Pradeep Nandrajog, J.— On the pleadings of the parties, vide order dated 28/09/03, following issues were framed:

“1. Whether the document dated 16.6.2003 purporting to be receipt tantamount to an agreement to sell between the parties?

2. Whether the signatures on document was obtained from the defendant under duress, undue influence as pleaded in the written statement, if so, its effects?

3. Relief?”

2. Parties have led evidence. In light of the pleadings, oral and documentary evidence led, I decide the three issues by the instant judgment.

3. Issue No. 1 requires adjudication in relation to the document dated 16.06.2003 The document is an admitted document and stands exhibited as Ex PW-1/1. It is a hand written document. It reads as under:—

“16th June, 2003 RECEIPT

RECEIVED with thanks a sum of Rs. 50,000/- (RUPEES fifty thousand only) from Shri SANJAY PURI, S/o Late Shri P.R PURI, R/o 3167 C-III, VASANT KUNJ, NEW DELHI-57 being the token advance towards sale of my Ground Floor flat at F5/7, VASANT VIHAR, NEW DELHI-57. THE total consideration has been fixed for Rs. 1,15,00,000/-(ONE CRORE & Fifteen Lacs only). THE VACANT physical possession shall be handed over some time in Oct.2003

Witness

DEEPAK JANA

S/O Sh. Bihari Jana

F-5/7 Vasant Vihar

RADHEYLAL

R/o F5/7 VASANT VIHAR

New Delhi 57

16th June 2003

R.C Nair

R/o S5 G.K.I

4. Following stands recorded in Ex. PW-1/1:—

(a) Acknowledgment by defendant of having received Rs. 50,000/- from the plaintiff.

(b) Acknowledgment that sum of Rs. 50,000/- is token advance.

(c) Acknowledgment that sum of Rs. 50,000/- received as token advance is towards sale of ground floor of property No. F-5/7, Vasant Vihar, New Delhi-57.

(d) Acknowledgment that total sale consideration is Rs: 1,15,00,000/-(Rs. One Crore and Fifteen Lacs Only).

(e) That vacant possession would be handed over in October, 2003.

5. Ex. PW-1/1 is titled as a receipt, but mere heading or title of a document cannot deprive the document of’ it's real nature. Law is well settled. It is the substance and not the form which matters, (see AIR 1936 P.C 171. Md. Akbar Khan v. Attar Singh and AIR 1976 SC 640 C.I.T Punjab v. Panipat W & G Mills).

6. Vide Section 2(h) of the Contract Act, an agreement enforceable by law is a contract. Thus where a document has all features of an agreement to sell it would constitute a contract between the parties.

7. Section 54 of the Transfer of Property Act, 1882 defines sale as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. As a corollary, a written document signed by the owner containing the terms on which ownership would be transferred, terms being the ones necessary to constitute the transfer, subject to acceptance by the purchaser would be an agreement to sell.

8. Ex. PW-1/1 does not state that any formal agreement to sell would be executed. It records that defendant has received from the plaintiff a sum of Rs. 50,000/- as token advance towards sale of the suit property, price whereof is Rs. 1,15,00,000/- (Rs. One Crore & Fifteen Lacs Only). Date when possession would be handed over has been fixed on October, 2003.

9. The buyer is ascertained. The seller is ascertained. The property is ascertained. The sale price is ascertained. By recording that possession would be handed over in October, 2003, date of completion of the sale transaction is firmed. All features of an agreement to sell are contained in Ex.PW-1/1.

10. Learned counsel for the defendant urged that Ex. PW-1/1 does not bear the signatures of the plaintiff and therefore cannot be an agreement to sell. Counsel drew attention to the fact that the defendant has categorically deposed as under:—

“That Ex. PW-1/1 is not enforceable at law for want of mutuality -------- the receipt of earnest money towards sale flat lacks the essential and basic ingredients required for an agreement to sell---------the same is not signed by both parties.”

11. Neither has defendant stated, nor his counsel could point out as to what ingredient of an agreement to sell was missing from Ex. PW-1/1. Only thing harped upon was that purchaser had not signed the same and therefore, the document lacked mutuality.

12. Though, learned counsel for the defendant did not cite any authority I may note that a learned single Judge of this Court, R.C Chopra, J. in the decision reported as 2003 (68) DRJ 670 Lalit Kumar Sabharwal…Plaintiff v. Ved Prakash Vijh…Defendant has taken a view that being not signed by the purchaser the document which was titled as a receipt was a mere receipt and did not attain the status of an agreement to sell.

