defendant Nos. 1 to 4 in O.S. No. 29 of 1993 before the District Munsif Court, Kurnool, was subsequently transferred to the Court of Principal Senior Civil Judge, Kurnool and re-numbered as O.S. No. 45 of 1995 and was clubbed with O.S. No. 29 of 1993 filed by the plaintiff.
12. In O.S. No. 29 of 1993, the Court framed the following issues:
(1) Whether the time is essence of the contract?
(2) Whether transaction dt. 25-2-93 is true, valid and binding on the defendants?
(3) Whether the property is worth of Rs. 7,00,000/-?
(4) Whether D4 paid Rs. 1,10,000/- and obtained receipt on 22-2-93 from the plaintiff?
(5) Whether the plaintiff is entitled for execution of sale deed by the defendants and other reliefs?
(7) Whether there is cause of action is correct?
(8) To what relief of parties?
An Additional issue was framed on 26-10-1994.
(1) Whether the allegations in the plaint in O.S. No. 6593 amounts to admission of the defendants to the suit who are binding on them?
Again Additional issues are settled on 17-10-1997.
(1) Whether the defendants are intended to sell the suit land?
(2) Whether the defendants are discharged the loan amount?
13. The plaintiffs examined P.Ws. 1 to 3 and marked Ex. A.1. The defendants examined D.Ws. 1 to 4 and marked Exs. B.1 to B.4. Ex. X.1, FIR in Crime No. 13 of 1993 of Orvakal P.S. along with charge-sheet was also marked subject to objection.
14. By a common judgment dt. 25.08.1999, O.S. No. 29 of 1993 was decreed and O.S. No. 45 of 1995 was dismissed.
15. The Court below held that Ex. A.1 is an agreement of sale; that P.W. 1 stated that the defendant Nos. 1 to 4 borrowed Rs. 1,30,000/- from the plaintiff on 01.09.1992 and executed it agreeing to sell the property if they did not pay the amount in six months; and that they did not pay the amount, but instead filed O.S. No. 45 of 1995 for injunction against him; the plaintiff cannot take possession of the property on his own accord; that there is no clause for payment of interest in Ex. A.1; therefore, the amount of Rs. 1,30,000/- is adequate sale consideration and represents the price of the land; that it was paid and nothing more was to be done by plaintiff; thus, the real intention of defendant Nos. 1 to 4 is to make an agreement of sale and there is no word in Ex. A.1 indicating that there is a relationship of creditor and debtor; that plaintiff did not agree expressly or impliedly that there is a relationship of creditor and debtor; merely because Ex. A.1 contemplated that the defendant Nos. 1 to 4 should return Rs. 1,30,000/- on or before 25.02.1993 without interest, it does not mean that the transaction in question is a money transaction. Even in O.S. No. 45 of 1995, defendants admitted that Ex. A.1 is a sale agreement intended to convey the property to the plaintiff and so they were estopped from contending that Ex. A.1 relates only to a money transaction.
16. It also held that defendant Nos. 1 to 4 did not pay Rs. 1,10,000/- to plaintiff and they did not discharge the loan amount. It held that if the defendants had any intention to pay the amount, there was no necessity to file O.S. No. 65 of 1993 against the plaintiff on 18.02.1993; that defendants did not examine the persons who lent them money for making the payment of Rs. 1,10,000/- on 22.02.1993; in Ex. B.1, the lines in the earlier part appear to be closer than those in the later part; and as per Ex. B1, plaintiff is said to have received amount only on behalf of M/s. Balaji Finance Corporation of which he is the Managing Partner; the defendants did not explain why plaintiff would receive any amount on behalf of the said Corporation; no money had been lent by plaintiff to the defendants on behalf of the said Corporation; if really the amount of Rs. 1,10,000/- covered by Ex. B.1 belonged to the said Corporation, it would have been reflected in its accounts; the defendants did not explain why they did not take any endorsement from plaintiff on the reverse of Ex. A.1, having paid allegedly a large amount of Rs. 1,10,000/-; Ex. B.1 receipt is also not a stamped receipt; when the associate of the plaintiff Ramana Reddy was murdered on 22.02.1993 and defendant Nos. 1 and 3 were accused in the said murder, it is unimaginable that the defendants would pay the money and obtain Ex. B.1 from the plaintiff. It held that merely because plaintiff admitted his signature on Ex. B.1, it did not mean that he admitted the contents and execution of Ex. B.1; that D.W. 2 was a Conductor in APSRTC and he was on duty on 22.02.1993 and he could not have scribed Ex. B.1; that wife of D.W. 2 was a partner in the Balaji Finance Corporation, D.W. 2 was looking after its affairs and was in the habit of taking signatures of plaintiff in connection with the affairs of the said Corporation which was spoken to by P.W. 2, the auditor of the Firm; and D.W. 2 in collusion with the defendants and the attestors of Ex. B.1 could have fabricated it to defeat the plaintiff''s rights. It held that the son of D.W. 2 had been adopted by plaintiff and subsequently plaintiff had cancelled the said adoption and this would have been the cause for D.W. 2 to help the defendants; the evidence of D.W. 3, the attestor of Ex. B.1 also cannot be believed because at the time of execution of Ex. B.1, Ramana Reddy was murdered, D.W. 3 came to Kurnool on motorcycle at 10:30 am only on 22.02.1993. Therefore, it concluded that Ex. B.1 is either a fabricated or a forged receipt.
