RAKESH KUMAR GARG, J. - (1.) SUIT of the plaintiff -respondent for possession of the suit property by way of specific performance of the agreement to sell dated 20.08.2007 with respect to the suit land was decreed by the trial Court and the appeal filed against the aforesaid judgment and decree of the trial Court was also dismissed.
(2.) STILL not satisfied, defendant No.1 has filed the instant appeal challenging the judgments and decrees of the Courts below. Suffice it to say that the defendant -appellant has contested the suit on the ground that he had taken a loan from the plaintiff -respondent and had executed an agreement on a stamp paper with the plaintiff -respondent as a security for repayment of the aforesaid loan amount. Since the appellant could not return the loan amount, the plaintiff -respondent again got his signatures on the alleged agreement after adding interest on the earlier amount. The appellant wanted to return the amount along with interest @ 12% per annum whereas the plaintiff -respondent was claiming the same @ 3% per month, and thus, from the aforesaid facts it is crystal clear that no agreement to sell was executed and the document in question was executed only as a surety to the loan amount.
(3.) THE aforesaid defence taken by the appellant was not accepted by the courts below. It is useful to refer to the following observations of the lower appellate Court: ''21. After hearing the learned counsel for the appellant, learned counsel for the respondent, I am of the view, that, may be, earlier also, one agreement to sell Ex.D1, was entered between the parties, but from the affidavit of the respondent, dated 1.2.2012, it stands proved, that said agreement was not, with regard to the suit property, but about 08 Kanals of land, bearing Mustil No.100 Killa No.17 and same is evident from photo copy of the said agreement Ex.D1. Whereas, appellant was not willing to execute the sale deed, on the basis of the said agreement Ex.D1, in fact, he was constrained to execute the same, so, at his prayer, the same was cancelled. Since, agreement Ex.D1, was not, with regard to the suit property, so, the question of its mentioning, in the present suit, does not arise at all. The question is, if there was earlier an agreement, entered between the parties, then the second agreement, how could be said to be nothing, but obtained just as security for loan transaction. Moreover, the Khasra No., in the present agreement has only been mentioned, if the copy of the Jamabandi, or numbers were told by the appellant, otherwise, it was not possible for the respondent to get this Khasra No., mentioned in agreement. Moreover, not only once, but thrice, he has thumb marked the agreement, while extending the time for execution of the sale deed, vide endorsements Ex.PW2/B and Ex.PW2/C. No doubt, vide endorsement Ex.PW2/B, no further payment was made. However, no plea is available to the appellant, to take that the same was extended, only because of the reason, that he could not arrange the money to return the loan. Whereas, it was extended between the parties with mutual consent. So, the parties are bound by the same and no inference can be drawn, that this agreement was got executed, just as security of loan transaction. In fact, the terms and conditions of the agreement are very clear and parties are bound by the same terms and conditions and they cannot wriggle out the same, by taking any contrary plea. Moreover, for the first time, while executing this agreement, appellant could be said to be under pressure, undue influence of respondent, but not at the time of extending time for execution of sale deed atleast thrice. 22. Even if the witnesses of the earlier agreement Ex.D1, and the present agreement Ex.PW1/B, are the same, how it affects, I failed to understand. The witnesses have deposed, whatever, has been settled between the parties, through this agreement and witnesses have to derive nothing by deposing falsely. So, as such, even, if the witnesses of Ex.D1 and Ex.PW1/B are the same, it does not create any type of doubt, about its execution, especially when the appellant has not denied his thumb impressions, not put only once, but thrice upon this agreement. Therefore, trial Court has rightly held this agreement to sell Ex.PW1/B valid and genuine. 23. So far as readiness and willingness is concerned, when the appellant has even denied the execution of the agreement to sell and has taken a plea, that it is nothing, but was executed just as security for loan taken by him from respondent. So, it does not lie in his mouth to say that respondent was not ready and willing to perform his part of the contract. Hence, the trial Court has also rightly held, that respondent is ready and willing to perform his part of contract. 24. Therefore, for the reasons given above, I find no illegality or irregularity in these findings of the trial Court, arrived at, on issues No.1 to 3. Hence, the findings of the trial Court, on issues No.1 to 3, are affirmed. '' ;