13. But, the learned Single Judge has cited no principle nor a decision for the view taken.

14. Section 9 of the Transfer of Property Act, 1882 states that a transfer of property may be made without writing in every case in which writing is not expressly required by law. In case of immoveable property of the value of Rs. 100/- and upwards, sale can be made only by a registered instrument. But an agreement to sell is not a sale. Law does not prohibit a written offer signed by one party being accepted orally by the other party. In the decision reported as (1835.) 3 A&E 355 Dobell v. Hutchinson a letter repudiating liability was held sufficient if it admitted the terms of the contract while disputing the construction put upon them by the other party. In the decision reported as (1866) LR-1 Ex. 342 Reuss v. Picksley & Anr. it was held that a proposal in writing, signed by the party to be charged, and accepted by parol by the party to whom it is made, is a sufficient memorandum or note of an agreement. In the report published as (1901) 1 ch.543 Lever v. Koffler, in an action for specific performance of an agreement whereby defendant agreed to let to the plaintiff certain premises upon the terms mentioned in a letter addressed to the plaintiff and signed by the defendant's authorized agent, accepted orally by the plaintiff, it was held that acceptance by parol evidence and upon proof of acceptance was sufficient for a complete agreement between the parties. In the decision reported as (1960) 1 WLR 286 Parker & Anr. v. Clark & Anr., a written offer was held capable of being a good memorandum if proved to be accepted by the plaintiff by parol evidence.

15. Defendant has admitted the receipt but has pleaded that it was obtained under duress and undue influence. Acceptance of the receipt by the plaintiff is not denied.

16. I, therefore, beg to differ with the view taken by R.C Chopra, J.

17. Second point urged was that while acknowledging receipt of Rs. 50,000/- under Ex. PW1/1 the words used is ‘token advance’. Counsel urged that Rs. 50,000/- could thus not be equated with advance payment received and therefore on said count it could not be said that Ex. PW1/1 was an agreement to sell because under an agreement to sell advance is received and not token advance.

18. The argument has to be noted and rejected for the reason no law requires advance payment to be received as a condition precedent for an agreement to sell coming into existence. Besides, an advance paid at the time of executing an agreement to sell represents the earnest intention of the purchaser to purchase. Giving an earnest or earnest money is a mode of signifying assent to a contract of sale or the like by giving to the vendor a nominal sum as a token that the parties are in earnest or have made up their minds. In England, in the good old days, a shilling used to be given as an earnest to evidence a concluded bargain. Benjamin, in his book on ‘Sale’ 8th Edition at page 219 has opined:—

“Giving something in ‘earnest’ or ‘in part payment’, are often treated as meaning the same thing, although the language clearly intimates that the earnest is ‘something to bind the bargain’, or ‘the contract’, whereas it is manifest that there can be no part payment till after the bargain has been bound, or closed.”

19. Issue No. 1 is accordingly decided in favour of the plaintiff and against the defendant. I hold that the document dated 16.6.2003, Ex. PW-1/1 constitutes an agreement between the parties whereunder defendant agreed to sell the suit property to the plaintiff for a sale consideration of Rs. 1.15 crores and received Rs. 50,000/- as advance payment.

20. Issue No. 2 requires an analysis of the circumstances in which Ex. PW-1/1 was executed and the oral evidence led by the parties.

21. Ex. PW1/1 has been signed by the defendant. It has been witnessed by one Shri Deepak Jana and Shri R.C Nair. However the place where Shri Deepak Jana has witnessed has been scored off by scribing over.

22. Plaintiff who examined himself as PW-1 stated in his examination in chief that he was engaged in business of sale and purchase of properties in Delhi. That in first week of June, through R.C Nair, defendant approached him for sale of the suit property. Sale consideration settled was’ Rs. 1,15,00,000/-. On 16.6.2003 he paid defendant Rs. 50,000/- as token advance and defendant executed Ex. PW1/1. That it was agreed that balance sale consideration would be paid before October 2003 whereupon vacant physical possession of the property would be handed over to him. Simultaneously, sale documents were to be executed. That he was shocked to receive a legal notice dated 26.6.2003 from the counsel for the defendant enclosing therewith a bankers cheque in sum of Rs. 50,000/-. That denial of the transaction in the legal notice was an attempt by the defendant to get over the transaction.