17. The court below also held that no possession was delivered to plaintiff under Ex. A.1, and possession was to be delivered only if the amount borrowed by the defendants was not paid by 25.02.1993 and after obtaining of sale deed by plaintiff. So, it concluded that there was no question of dispossession of defendants from the plaint schedule property by plaintiff and therefore, O.S. No. 45 of 1995 was filed with oblique motive.
18. Aggrieved by the judgment in O.S. No. 29 of 1993, the defendants filed A.S. No. 2443 of 1999. They did not file any appeal against the judgment in O.S. No. 45 of 1995.
19. Pending 1st appeal, there was an interim order dt. 13.10.1999 in CMP. No. 24127 of 1999 staying execution of the judgement in O.S. 29/1993 on condition of payment of certain amount. As the said condition was not complied with by defendant Nos. 1 to 4, the stay execution of the judgment in O.S. No. 29 of 1993 stood vacated. Thereafter, EP. No. 258 of 2005 was filed by plaintiff seeking execution of the decree in O.S. No. 29 of 1993 under Order XXI Rule 32 and 34(2) CPC, requesting the court to direct the defendants/J.Drs. to execute a registered sale deed in his favour and if they do not do so, praying the court to execute it in his favour. By the time the EP was filed, the 1st defendant had died and his legal representatives (Appellant Nos. 11 to 18 herein) were impleaded in the A.S. No. 2443 of 1999 vide order dt. 07.02.2000 in CMP. No. 5764 of 2000. However, the executing court did not issue any notice under Order XXI Rule 22 CPC to the legal representatives of the deceased 1st defendant on the ground that they were already impleaded in A.S. No. 2443 of 1999. By order dt. 17.03.2009, the executing court, while dismissing the EP against respondent Nos. 17 and 18, allowed it as against the other defendants/J.Drs. This is impugned in the Civil Revision Petition No. 1578 of 2009.
20. So the decision in CRP No. 1578/2009 is dependant on the decision in A.S. No. 2443/1999 and this Court needs to consider CRP. No. 1578 of 2009 only if the judgment of the trial court in O.S. No. 29 of 1993 is confirmed in the appeal. Therefore, the CRP. No. 1578 of 2009 would be considered after considering A.S. No. 2443 of 1999.
21. Heard Sri S.V. Sundararajan, counsel for appellants/defendants and Sri K.V. Satyanarayana, counsel for plaintiff/L.Rs. of plaintiffs/respondents in the appeal.
22. The counsel for appellants/defendants contended that the transaction between the parties is only a loan transaction and although defendant Nos. 1 to 4 borrowed Rs. 1,30,000/- and executed Ex. A.1 on 01.09.1992, they had repaid Rs. 1,10,000/- on 22.02.1993 and obtained Ex. B.1/receipt from plaintiff; so Ex. A.1 cannot be treated as an agreement to sell, but can only be considered as a loan agreement; the property which is subject matter of Ex. A1 is worth at least Rs. 70,000/- per acre and the entire Acs.7.50 cents would therefore be worth more than Rs. 5,00,000/- at the time of the execution of Ex. A.1; even the plaintiff had admitted in his evidence that defendant Nos. 1 and 4 had purchased the land at Rs. 30,000/- per acre; so the extent of Acs.7.50 cents would therefore cost at least Rs. 2,25,000/- even according to plaintiff; and therefore it would be unconscionable to permit the plaintiff to get the above property in return for an alleged default in payment of loan of Rs. 1,30,000/-. He also further contended that the trial court selectively considered the evidence of the parties and omitted to consider certain statements made by P.W. 1 which were in favour of defendant Nos. 1 to 4, in particular, his statement that he is inclined to receive the debt and that the conditions in Ex. A.1 were imposed only to see that the amount was repaid by 25.02.1993. He contended that the trial court erred in disbelieving Ex. B.1 merely because it contains the stamp of Balaji Finance Corporation and held that Balaji Finance Corporation has no connection with Ex. A.1; and that plaintiff never pleaded in his rejoinder that Ex. B.1 relates to Balaji Finance Corporation at all. He also contended that the plea of plaintiff that Ex. B.1 might have been fabricated on white papers taken in connection with the transfer of shares of Mahaboob Basha was also not raised in the pleadings by the plaintiff; the attestor to Ex. A.1 has not been examined by plaintiff; there is no admission in the plaint in O.S. No. 65 of 1993; and the non-filing of appeal against the judgment in O.S. No. 65 of 1993 (O.S. No. 45 of 1995) does not in any manner come in the way of appellants prosecuting this appeal. He also contended that the findings of the trial court that Ex. B.1 was concocted on plain white papers containing the signature of plaintiff is incorrect, as also its finding that an admission by plaintiff of his signature on Ex. B.1 did not amount to an admission of its contents. He relied upon the following decisions in
