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Monday, February 26, 2018

Erroneous findings are liable to be set aside = We fail to understand how the High Court could come to this conclusion. In the written statement the defendant had denied the averments made in Para 2 of the plaint. The defendant had denied that he had received Rs.92,000/­ as earnest money. There was no admission by him of any of the allegations. The reasoning given by the High Court is specious and cannot stand scrutiny. The High Court did not discuss the evidence at all and erred in setting aside the concurrent findings of both the Courts.

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‘NON­REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 2435  OF 2018
(@SLP (C) NO(S).34464 OF 2016)
DALIP SINGH        …. Appellant(s)
Versus
BHUPINDER KAUR      … Respondent(s)
J U D G M E N T
Deepak Gupta J.
1. Leave granted.
2. This   appeal   is   directed   against   the   judgment   dated
05.08.2016   in   Regular   Second   Appeal   No.1442   of   2010
passed by the High Court of Punjab & Haryana at Chandigarh
whereby concurrent findings of fact of the trial court and the
lower appellate court have been set aside. 
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3. Briefly stated the facts of the case are that Bhupinder
Kaur (respondent­plaintiff) filed a suit for specific performance
of agreement to sell dated 25.02.1999, whereby Dalip Singh
(appellant­defendant)   had   allegedly   agreed   to   sell   the   suit
property to her for a consideration of Rs.1,50,000/­ out of
which Rs.92,000/­ was paid at the time of the agreement. 
4. The  trial  court dismissed the  suit  holding  that  there
were   many   suspicious   circumstances   surrounding   the
agreement.  Though the trial court did not totally believe the
case set up by Dalip Singh that he had not even signed the
agreement,   it   held   that   the   plaintiff   Bhupinder   Kaur   had
failed to prove her own case.   After discussing the evidence
threadbare, the trial court held that the plaintiff had failed to
prove   that   an   amount   of   Rs.92,000/­   was   paid   to   the
defendant.  The court referred to the statement of the plaintiff
in which she had stated that she had withdrawn this amount
of Rs.92,000/­ from the Oriental Bank of Commerce.  She did
not produce the passbook of the Bank to prove this allegation.
In fact, the defendant examined a witness from this Bank,
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who proved that from 01.02.1999 to 01.03.1999 there was no
transaction in the account by the plaintiff.  Thus, the plaintiff
had   miserably   failed   to   prove   that   she   had   paid   a   huge
amount of Rs.92,000/­ to the defendant.  The trial court also
came to the conclusion on the basis of the evidence that the
agreement   was   for   consideration   of   Rs.1,50,000/­   but   the
value of the property at the relevant time was not less than
Rs.5,00,000/­. 
5. The lower appellate court, after discussing the  entire
evidence, upheld the decree of the trial court.  It also found
that   the   defendant  is   an   illiterate   person   and   even   if   his
signatures   on   the   agreement   were   accepted   to   be   there,
nobody had led evidence to show that the document was read
out and explained to him before he signed the same.  It would
also be pertinent to mention that within four days of the
agreement being signed, the defendant had issued notice on
01.03.1999 clearly stating that he had not entered into any
agreement to sell nor he had received Rs.92,000/­.  Therefore,
this was not an afterthought. 
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6. Surprisingly, the High Court, in second appeal, upset
these findings of facts without even discussing the evidence
and merely after referring to certain averments of Para 2 of
the plaint and paragraph 2 of the written statement, which
read as follows:
  “Para No.2 of the plaint
That at the time of execution of the agreement to
sell dated 25.02.1999 the defendant received a
sum of Rs. 92,000/­ from the plaintiff as earnest
money in advance and agreed to execute the sale
deed   in   favour   of   the   plaintiff   on   or   before
16.07.1999.
Paragraph 2 of the written statement on merits
“Para No.2 of the plaint is wrong and denied.
The defdt. Never received Rs. 92,000/­ from the
plaintiff as earnest money on 25.02.99 nor the
plaintiff ever paid this amount to the defdt. It is
denied that the sale deed was to be executed on
or before 16.7.99.”
The High Court held that on the basis of the aforesaid
pleadings,  the irresistible conclusion is that the agreement to
sell was actually executed and readiness and willingness has
been proved. 
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7. We fail to understand how the High Court could come to
this conclusion.  In the written statement the defendant had
denied the averments made in Para 2 of the plaint.   The
defendant had denied that he had received Rs.92,000/­ as
earnest money.  There was no admission by him of any of the
allegations.     The   reasoning   given   by   the   High   Court   is
specious and cannot stand scrutiny.  The High Court did not
discuss the evidence at all and erred in setting aside the
concurrent findings of both the Courts. 
8. In view of the above discussion, we allow the appeal, set
aside the judgment of the High Court and restore the decree
of the trial court.   
9. Pending   applications,   if   any,   shall   also   stand
disposed of.
………………………...J.
(Madan B. Lokur)
…………………………J.
(Deepak Gupta)
New Delhi
February  23, 2018

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