23. Cross examined by the counsel for the defendant, plaintiff stated that Ex. PW1/1 was written by him. He did not score off the signatures of Deepak Jana on Ex. PW1/1. He maintained his stand that the deal was finalized through Shri R.C Nair and that at the asking of Shri R.C Nair he went to the house of the defendant on 16.6.2003 He denied the suggestion that Deepak Jana was an illiterate person and stated that Deepak Jana had signed in English. He denied that he knew defendant for last over 10 years or that he was treating defendant like his father. He denied that he could dominate over the will of the defendant. Questioned as to who struck off signatures of Deepak Jana on Ex. PW-1/1, he stated that defendant did so.

24. Sh. R.C Nair was examined as PW-2. He deposed that he knew plaintiff who was engaged in the business of sale and purchase of properties. He stated that he had witnessed Ex. PW-1/1 which was executed by defendant in his presence after receiving Rs. 50,000/- from the plaintiff.

25. Cross examined by Counsel for the defendant, R.C Nair stated that he knew plaintiff as he i.e R.C Nair was dealing in properties. He stated that he had visited house of defendant twice before deal was finalized. That on 16.06.2003, he had rung up the plaintiff from defendant's house and called him over to finalize the deal. He identified signature of Deepak Jana on Ex. PW-1/1 by pointing to point marked B but stated that signatures were now cut. He denied that he was trying to grab the property in connivance with the plaintiff.

26. Since it would be relevant for discussing, while evaluating the evidence, a suggestion to PW-2 and its answer may be noted. It is as under:—

“Q. I put it you had accompanied Sh. Radhey Lal and Sh. Sanjay Puri to the bank for depositing Rs. 50,000/-

Ans: It is incorrect.”

27. Defendant examined himself as DW-1. Since examination in chief is on affidavit, I may note the relevant parts. Defendant stated:

“3. That, the deponent i.e defendant was induced by undue influence, plaintiff who was in a position to dominate the will of the deponent defendant. I deponent i.e defendant is 90 years old and has been holding important position in Government Servants Cooperative House Building Society, Vasant Vihar, New Delhi for several years. That the deponent i.e defendant No. 1 is also known figure in Anand Niketan and Shanti Niketan, New Delhi.

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5. That the deponent further submits that the plaintiff who is resident of A8/21 Vasant Vihar, New Delhi came in to contact with the deponent i.e defendant and met him several times to promote his business. That the deponent submits again that the plaintiff had given advertisement in the years 2001 and 2003 in the Directories of Vasant Vihar Welfare Association. Exhibited as the Ex. DW1/32. It was then that the plaintiff developed relations with the deponent defendant I to gain unfair advantage of his experience and position in the Government Servant Cooperative Housing Society, Vasant Vihar, New Delhi. The relations are still subsisting between the plaintiff and the deponent i.e defendant No. 1.

6. That the deponent, defendant No. 1 submits further that the relations are such of a nature that, the plaintiff treated the deponent i.e defendant as father. The plaintiff was therefore in a strong position to dominate the will of the deponent i.e defendant No. 1 and used that position to obtain unfair advantage over the deponent i.e defendant No. 1. The plaintiff was in a position to dominate the will of the deponent i.e defendant No. 1 as the plaintiff made a alleged receipt dated 16.6.2003 exhibited as Ex. PW1/1 obtained his signatures by fraud, misrepresenting, breach of trust and without free consent, whose mental capacity has been permanently affected by reason of age, illness and bodily distress.

7. That the deponent i.e defendant No. 1 has been a patient of follow up case (Cataract operations) in both the eyes, prostrate, blood pressure and skin disease. The deponent i.e defendant No. 1 has been under the treatment of Batra Hospital, New Delhi, Ram Manohar Lohia Hospital, New Delhi and C.G.H.S dispensaries exhibited as Ex. DW1/7, 8, 9, 10,

11. That the deponent i.e defendant No, 1 is feeble and has been living alone in his house No. F 5/7, G.F, Vasant Vihar, New Delhi and is totally dependent upon the servant for mobility. That the deponent i.e defendant No. 1 is also patient of Parkinson's disease and unable to walk independently, the plaintiff was in a position to dominate the will of the deponent i.e defendant No. 1 to enter into alleged transaction dated 16.6.2003, exhibited as Ex. DW1/1. That the deponent i.e defendant No. 1 submits further that the alleged transaction is on the face of it and on the evidence adduced is unconscionable the burden of proving that such alleged transactions based upon undue influence, without free consent, obtained fraudulently is upon the plaintiff. Who was in a position to dominate the will of the deponent i.e defendant No. 1.