23. The counsel for the respondents on the other hand contended that the judgment of the court below in O.S. No. 29 of 1993 is correct and is supported by cogent reasoning; that as O.S. No. 29 of 1993 and O.S. No. 45 of 1995 were tried together and a common judgment was delivered decreeing O.S. No. 29 of 1993 and dismissing O.S. No. 45 of 1995; the appellants/defendants or their LRs should have also challenged the judgment in O.S. No. 45 of 1995; since it was not done, the appeal A.S. No. 2443 of 1999 against O.S. No. 29 of 1993 has to be dismissed. He further contended that Ex. B.1 dt. 22.02.1993 was not filed in O.S. No. 45 of 1995 (O.S. No. 65 of 1993 previously) and this creates a suspicion about it. He also contended that D.W. 3 was not present when Ex. B.1 was executed and therefore he could not have attested it. The evidence of D.W. 1 that he raised Rs. 1,10,000/- from different sources is not believable and if really payment of Rs. 1,10,000/- was made on 22.02.1993, the defendants should have at least got the payment endorsed on photocopy of Ex. A.1 (counterpart of Ex. A.1) available with them, but this was not done. He also contended that the evidence on record shows that P.W. 1 had done a lot for D.W. 2 but the latter cheated P.W. 1; and that on the day of execution of Ex. B.1, D.W. 2 was on duty as an APSRTC driver and could not have scribed it. He also contended that if Ex. B.1 is not accepted, then only the question of considering the nature of Ex. A.1 arises for consideration; Ex. A.1 is in the nature of a contingent contract as explained in Section 32 of the Indian Contract Act, 1872; there is no pleading by defendants that the term in Ex. A.1 requiring them to execute a sale deed for the land if they did not pay the amount of Rs. 1,30,000/- by 25.02.1993, is in the nature of a penalty and therefore they cannot be allowed to raise the said plea. He also contended that the court has to take note of the fact that there was no stipulation for interest in Ex. A.1 for the loan of Rs. 1,30,000/- and six months'' time was granted for payment of the debt to the defendants. As the defendants had raised a false plea regarding Ex. B.1, this would have an effect on the exercise of discretion u/s 20 of the Specific Relief Act, 1963. He also contended that the amount of Rs. 1,30,000/- would be adequate consideration for the sale of the land and although in the written statement filed by defendant No. 4, it was pleaded that the property is worth Rs. 7,00,000/-, no evidence such as basic value register was filed by defendants and they also did not file the exchange deed under which they got the lands in 1983 from their transferor. He relied upon
24. In the light of the above contentions, the following points arise for consideration in the appeal:
(a) Whether the appeal A.S. No. 2443 of 1999 is liable to be dismissed on the ground that no appeal has been filed by appellants against the judgment in O.S. No. 45 of 1995?
(b) What is the true nature of Ex. A.1 agreement? Is it an agreement of sale or an agreement to repay a loan?
(c) Whether the defendant Nos. 1 to 4 had paid Rs. 1,10,000/- to plaintiff on 22.02.1993 and whether Ex. B.1 receipt is true or not?
(d) Whether the judgment of the court below in O.S. No. 29 of 1993 granting relief of specific performance in favour of plaintiff is sustainable?
Point (a):
25. This point is taken up first as a decision in favour of the respondents on it would foreclose the necessity to decide the other points.
26. From the facts narrated above it is clear that O.S. No. 45 of 1995 (formerly O.S. No. 65 of 1993) filed by defendant Nos. 1 to 4 against the plaintiff for a perpetual injunction, which had been tried along with O.S. No. 29 of 1993 filed by the plaintiff against them, was dismissed on 25.08.1999 by the trial court while decreeing O.S. No. 29 of 1993. A.S. No. 2443 of 1999 was filed against the judgment in O.S. No. 29 of 1993 but there is no appeal filed against the judgment in O.S. No. 45 of 1995. The counsel for the respondents contends that in view of the judgments in Premier Tyres Limited (supra) and in Peddamatam Siddamma (supra), the appeal A.S. No. 2443 of 1999 should be dismissed.
27. In Premier Tyres Limited (supra), the Supreme Court held:
Where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. Where no appeal is filed, as in this case from the decree in connected suit it has the same effect of non filing of appeal against a judgment or decree. Thus the finality of finding recorded in the connected suit, due to non filing appeal precludes the Court from proceeding with appeal in other suit.
28. In Peddamatam Siddamma (supra), this Court held that if a common judgment is delivered and common findings are recorded and only one of the decrees is challenged without there being a challenge to the findings in the other suit by non-filing of appeal, the principle of res judicata would come into operation.
29. The counsel for the appellants/defendants in O.S. 29/1993 contended that on 18.02.1993, when it was filed, there was a threat of trespass by the plaintiff in O.S. No. 29 of 1993 (who was defendant in O.S. No. 65 of 1993); so the suit was filed by them pleading that plaintiff cannot get possession as per Ex. A.1, unless he obtained a sale deed after filing a suit for specific performance against them, and therefore their possession be protected by grant of a perpetual injunction.
