The Commissioner of Income Tax (Central) vs. Raju Neuro AND Multi Specialties Pvt Ltd.,

1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR FA No. 531 of 2017 • Ashok Jaiswal S/o Shri R. P. Jasiwal, Aged About 42 Years R/o Rajasva Colony, Bilaspur, District Bilaspur, Chhattisgarh. --- Appellant/Plaintiff. Versus 1. Vimla Bai (Died) Through Lrs A. Uma Soni D/o Late Shri Mannulal Soni Aged About 60 Years, B. Sunita Soni D/o Late Shri Mannulal Soni, aged about 45 years, Both are R/o Village Jamaha, Post – Chinu, Nawagaon, District Mungeli, Chhattisgarh

--- Respondents/Defendants. ----------------------------------------------------------------------------------------------- For Appellant : Mr. A. K. Prasad with Mr. Rishikant Mahobia, Advocates For Respondents : Mr. Manoj Paranjpe with Mr. Aman Tamboli, Advocates ------------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice

Deepak Kumar Tiwari

Judgment on Board by Justice Goutam Bhaduri J. 12.09.2023 1. This appeal is filed against the judgment and decree dated 26.10.2017 passed by the District Judge, Mungeli passed in Civil Suit No.36-A/2011, whereby, the suit filed by the appellant/plaintiff for specific performance of contract was dismissed. 2. Facts of the case, in brief, are that the suit was filed on the ground that the plaintiff entered into an agreement with defendant Vimla Bai for purchase of land situated at Village Jamha, Tehsil Mungeli bearing Khasra No.382 & 394, admeasuring 2.411 hectares for a sale consideration of Rs.13,00,000/-. As per the agreement executed on 10.12.2007, an amount of Rs.25,000/- was paid as earnest money.

2 Subsequently, on 26.02.2008, an amount of Rs.4,00,000/- and on 10.07.2008, an amount of Rs.1,75,000/- were further paid towards sale consideration and thereby, a total amount of Rs.6,00,000/- was paid by the plaintiff to the defendant and an amount of Rs.7,00,000/- still remained to be paid. It is averred by the plaintiff that the plaintiff was ready and willing to purchase the said land, however, despite service of notice, the defendant did not express her willingness to execute the sale deed and tried to sell the said suit property to another person. Eventually, the suit was filed for specific performance. 3. The defendant in her reply contended that amounts of Rs.25,000/- and Rs.4,00,000/-, respectively, which claimed to be paid by the plaintiff as earnest money, were never paid. Though, the contract was entered into between the parties for sale of the land but only an amount of Rs.1,75,000/- was paid towards purchase of the said property. It was further contended that certain entries which were made in the contract (Ex.P-1) were outcome of fraud and thus, the specific performance of the same cannot be ordered for. 4. During the trial, total 4 witnesses have been examined by the plaintiff, whereas, the defendant has examined herself and her daughter. The learned District Judge has framed as many as 6 issues and held that the agreement dated 10.12.2007 has not been proved, apart from the finding that an amount of Rs.6,00,000/- was not paid which was agreed to by the parties. The Court below further held that the plaintiff was not ready and willing to perform his part of contract and such finding resulted in dismissal of the suit and filing of the present appeal.

3 5. Learned counsel for the plaintiff/appellant submits that the plaintiff has proved the execution of agreement and its existence by the statements of witnesses Naresh Kesharwani (PW-3) and Sharad Jaiswal (PW-4) before whom the transactions were made. Further, their statements were duly corroborated and admitted by DW-1 and her daughter DW-2, wherein, the existence of agreement was accepted and the contents therein were also admitted. It was further admitted that the signature was put on such document after the parties went through the agreement. Therefore, there was no occasion for the trial Court to disbelieve such statement. He further submits that the existence of the said agreement has also been admitted by the defendant. It is further argued that the finding with regard to readiness and willingness to execute the contract has wrongly been arrived at by the trial Court as the plaintiff has served the notice to the defendant through paper publication and also by registered notice vide Ex.P-2 to execute the sale deed. He submits that the plaintiff was having sufficient means to pay the remaining sale consideration and same is proved by the Income Tax Return. Thus, the trial Court has wrongly appreciated the facts and dismissed the suit vide the impugned judgment and decree, which deserves to be set-aside. 6. Per contra, learned counsel for the respondent/defendant submits that contradictory statements were made by the plaintiff’s witnesses from the very beginning of execution of the agreement and the place where it was executed is also doubtful. Further, overlapping statements were also made in this regard. He also submits that the defendant categorically admitted to have received an amount of