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22. That the deponent i.e defendant No. 1 submits again that the plaintiff tried to involve his servant i.e Deepak Jana as is apparent from the alleged receipt (Exhibited as Ex. DW1/1) to gain unfair advantage over the defendant No. 1.”

28. In his cross examination, defendant stated:—

“I have been holding different positions in the society of Vasant Vihar and Shanti Niketan from 1991 to 2001. The people of the society had faith in me because I was holding important position. It is correct that nobody could exercise any undue influence upon me, however, the plaintiff Sh. Sanjay Puri exercised undue influence over me for the first time in 1991-1992. The undue influence was that Sanjay Puri wanted to grab my property. I am not in control of my mental faculties fully today. I am totally incapacitated. I have been attending all the court hearings in the above suit. I am fully aware that Sanjay Puri has filed the aforesaid suit against me with respect to my property. I had signed the affidavit in evidence after fully understanding the contents and had even advised my counsel as to some additional points which were to be incorporated in the affidavit.”

29. Cross examined on what he did with Rs. 50,000/- received by him from the plaintiff on 16.06.2003, defendant stated:—

“I had not kept the amount of Rs. 50,000/- given by Sanjay Puri, however, Sanjay Puri himself had sent one of the person who had accompanied him to Syndicate Bank for depositing the amount since it was already 03.00 PM and the Banks must have been closed by that time, when that person returned Sanjay Puri and his associates had dragged me and pushed me inside a car standing in front of my house and I was taken forcibly to Syndicate Bank by them. At the Bank Sanjay Puri had collected one deposit slip and I was required to fill up the slip. Some of the portion of the slip was filled by me. Since Sanjay Puri was aware of all my Accounts number, I did not give any account number to him and he was aware of my account number and perhaps he or some other persons had filled the account number. I did not get down from the car and remained present in the car through out this time and as such there was no occasion for me to raise any hue and cry.”

30. When suggested that he i.e defendant voluntarily signed Ex. PW-1/1, he replied that when he signed Ex. PW-1/1, he was surrounded by plaintiff and his associates who pressurised him to sign the document. When questioned why he took Rs. 50,000/-, defendant replied:—

“This amount of Rs. 50,000/- was given to me by Sanjay Puri saying that he want to serve me and do seva like a son while living in the hpuse and if after two three months, I am satisfied with his seva he will give more money to me as I demand.”

31. Questioned about Deepak Jana, defendant stated:—

“When this document was signed by me my servant Deepak Jana was present there and he also served tea etc. to Sanjay Puri and his associates. Deepak Jana had been serving with me for around 5 years. I had full faith on my servant. Since Sanjay Puri was my sympathizer I signed the document Ex. P-2 on his faith and did not try to inquire about its contents through my servant.”

(Note: Ex. PW-1/1 has also been exhibited as Ex. P-2)

32. Questioned, how was he saying that plaintiff wanted to grab his i.e defendant's property, defendant stated:—

“When in the evening I got to read the document Ex. P-2 through one of my acquaintance I came to know that vide this document I was shown to have sold the property to Sanjay Puri and the possession was to be handed over after 3 months. Volunteered: I had never intended to sell this property. Sanjay Puri had given me a copy of Ex. P-2 which was read over to me.”

33. Defendant examined Sh. G.S Bhatia as DW-2. He proved certificate of Vasant Vihar, Welfare Association as PW-1/3 which certified advertisements published at instance of the plaintiff in the directions published by the association in the year, 2001 and 2003. He stated that plaintiff induced defendant and plaintiff was in a position to dominate the will of the defendant. However, in cross examination, he stated that he had no personal knowledge about the transaction between the parties and their dispute.

34. DW-3, Sh. K.P Gupta deposed that plaintiff treated defendant as his father and therefore was in a position to dominate defendant's will. However, in cross examination he said that since talks did not take place in his presence, he had no personal knowledge about the transaction. He also stated that he did not remember being present in defendants house on 16/06/2003.