30. The plaintiff in O.S. No. 29 of 1993, who was defendant in O.S. No. 65 of 1993, filed a written statement in O.S. No. 65/1993 stating that he never intended to take the plaint schedule property forcibly and there is no cause of action to file it apart from pleading that he had filed O.S. No. 29 of 1993 for specific performance of Ex. A.1 and for recovery of possession.
31. The reason for dismissal of O.S. No. 45 of 1995 by court below is that no possession was delivered to plaintiff in O.S. No. 29 of 1993 by the defendants therein under Ex. A.1, that the plaintiff in O.S. No. 29 of 1993 would get possession only after a default in payment of Rs. 1,30,000/- was committed by defendants by not paying it by 25.02.1993 and after he obtained a sale deed from the defendants, and therefore, the question of the plaintiff in O.S. No. 29 of 1993 dispossessing the defendants therein, does not arise. This indicates that in the opinion of the court below, the defendants in O.S. No. 29 of 1993 (who had filed O.S. No. 65/1993 for perpetual injunction restraining the plaintiff in O.S. No. 29 of 1993 from dispossessing them), practically had no cause of action to file O.S. 65/1993. For this reason and also in view of the categorical statement/admission of plaintiff in O.S. 29/1993 in his written statement in O.S. No. 65/1993 that he had no intention to dispossess the defendants forcibly, in my opinion, it was unnecessary for the defendants 1-4 to have filed appeal against the judgment in O.S. No. 65 of 1993 at all. When there is no threat of dispossession by plaintiff in O.S. 29/1993, even if O.S. 65/1993 is dismissed, no useful purpose would be served by filing an appeal. Therefore, the decisions in Premier Tyres Limited (supra) and in Peddamatam Siddamma (supra) are not applicable. In my opinion, it cannot be said that there is a decision adverse to the defendants in O.S. No. 29 of 1993 which would necessitate them to file an appeal against the judgment in O.S. No. 65 of 1993 (O.S. No. 45 of 1995).
32. No doubt it was also observed by the court below that O.S. No. 45 of 1995 was filed for oblique motive and that the relief of injunction is an equitable relief. But this reasoning cannot be accepted for the reason that as on the date when O.S. No. 65 of 1993 was filed i.e. on 18.02.1993, there was nothing wrong for plaintiffs in O.S. No. 65/1993 (the defendants in O.S. No. 29 of 1993), in entertaining an apprehension of possible dispossession by the defendant therein and filing the suit for injunction to protect their possession. The counsel for the respondents does not dispute this. The subsequent events on which the court below found against the defendants in O.S. No. 29 of 1993 cannot be the basis to hold that the suit O.S. No. 65 of 1993 was filed with oblique motive. In my opinion, on 18.02.1993, it cannot be said that the defendants in O.S. No. 29 of 1993 had an oblique motive and they filed O.S. No. 65 of 1993 with such a motive.
33. In this view of the matter, I disagree with the contention of the respondents that Appeal A.S. No. 2443 of 1999 is liable to be dismissed because the appellants did not challenge the judgment in O.S. No. 65 of 1993 (O.S. No. 45 of 1995). Point (a) is answered accordingly in favour of the appellants.
Point (b):
34. This issue assumes importance in the light of the contentions of the parties mentioned above.
35. Before dealing with the contentions, certain decisions dealing with construction of deeds and documents need to be noted.
36. In
12. A document, as is well known, must be read in its entirety. When character of a document is in question, although the heading thereof would not be conclusive, it plays a significant role. Intention of the parties must be gathered from the document itself but therefor circumstances attending thereto would also be relevant; particularly when the relationship between the parties is in question. For the said purpose, it is essential that all parts of the deed should be read in their entirety. (See P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi, SCC p. 236, para 13.) In SBI v. Mula Sahakari Sakhar Karkhana Ltd. it was held:
22. A document, as is well known, must primarily be construed on the basis of the terms and conditions contained therein. It is also trite that while construing a document the court shall not supply any words which the author thereof did not use.
(emphasis supplied)
37. In the present case, Ex. A.1 bears the heading "agreement regarding loan of Rs. 1,30,000/-" and does not bear the heading "agreement of sale". It refers to the loan of Rs. 1,30,000/- given by plaintiff to defendant Nos. 1 to 4 on 01.09.1992 and the promise of the defendant Nos. 1 to 4 to repay it by 25.02.1993. It further recites that if the amount is not paid on or before 25.02.1993, then the defendant Nos. 1 to 4 would register the property in favour of the plaintiff and if they do not do so, the plaintiff is entitled to take recourse to legal measures to obtain a registered sale deed. There is no recital that the amount of Rs. 1,30,000/- was paid by plaintiff towards "consideration" for purchase of the land or that it represents "sale consideration".
38. In this regard, the plaintiff as P.W. 1 admitted that defendant Nos. 1 to 4 "borrowed" Rs. 1,30,000/- from him and that one month prior to 01.09.1992, they had requested him "for the loan". He also admitted in his cross-examination that "the conditions in Ex. A.1 were imposed to see that the amount was repaid by 25.02.1993" and stated "I am inclined to receive my debt or the land whichever the court orders." Admittedly, he is the Managing partner of the firm "Balaji Finance Corporation" whose obvious business is finance, i.e., grant of loans. He also admitted that he lends money to ryots and ten to twelve cases were pending in various courts in Kurnool against his debtors on the basis of promissory notes scribed by his clerk Nageswaraiah.