4 Rs.1,75,000/-, which is endorsed in the backside of the agreement (Ex.P-1) and there was no occasion to interpret that an amount of Rs.4,00,000/- has been paid and this fact has not been supported by any evidence. Therefore, the sale consideration has wrongly been endorsed in the agreement and the same would bring the entire execution of the document Ex.P-1 under doubt and would disentitle the appellant to get a decree of specific performance. Therefore, the impugned judgment and decree passed by the learned District Judge is well merited and does not call for any interference. 7. We have heard learned counsel appearing for the parties and perused the record and evidence available therein. 8. In the agreement (Ex.P-1), the date is mentioned as ‘10.02.2007’ whereas, the plaintiff stated that it was executed on ‘10.12.2007’. While reading the first page of the agreement, it appears that the suit land was agreed to be sold for Rs.13,00,000/- and Rs.25,000/- was paid as earnest money towards it. On reading at the backside of the said agreement, an endorsement exists that on 26.02.2008, an amount of Rs.4,00,000/- was said to have been received by the seller in cash and subsequent thereof, on 10.07.2008, an amount of Rs.1,75,000/- was said to have been received. The said agreement (Ex.P-1) was notarized on 10.12.2007. 9. The plaintiff was examined as PW-1 and in his statement he has stated that Vimla Bai was brought by Jaisingh @ Ajay. He has also shown his ignorance to the fact as to whether the stamp was purchased by Vimla Bai or not. It is also stated that Ajay Singh was accompanied by Vimla Bai and further, he voluntarily stated that Ajay and Jai are the

5 same person. According to the plaintiff, the agreement was executed on 10.12.2007. Further, he admitted that the agreement (Ex.P-1) was not executed before the Notary. Jai Singh Verma (PW-2) has stated that he brought Vimla Bai to Mungeli and she came along with her relatives. He has also stated that Vimla Bai is residing at Jamaha and she could not walk and used to drag on floor to move. Sharad Jaiswal (PW-4) in his statement states that Vimla Bai executed an agreement before Notary. So about the place of execution, this witness contradicts the statement of plaintiff (PW-1). This witness further stated that Rs.25,000/- was paid in the house of Vimla Bai at Village Jamaha. In respect of the place of the agreement, 3 witnesses have given contradictory statements against one another. Whereas, Vimla Bai (DW-1) was examined on Commission and in her statement, she stated herself to be aged 80 years. She has stated that the agreement was executed in the month of July, 2007 and Rs.1,75,000/- was paid towards sale consideration. Further, she denied the presence of Jai Singh and Sharad Jaiswal at the time of agreement, however, she stated that at that time, her daughters were present along with some relatives i.e Ramswaroop and Ashok Jaiswal. On being asked with regard to the document of execution of agreement, the same was avoided by the plaintiff. 10. Further, perusal of the backside of the agreement would show that on 10.07.2008, Rs.1,75,000/- was paid, which was admitted by the seller and the date of execution of sale deed was fixed for 31.03.2009 and it is also written therein that the demarcation and its papers would be arranged by the seller. Sharad Jaiswal (PW-4) in paragraph 7 of his statement stated that at the time of demarcation, he had seen the suit

6 property. It appears that the demarcation was already done in respect of the property as the agreement itself spells out the boundaries of the immovable property and thus, the subject of sale appears to be more plausible. Further, the statement of Sharad Jaiswal (PW-4), who tried to support the payment of earnest money of Rs.25,000/- to the seller at the time of initial agreement, is in contradiction with the written agreement between the parties, which appears to be more doubtful. 11. As regards payment of Rs.4,00,000/- is concerned, the same was denied by the defendant. Perusal of the endorsement on the backside of the agreement shows the name of one Vimla Bai. When the said signature was confronted with the defendant (DW-1), she denied to have executed the same by stating that she is unable to see as she has lost her vision. The said signature of Vimla Bai was not confronted with her daughter (DW-2). Apart from that, except the assertion of Naresh Kesharwani (PW-3) that Rs.4,00,000/- was paid in cash by Ashok Jaiswal (PW-1) in his presence, there is nothing on record to substantiate the fact with regard to arrangement of the said amount. Since an amount of Rs.4 Lacs, not being a small amount, the plaintiff could have adduced an evidence to prove that he was having cash in hand and he had withdrawn the same from Bank. The said part of the statement when compared with the endorsement showing payment of Rs.4 Lacs, the trial Court has observed that certain part sharing amount was tampered with in the subject agreement and Rs.4 Lacs was written in it. By applying the rules of preponderance of probability, the contention of the defendant appears to be more plausible to accept.

7 12. For the foregoing, we are of the view that when the subject agreement on which the plaintiff/appellant is harping upon to show that certain amount of sale consideration has been paid and endorsed, it appears that the same has not been paid, which would affect the entire agreement and its very existence and element of fraud creeps in, which would vitiate the entire genesis of the issue. 13. Under the circumstances, we are of the opinion that the impugned judgment and decree passed by the learned District Judge is just and proper warranting no interference by this Court. 14. Ex consequenti, the appeal, sans substratum, is liable to be and is hereby dismissed, leaving the parties to bear their own costs. 15. Decree be drawn accordingly. Sd/- Sd/- (Goutam Bhaduri) (Deepak Kumar Tiwari) Judge Judge Ajay