35. DW-5, Dr. Rajesh Aggarwal stated that he had issued a medical certificate Ex. DW-1/26 regarding the defendant. But stated that he had issued Ex DW-1/26 based on record of various hospitals. In cross examination in stated:—

“It is correct that Ex. DW-1/26 which has been issued by me does not bear any date. The certificate might have been issued around 2-3 years back. It must be atleast two years back. I have examined the other certificates as issued by other hospitals and placed on record. Dr. Rajiv Mukherjee is the Eye Surgeon at our clinic and who had performed the eye surgery upon Sh. Radhey Lal. I am a general Surgeon and not a eye Surgeon. I was first introduced to Sh. Radhey Lal in the year 1994 when he underwent surgery for prostrate problem at Modi Hospital. Thereafter, whenever Sh. Radhey Lal has any medical problem related to Prostrate/urinary problem or chest infections and mostly related to these problems he consults me. Sh. Radhey Lal is a CGHS beneficiary and he consults the CGHS doctors for diabetes and hypertension. Volunteered: He has consulted me a number of times for his neurological problems for which I even got a CT Scan (Held) conducted. I do not remember when exactly the same was got done. The same was roughly got done 3-4 years back. So far as I remember as per the report he was suffering from Lacunar infarct and a thin sub dural haematoma with age related cerebral atrophy. Volunteered: He had also undergone neurological examination by Dr. Sanjay Chaudhary at Batra Hospital. I am not aware as to why the certificate Ex. DW1/26 was obtained from me. I was told that for his medical problems he requires the certificate and thereafter the same was issued by me. I own Health Point Hospital but the eye surgery of Shri Radhey Lal was got done at Dr. Mukherjee's Eye Clinic i.e Dr. Mukherjee Eye Clinic. The said doctor Mukherjee is the correct person to know about the status of the vision of Sh. Radhey Lal. Volunteered: The surgery (phaco) was performed t Dr. Mukherjee's clinic since the said facility was not available at our clinic. It is correct that I am not personally attending to Sh. Radhey Lal and his medical treatment is being got done by other doctors under my supervision. Volunteered: Since he is a CGHS beneficiary and he gets all his medicines from CGHS dispensary he has to attend the CGHS OPD every month and whenever he has some minor ailments he consults me and I prescribe him medicines for those ailments. It is correct that the entire medical record of Sh. Radhey Lal, if maintained, would be available at CGHS dispensary and RML Hospital. We do not have in our possession any medical record pertaining to Sh. Radhey Lal.”

36. Deepak Jana deposed as DW-4. His examination-in-chief is by way of affidavit He stated:—

“2. That, the deponent is the servant of Sh. Radhey Lal defendant No. 1 in the above suit and has been residing in the servant quarter of F-5/7 Vasant Vihar, New Delhi-110057 along with his family.

3. That the defendant No. 1 is totally dependent upon the deponent on account of age illness and bodily and mental distress.

4. That the plaintiff Sh. Sanjay Puri in the above suit has been frequently visiting to inquire about the welfare of defendant No. 1 Shri Radhey Lal.

5. That the plaintiff developed relations with the defendant No. 1 to gain unfair advantage of his experience in the Govt. Servants Co-operative Housing Society Vasant Vihar New Delhi and the relations are still subsisting between the plaintiff and defendant No. 1.

6. That plaintiff was in a position to dominate the will of defendant No. 1 and got an alleged receipt 16.6.2003 exhibited as Ex. DW1/1 and obtained signatures of defendant No. 1 fraudulently whose mental capacity has been affected by reason of age, illness and bodily distress.

7. That the deponent submits again that plaintiff tried to involve the deponent as is apparent from the alleged receipt (Ex. UW1/1) to gain unfair advantage over defendant No. 1.”

37. In cross-examination, Deepak Jana stated:—

“On 16.06.2003 the defendant No. 1 Sh. Radhey Lal has signed the Ex. PW1/1, the receipt dated 16.06.2003 in favour of the plaintiff. The factum of the signing was informed to me by the defendant No. 1 himself. I had even witnessed and appended my signatures on the said receipt dated 16.06.2003 Sh. Sanjay Puri had requested me to append the signatures on the said receipt dated 16.06.2003, The signatures were thereafter got cut by the plaintiff later. After 2 or 3 days after 16.06.2003 when the defendant No. 1 saw that, the receipt dated 16.06.2003 had been signed by me he asked the plaintiff to thereafter cut his signatures on the said receipt which was duly done by the plaintiff in the presence of the defendant No. 1. The defendant No. 1 Shri Radhey Lal only requested the plaintiff to cut only my signatures on the receipt Ex. PW1/1 and not his own signatures and which was duly done by the plaintiff. However, the defendant No. 1 did not insist on getting his own signatures cut/omitted from the receipt dated 16.06.2003 For this purpose Sh. Sanjay Puri had come to the house of the defendant No. 1 Sh. Radhey Lal after 2 or 3 days after the signing of the receipt dated 16.06.2003 I am deposing out of my free will.”