39. Therefore, all these above facts indicate that Ex. A.1 was not intended for sale of the land by defendant Nos. 1 to 4 to plaintiff and its main purpose, as admitted by the plaintiff, was to ensure repayment of the amount of Rs. 1,30,000/- by them by 25.02.1993. In this view of the matter, I am of the opinion that the recitals in Ex. A1, its heading and the attendant circumstances all clearly show that it is not an agreement for sale, but that, in substance, it is a document recording the grant of loan by plaintiff to defendant Nos. 1 to 4, and the condition that the property would be transferred to plaintiff if the loan is not paid by 25.02.1993, was included only to ensure its repayment by that date.
40. The trial court did not consider the admissions of the plaintiff referred to above and perversely concluded that Ex. A.1 is an agreement of sale.
41. In O.S. No. 65 of 1993, plaintiffs therein (defendant Nos. 1-4 in O.S. No. 29/1993) contended that they had borrowed Rs. 1,30,000/- from the defendant therein (plaintiff in O.S. No. 29/1993); that in default of repayment by 25.02.1993, the defendant therein should file a suit for specific performance and then only enter into possession of the land, but he attempted to trespass into the land forcing them to file the suit for perpetual injunction. These averments, in my opinion, do not constitute any admission by plaintiffs in O.S. No. 65 of 1993 that Ex. A.1 is a sale agreement. In my opinion, the trial court misconstrued the pleadings in the plaint and erred in holding that there was an admission in the plaint in O.S. No. 65 of 1993 by plaintiffs/defendant Nos. 1 to 4 in O.S. No. 29 of 1993 that Ex. A.1 is a sale agreement. Therefore, point (b) is answered in favour of the appellants and against the respondents.
Point (c):
42. While the plaintiff admitted that he did sign Ex. B.1 receipt dt. 22.02.1993, he contended that no amount of money was paid by the defendant Nos. 1 to 4 to him on that day; that on that day, one Ramana Reddy, a relative of the plaintiff was murdered allegedly by defendant No. 1 and defendant No. 3; both were accused in the said murder case SC. No. 418 of 1993, but the said case ended in an acquittal; and therefore, it is unnatural that defendant Nos. 1 to 4 had approached him on that day and made the payment of Rs. 1,10,000/- towards the debt under Ex. A.1 to him. He also contended that the son of D.W. 2 who scribed Ex. B.1 by name Jayaprakash had been adopted by him on 14.10.1988 but the same was cancelled and out of enmity on that count, D.W. 2 fabricated Ex. B.1. His further contention is that D.W. 2 purchased the share of one Mahaboob Basha, one of the partners in M/s. Balaji Finance Corporation, that as D.W. 2 was working as a Conductor in APSRTC, D.W. 2 wanted the said share to be transferred in the name of his wife and so he came to the plaintiff and obtained signatures on two white papers in order to give them to the auditor of the plaintiff and misused them to create Ex. B.1.
43. It is no doubt true that admission of signature on a document is not an admission of the due execution of the said document. (See
44. Therefore, it has to be seen whether the defendants have succeeded in proving about the execution of Ex. B.1 on 22.02.1993 by plaintiff.
45. Ex. B.1 is attested by two witnesses Agutu Chennaiah and Khalil Miah and scribed by D.W. 2. According to 4th defendant who was examined as D.W. 1, the payment of Rs. 1,10,000/- was made to the plaintiff at about 10.30 a.m. at Kurnool in the office of M/s. Balaji Finance Corporation in the presence of D.W. 2 and on receiving it, the plaintiff signed Ex. B.1. According to him, the plaintiff told him that Ex. A.1 was not with him at that time and therefore he did not make any endorsement on it, but promised to make such endorsement and return Ex. A.1 after the entire money is paid. He stated that one of the attestors Agutu Chennaiah died.
46. D.W. 2 stated that on 22.02.1993 at 09.00 a.m. he was discharged from duty as he had done night duty on the previous day and at 02:00 p.m. he again attended duty. At 09.30 a.m., he paid the cash in the office of the APSRTC and went to Nannoor in the bus; that he got down at the outskirts of Nannoor, and when he was going to his house by walk, he was called to the office of M/s. Balaji Finance Corporation. So he came to Kurnool in a bus which was going to Nandyal and by 10.00 a.m. or 10.20 a.m. he reached the office of M/s. Balaji Finance Corporation. According to him, only plaintiff was there at that time in the office of the said Corporation, that defendants were not present, but after five minutes they came with the money, handed it over and asked plaintiff to endorse on the original of Ex. A.1, but he said that it was not with him at that time. According to DW2, the plaintiff asked D.W. 2 to write a receipt and he wrote Ex. B.1 which was signed by plaintiff.