38. Issue No. 2 has 2 limbs. The first is whether there was coercion upon the defendant when his signatures were obtained on Ex. PW-1/1 and the second limb is whether there was undue influence exercised by the plaintiff when defendant signed Ex. PW-1/1.

39. Section 15 and 16 of the Indian Contract Act 1872 define coercion and undue influence respectively. They read as under:—

“15. ‘Coercion’ defined—‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.”

16. ‘Undue influence’ defined—(1) A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the forgoing principle, a person is deemed to be in a position to dominate the will of another-

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.

Nothing in the sub-section shall affect the provisions of Section 111 of the Indian Evidence Act, 1872 (1 of 1872).”

40. On the issue of coercion no plea has been raised in the written statement. I do not find any pleadings in the written statement showing in what manner coercion was given effect to, if at all. Coercion as defined under Section 15 of the Indian Contract Act 1872 and as generally understood in law is by threatening the victims person or his property. The statements made by the defendant during his evidence that plaintiff and his henchmen surrounded him when he signed Ex. PW-1/1 is not only an improvement on the pleadings in the written statement but is falsified from the fact that the defendant himself stated that DW-4, Deepak Jana, his servant was present in the house and he had full faith in his servant, but Deepak Jana has not stated that the plaintiff had come with his sympathizers and they had surrounded the defendant when defendant signed Ex. PW-1/1. Further, when plaintiff and R.C Nair stepped in the witness box, no suggestions were put to them that sympathizers of the plaintiff had surrounded the defendant when the defendant signed Ex. PW-1/1. Further, as noted above, while being cross-examined defendant stated:—

“Since Sanjay Puri was my sympathizer I signed the document Ex. P-2 on his faith and did not try to inquire about its contents through my servant.”

41. Language of Section 16 of the Indian Contract Act 1872 shows that existence of a subsisting relationship where one party is in a position to dominate over the will of the other has to be established before establishing that an unfair advantage has been obtained by a party. The common law principles relating to duress, undue influence, coercion etc. rest on the principle of absence of consent. A person subjected to duress, coercion or undue influence is said to have had his will overborne so that he was incapable of making a free choice. But as law developed it was recognised that where the will is not overborne but is deflected it would be sufficient to hold lack of free will. [See Lynch v. DPP of Northern Ireland, (1975) AC 653].

42. Undue influence is a question of fact. Facts alleged and attempted to be proved by the defendant to show undue influence are that the plaintiff had been in contact with him i.e the defendant since long because he i.e defendant was the president of the Vasant Vihar Association and the plaintiff, in course of his business, was interacting with him in relation with his business and had got published advertisements in the directories published by the residents' welfare association. Defendant has pleaded that during course of said casual association, plaintiff started treating him as a father figure and evidenced a desire to serve the defendant.

43. Defendant has led no evidence, in fact has not even stated in his deposition that the plaintiff used to look after him or performed any duty which a son normally performs for his father. Admittedly, defendant is an aged person. One expects a son to look after the daily affairs of his aged father like depositing water, electricity and telephone bills, arranging visits to a doctor etc. The vague statements of the defendant and DW-2 and DW-3 that the plaintiff was in a position to dominate the will of the defendant are too tenuous to establish undue influence.

44. Testimony of the defendant shows contradictory statements made. On the one hand he stated that he was not in control of his-mental faculties but immediately contradicted himself when he admitted that he had attended all court hearings and had signed the affidavit by way of evidence after fully understanding the contents. In fact, defendant has boasted ‘and had even advised my counsel as to some additional points which were to be incorporated in my affidavit’. It is further relevant to note that on the one hand defendant stated in his evidence that associates of plaintiff surrounded him and pressurised him to sign the agreement to sell (a plea which has been disbelieved by me) and on the other hand he deposed that there was undue influence. The two pleas cannot co-exist in the teeth of the manner in which defendant has attempted to prove both the pleas.