47. D.W. 3 is the other attestor of Ex. B.1. He spoke of D.W. 2 scribing Ex. B.1 and himself and Agutu Chennaiah attesting it. He stated that at 10.30 a.m., he came to Kurnool on a motorcycle and when he was taking tea along with Agutu Chennaiah in a hotel opposite to mosque, they were called by the plaintiff and made to attest Ex. B.1.
48. The trial court held that as D.W. 2 was on duty on 22.02.1993, the question of D.W. 2 scribing Ex. B.1 receipt is not possible and it is a concocted story. It also disbelieved D.W. 3 on the ground that on 22.02.1993, Ramana Reddy was murdered, that at that time D.W. 3 was in Kurnool, as he had come there on a motorcycle and did not go back to Nannoor, his village; that D.W. 3 stated in his cross-examination that he did not go through the contents of Ex. B.1 but saw the amount in figures, and therefore his evidence cannot be believed.
49. I am unable to agree with these findings of the trial court. The evidence of D.W. 1 is that the payment was made about 10.30 a.m. on 22.02.1993 and the above evidence of D.Ws. 2 and 3 shows that they were present in Kurnool on that day between 10.00 a.m. at least till 02.00 p.m. So it cannot be concluded, as the trial court did, that it is impossible for them to be there in the office of M/s. Balaji Finance Corporation at 10.30 a.m. on 22.2.1993 when Ex. B.1 was scribed. There is no requirement in law that an attesting witness should know the contents of the document he is attesting (See
50. In the rejoinder filed by the plaintiff, he stated that Ramana Reddy was murdered by the defendants as he had demanded from the defendants at the instance of the plaintiff the payment of the money borrowed under Ex. B.1, that the plaintiff was a prosecution witness and in view of this it was unthinkable that the defendants paid money and obtained a receipt from the plaintiff.
51. It may be that Ramana Reddy was murdered on 22.02.1993. According to Ex. X.1, the FIR in Crime No. 13 of 1993 registered in connection with his death, he was murdered at about 11.00 a.m. D.1 and D.3 were accused in the said murder but they were admittedly acquitted by the criminal court as spoken to by P.W. 3, the S.I. of Police of Orvakal. Also his death occurred not in Kurnool but near Nallagala Vagu Vanka at the outskirts of Nannoor village and not in Kurnool and the FIR was lodged at 13.00 hrs. on that day. Therefore, at about 10.30 a.m. on 22.02.1993, Ramana Reddy was very much alive. So there was no cause of there being any strained relations on account of the murder of Ramana Reddy at the time when the payment under Ex. B.1 was made by defendants to the plaintiff. Therefore, this plea of the plaintiff is false.
52. It is also the case of plaintiff that D.W. 2 became inimical to him as he had cancelled the adoption of one Jayaprakash, the son of D.W. 2 and so he colluded with the defendants and fabricated Ex. B.1. However, the cancellation of the adoption was only on 23.03.1993, more than a month after execution of Ex. B.1. Therefore, on 22.02.1993 when Ex. B.1 was executed, there was no reason for D.W. 2 to entertain any hostility towards the plaintiff. Even according to plaintiff, in order to get the son of D.W. 2 admitted in a residential school, he got his income certified as Rs. 6,000/- per annum, that a Writ Petition was also filed in this Court by him, as father of the said Jayaprakash. This also shows that there were no strained relations with D.W. 2 as on 22.02.1993.
53. Although plaintiff also contended that signatures were obtained on blank white papers by D.W. 2 in connection with the transfer of the share of Mahaboob Basha in M/s. Balaji Finance Corporation in the name of D.W. 2''s wife, and also in connection with the Writ Petition referred to above and he examined P.W. 2, his auditor to corroborate this, it is difficult to believe this story. The plaintiff was admittedly the Managing Partner of the said Corporation which was dealing in finance. If there was a transfer of a share of Mahaboob Basha in the name of D.W. 2''s wife, the question of obtaining the signatures of plaintiff on blank papers does not arise. A businessman like the plaintiff, running a concern dealing with finance, would not normally put his signatures on blank papers and give it to D.W. 2, who is not an employee or a partner in the said Corporation. As regards the writ petition, at the time when it was filed, Jayaprakash was the adopted son of the plaintiff and so the plaintiff himself would have signed the affidavit filed therein. So it is not possible to accept that D.W. 2 took his signatures on blank papers in connection with the Writ Petition and then fabricated Ex. B.1.
54. The court below also held that the defendants did not examine the persons who had given them Rs. 1,10,000/- to make the payment to the plaintiff on 22.02.1993. Admittedly, the defendants are owners of a large extent of land of Acs.70 and also engage in business in tobacco. Therefore, it would not be difficult for them to raise Rs. 1,10,000/- to be paid to plaintiff. Merely because they did not examine the persons who lent them the money, it cannot be said that they did not raise it from the said persons.
55. The court below also held that after filing O.S. No. 65 of 1993, it is doubtful if the defendants had paid Rs. 1,10,000/- under Ex. B.1 to the plaintiff and that the very filing of the suit is with oblique motive. The facts on record indicate that O.S. No. 65 of 1993 was filed on 18.02.1993 when there was an apprehension entertained by the defendant Nos. 1 to 4 of a possible threat of dispossession by the plaintiff. Ex parte injunction was not granted on that day and the suit was posted to 22.02.1993. So by 22.02.1993, notice in the suit was not served on the plaintiff. On that day ex parte injunction was granted. But before the said order was granted and notice served on plaintiff, by way of abundant caution, the defendants appear to have raised the money of Rs. 1,10,000/- and paid it to plaintiff in the presence of D.W. 2, 3 and Agutu Chennaiah and obtained Ex. B.1 receipt. In my opinion, considering the above facts in proper perspective, the defendants had acted as any prudent borrower would have done and played safe. Therefore, the observation of the trial court that there was no need for the defendants to file O.S. No. 65 of 1993, if they really had intention to pay the amount, is perverse. If the defendants had got an ex parte ad interim injunction before 22.02.1993, there would have been some substance in the view expressed by the trial court, but since that did not occur, its view cannot be accepted.
56. I also do not agree with the finding of the trial court that in the earlier part of Ex. B.1, the lines are very close as compared to the later part of Ex. B.1 and that this indicates that Ex. B.1 was fabricated on a paper containing the signature of plaintiff. A perusal of the original Ex. B.1 shows no significant difference in the space between the lines in it''s earlier and later parts.
57. It may be that the signature of the plaintiff on Ex. B.1 is in between the rubber stamped words "for Balaji Finance Corporation" and "Managing Partner". May be the rubber stamp was put to identify the signatory i.e., the plaintiff and his status. It cannot be ignored that the payment was made in the office of the said Corporation on 22.02.1993 and was scribed by D.W. 2, whose son was adopted at that time by plaintiff. D.W. 2 explained that as the said Corporation was dealing in money lending and he thought that D.W. 1-D.4 borrowed money from it and had come to repay it, he put the stamp.
58. It is not the case of the plaintiff also that amounts were owed by defendants to the said Corporation. In my opinion, the court below wrongly placed the burden on defendants to explain why the plaintiff received Rs. 1,10,000/- from them on behalf of the said Corporation and this view is perverse.
59. The defendants could have obtained an endorsement from plaintiff on the counter-part of Ex. A.1 (photo copy) about the payment of Rs. 1,10,000/- to the plaintiff but the fact that they did not do so, cannot be put against them. According to DWs 1-3, the defendants wanted plaintiff to endorse on Ex. A1 original, but the plaintiff stated that he did not have it at that time and instead asked DW2 to write Ex. B1. If a receipt acknowledging receipt of Rs. 1,10,000/- was given by plaintiff under Ex. B.1, there was no necessity for defendants also to get an endorsement on the counter part of Ex. A.1.
60. Therefore, for all the above reasons I hold that the defendant Nos. 1 to 4 had paid Rs. 1,10,000/- through D2 to plaintiff in the presence of D.W. 2 and D.W. 3 and obtained Ex. B.1 receipt from the plaintiff. Point (c) is answered accordingly.
Point (d):
61. The issue to be considered is whether for alleged default in payment of Rs. 1,30,000/- by 25.02.1993, the plaintiff would be entitled to get transfer of an extent of Acs.7.50 cents of land.
62. D.W. 1 stated that the land is valuable, each acre was worth Rs. 60,000/- to 70,000/-, and there existed an irrigation well and bore well with a submersible motor pump in the land and pleaded that the value of the land including the improvements would be more than Rs. 7,00,000/- on the date of Ex. A.1.
63. The plaintiff admitted that D.1 and D.4 had purchased the suit land for Rs. 30,000/- per acre and that groundnuts, sunflower, chillies and tomatoes (commercial crops) are grown there. He also admitted that there is a well and also a bore well in the land apart from electricity supply.
64. Even if the figure quoted by the plaintiff in his evidence is taken into account, the value of Acs.7.50 cents would be Rs. 2,25,000/-.
65. The point for consideration is - Should the plaintiff be allowed to get land of value Rs. 2,25,000/- for default in payment of a loan of Rs. 1,30,000/- payable in six months?
66. I have already held that Ex. A.1 is not an agreement of sale, but is an agreement dt. 01.09.1992 recording payment of Rs. 1,30,000/- by plaintiff to defendant Nos. 1 to 4, as a loan repayable without interest by 25.02.1993, and in default of such payment, entitling the plaintiff to get the land by a registered sale deed. I have also held that Rs. 1,10,000/- was paid by the defendant Nos. 1 to 4 to the plaintiff on 22.02.1993. Only Rs. 20,000/- remained to be paid. In my opinion, for a mere nonpayment of Rs. 20,000/-, it would be unconscionable to direct the transfer of the suit land to plaintiff by decreeing the suit for specific performance. In fact, in my view, it would be equally unconscionable to direct the transfer of the suit land worth Rs. 2,25,000/- to plaintiff by decreeing the suit for specific performance, even if Rs. 1,10,000/- was not paid.