45. To sustain the plea of coercion defendant deposed that after he had signed the agreement to sell, plaintiff and his associates dragged him and pushed him inside a car standing in front of his house and forcibly took him to syndicate bank to deposit the cash in his account. Some portions of the deposit slip were filled by him. Account number was filled up by somebody else. When questioned why he did not raise a hue and cry he stated that since he was in the car, there was no occasion for him to raise a hue and cry. Defendant has stated in his evidence that since he had full faith in DW-4 and since plaintiff was his sympathizer he signed the agreement to sell on his faith and did not inquire about its contents through his servant. When questioned why he received Rs. 50,000/-, answer given by the defendant is that plaintiff wanted to serve him.

46. Testimony of Deepak Jana who was examined as DW-4 shows that defendant voluntarily signed Ex. PW-1/1 and he had witnessed the same at the request of the plaintiff. His statement in cross examination that two or three days after 16.6.2003 defendant desire that the plaintiff should cut out his signatures on Ex. PW-1/1 whereupon the same were cut shows that the plaintiff had visited the defendant when summoned by the defendant and had even agreed to score off the signatures of DW-4 on the receipt. This shows and establishes that the defendant developed second thoughts two or three days and lured the plaintiff into scoring off the signatures of DW-4 as a witness on the receipt to create some evidence in his favour.

47. On the issue of mental and physical health of the defendant, suffice would it be to note that DW-5 admittedly issued the certificate on the basis of medical record pertaining to the defendant stated to have been seen by him and on some ailment for which defendant was treated by DW-5. The evidence on record does not establish such weak mental health that the defendant was not aware of what he was doing nor does it establish such weak mind that would be influenced by a very weak external pressure.

48. I decide issue No. 2 in favour of the plaintiff and against the defendant. I hold that defendant voluntarily signed on Ex. PW-1/1. There was neither duress nor undue influence on him when he executed the document.

49. What relief must follow? Logically, plaintiff must succeed for the reason in relation to immovable property specific performance is the rule and non grant of decree for specific performance an exception. But I have reasons to decline specific performance.

50. As observed in the report published as Sardar Singh v. Krishna Devi, (1994) 4 SCC 18 since Section 20 of the Specific Relief Act 1963 provides that the jurisdiction to decree specific performance being discretionary the Court is not bound to grant such relief merely because it is lawful to do so. This view was reiterated in the decision reported as K. Narendra v. Riviera Apartments (P) Ltd.., (1999) 5 SCC 77 and Nirmala Anand v. Advent Corpn. Pvt. Ltd., (2002) 5 SCC 481.

51. The plaintiff is a speculator in properties. He buys and sells properties. The plaintiff was not buying the property for his residence. The defendant is an aged person. He is physically incapacitated. He moves about in a wheelchair. Notwithstanding that he executed Ex. PW1/1 out of his volition but evidenced by his returning Rs. 50,000/- within 10 days of the agreement shows that the defendant realised that he had committed a folly by agreeing to sell the only roof over his head. By then, prices of property had hardly risen. In fact within 10 days one would expect to be nil price rise. These factors i.e plaintiff being a speculator in properties and the old age and infirm health of the defendant, in my opinion create special equities and circumstances in favour of the defendant to absolve him the obligation to sell the suit property. Plaintiff can be recompensed with damages. In the decision reported as (1995) 5 SCC 115 N.P Thirugnanam v. Dr. R. Jagan Mohan Rao it was noted that the fact that plaintiff was dabbling in real estate transaction was a relevant consideration while deciding to grant or refuse specific performance.

52. No evidence is on record to show price rise. As noted above, within 10 days, defendant returned Rs. 50,000/-. I feel that plaintiff can be recompensed with damages in sum of Rs. 1,00,000/-.

53. Deciding relief I hold that the plaintiff would be entitled to a sum of Rs. 1,00,000/- (Rupees One lakh only) as damages for breach of contract. Besides, defendant would be liable to pay costs to the plaintiff which would include entire amount spent by the plaintiff towards court fee and counsel fee in sum of Rs. 10,000/-.

54. Suit stands decreed as per para 53 above.

55. Since the draft in sum of Rs. 50,000/- drawn on Syndicate Bank in favour of the plaintiff (original) is lying in the record being Ex. PW1/3 Registry is directed to hand over the original draft to the plaintiff. I direct Syndicate Bank, Vasant Vihar, New Delhi to revalidate the draft and when presented for encashment by the plaintiff to pay the sum of Rs. 50,000/- to the plaintiff.