67. It is no doubt true that in H.C. Mills (supra) cited by the counsel for the respondents, it was observed that there must be a plea in the pleadings by the defendant that a clause in the agreement providing for forfeiture of earnest deposit is in the nature of a penalty and the quantum of earnest deposit which was forfeited was unreasonable, and in the absence of such a plea, it cannot be entertained. That was a case where an advertisement was issued by the respondent before the Supreme Court offering sale of aero-scrap by way of advertisement, and by correspondence it was finalised in favour of the appellant, but later the appellant wanted it to be cancelled. 25% of the total value was to be the earnest deposit. The respondents forfeited Rs. 2,50,000/- deposited as earnest money by the appellants out of the total consideration of Rs. 10,00,000/- basing on a clause in its terms of business which provided for such forfeiture in the event of default in payment of amounts stipulated. This act of respondents was upheld by the Supreme Court. This decision was also followed in Bali Ram Dhote (supra). In that case the Calcutta High Court held the forfeiture of Rs. 10,001/- paid as earnest money by the plaintiff towards purchase of land of value Rs. 2,80,000/-, is proper.
68. These cases are inapplicable because in the written statement filed by the 4th defendant, it is clearly stated that the clause in Ex. A.1 for transfer of land to the plaintiff in the event of default is a penal clause and was inserted "in terrorem", that it is not valid and cannot be enforced. As the defendants have specifically raised this plea, the court is bound to go into it. So H.C. Mills (supra) and Bali Ram Dhote (supra) have no application to this case.
69. u/s 74 of the Contract Act, 1872 when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract, reasonable compensation not exceeding the amount so named, or as the case may be, the penalty stipulated for. Illustrations (d), (e) and (g) to Section 74 state as under:
(d) A gives B a bond for the repayment of Rs. 1,000/- with interest at 12 percent at the end of six months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 percent from the date of default. This is stipulation by way of penalty, and B is only entitled to recover from A such compensation as the Court considers reasonable.
(e) A, who owes money to B, a money-lender, undertakes to repay him by delivering to him 10 maunds of grain on a certain date, and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is stipulation by way of penalty, and B is only entitled to reasonable compensation in case of breach.
...
(g) A borrows Rs. 100 from B and gives him a bond for Rs. 200 payable by five yearly instalments of Rs. 40, with a stipulation that, in default of payment of any instalment, the whole shall become due. This is a stipulation by way of penalty.
70. In my opinion, the stipulation in Ex. A.1 that for default in payment of Rs. 1,30,000/- by 25.02.1993, property worth Rs. 2,25,000/- (according to the plaintiff''s own evidence) would stand transferred, is one similar to that mentioned in the above illustrations to Section 74 of the Contract Act, 1872. It is therefore clearly in the nature of a stipulation in the nature of a penalty and cannot be enforced.
71. u/s 20 of the Specific Relief Act, 1963, jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. Where the terms of the contract or the conduct of the parties at the time of entering into the contract or other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant, the court may not decree specific performance. [see Clause (a) to Sub-section (2) of Section 20].
72. In
19. It will also be useful to refer to the provisions of Section 20 of the Act which vests the court with a wide discretion either to decree the suit for specific performance or to decline the same. Reference in this regard can also be made to Bal Krishna v. Bhagwan Das, where this Court held as under:
13. ...The compliance with the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff''s readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court.
14. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court''s discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.
20. Similar view was taken by this Court in Mohammadia Coop. Building Society Ltd. v. Lakshmi Srinivasa Coop. Building Society Ltd. where the Court reiterated the principle that jurisdiction of the court to grant specific performance is discretionary and the role of the plaintiff is one of the most important factor to be taken into consideration.
21. We may also notice that in Parakunnan Veetill Joseph''s Son Mathew v. Nedumbara Kuruvila''s Son, this Court further cautioned that while exercising discretionary jurisdiction in terms of Section 20 of the Act, the court should meticulously consider all facts and circumstances of the case. The court is expected to take care to see that the process of the court is not used as an instrument of oppression giving an unfair advantage to the plaintiff as opposed to the defendant in the suit.
(emphasis supplied)
73. Applying the above principles to the facts of this case, in my considered opinion, upholding the decree of specific performance granted by the court below, in the light of the findings recorded by me supra, would not be proper and would result in giving an unfair advantage to the plaintiff over the defendants. The conduct of the plaintiff and the pleas raised by him having been proved to be false, also disentitle him to the discretionary relief of specific performance.
74. However, he would certainly be entitled to recover from defendants the balance amount of Rs. 20,000/- from out of the loan of Rs. 1,30,000/- at appropriate rate of interest.
75. In this view of the matter, the appeal A.S. No. 2443 of 1999 is allowed setting aside the judgment and decree dt. 25.08.1999 in O.S. No. 28 of 1993 of the Principal Senior Civil Judge, Kurnool in so far as the said Court granted a decree of specific performance to respondents. However, the respondents are entitled to recover Rs. 20,000/- with interest at 9% from 01.09.1992 till the date of filing of the suit and thereafter @ 6% till realisation. As the decree for specific performance in O.S. No. 28 of 1993 has been set aside, since CRP. No. 1578 of 2009 is dependent upon the said decree for specific performance, the said CRP is also allowed and the order dt. 17.03.2009 in O.S. No. 29 of 1993 on the file of the Addl. Senior Civil Judge, Kurnool is also set aside. No costs.
