Regular Second Appeal No. 2393 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2393 of 2010 Date of decision : July 09, 2010 Bhupinder Singh ....Appellant versus Hari Krishan Sachdeva ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. KS Banyana, Advocate, for the appellant L.N. Mittal, J. (Oral) This is second appeal by defendant Bhupinder Singh. Respondent Hari Krishan Sachdeva filed suit against appellant for possession of suit land by specific performance of agreement to sell dated 18.5.1999 and for permanent injunction as a consequential relief. The plaintiff alleged that the defendant and one Vineet Kumar agreed to sell 15 kanals 10 marlas land being 310/446 share of 23 kanals 6 marlas land for Rs 1,20,000/- vide agreement dated 18.5.1999 and received Rs 1 lac as earnest money from the plaintiff. Ultimately Vineet Kumar executed sale deed of his half share measuring 07 kanals 15 marlas land in favour of the plaintiff as per agreement but the defendant failed to execute sale deed of 7 kanals 15 marlas of his share in favour of plaintiff as per agreement although plaintiff always remained ready and willing to perform his part of Regular Second Appeal No. 2393 of 2010 -2- the contract. The defendant's case is that the plaintiff, defendant and Vineet Kumar constituted partnership firm in the name and style of M/s Shiv Stone Crushers. The said firm had taken loan from Punjab National Bank. Vide agreement dated 17.5.1999 defendant and Vineet Kumar relinquished their share in the firm in favour of the plaintiff subject to the condition that the plaintiff shall get released documents of immovable property of the guarantors of bank loan from the bank upto 15.10.1999 either by repayment of loan amount or by furnishing some other guarantors to the bank. Both the agreements i.e. agreement dated 17.5.1999 regarding partnership firm and the agreement to sell dated 18.5.1999 were contemporary and had to be complied with simultaneously. The plaintiff however failed to get released the documents of the defendant's property from the bank till 15.10.1999 as stipulated in agreement dated 17.5.1999 and therefore, the plaintiff himself committed breach of the impugned agreement to sell. Learned Civil Judge (Senior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 1.4.2009 accepted the defendant's version and dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been partly allowed by learned District Judge, Yamuna Nagar vide judgment and decree dated 20.1.2010 and thereby plaintiff's suit has been decreed for recovery of double the amount of earnest money of Rs 50,000/- along with interest @ 9% per annum from the date of deposit till recovery. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Regular Second Appeal No. 2393 of 2010 -3- Learned counsel for the appellant vehemently contended that admittedly pursuant to agreement dated 17.5.1999 the plaintiff had to get released title deed of immovable property of the defendant from the bank till 15.10.1999 but the defendant got his title deed from the bank on 10.4.2000 and thus, the plaintiff himself committed breach of agreement dated 17.5.1999 and is, therefore, not entitled to specific performance of agreement to sell dated 18.5.1999. The contention does not help the appellant because this contention has already been accepted by the lower appellate court inasmuch as relief of specific performance of agreement to sell has been declined by the lower appellate court to the plaintiff precisely for this reason that sale deed of the property of defendant was released to him on 10.4.2000 instead of 15.10.1999. However, this contention would not entitle the defendant-appellant to retain the earnest money paid to him by the plaintiff under the agreement to sell dated 18.5.1999. The agreement to sell stipulated that in the event of default by the defendant, he would have to pay double the amount of earnest money to the plaintiff and relief to the same effect has been granted by the lower appellate court. In addition to the aforesaid it has to be noticed that bank official examined as PW3 has categorically stated that as per bank record brought by him loan amount of M/s Shiv Stone Crushers was cleared before 15.10.1999 and record relating to property deed deposited in the said account had been released. Admittedly, the title deed of property of father of Vineet Kumar which had also been deposited with the bank against loan granted to the firm was released and given by the bank on 15.10.1999 whereas title deed of property of the defendant was given to him on 10.4.2000. However, the fact remains that the title deed of property of Regular Second Appeal No. 2393 of 2010 -4- defendant also could be returned to him on 15.10.2009 as stipulated in agreement dated 17.5.1999 but it appears from the judgment of the lower appellate court that there was some communication gap as defendant was allegedly not intimated that he could take back his title deed from the bank and due to this communication gap there was delay in return of title deed to him. Learned counsel for the appellant contended that as per bank account statement Ex. D5, bank loan of the aforesaid firm was cleared on 28.9.2002. This contention does not help the appellant because the plaintiff was not debarred from taking any loan from the bank even pursuant to agreement dated 17.5.1999. On the other hand, the only condition was that title deed of the property of the defendant had to be got released from the bank on or before 15.10.1999. Categorical statement of bank official Amarjit Lal PW3 proved beyond doubt that bank loan stood cleared before 15.10.1999 and the defendant could take back the title deed of the property on 15.10.1999. If some loan was subsequently taken by the firm and was later on cleared on 28.9.2002 that would not help the defendant in any manner. Even if some amount was outstanding on 15.10.1999, it is immaterial because the title deed of the property of the defendant stood released by the bank before 15.10.1999 although actually it was taken by the defendant on 10.4.2000 due to communication gap. This fact is also clear from the own submission of learned counsel for the appellant because the title deed of the defendant was admittedly received by him on 10.4.2000 and therefore, even if the amount was cleared much later on 28.9.2002 it had no bearing on the question of release of title deed of the property of the defendant. For the reasons recorded herein above, I find no infirmity much Regular Second Appeal No. 2393 of 2010 -5- less illegality or perversity in the judgment of the lower appellate court so as to warrant interference at the instance of defendant. The instant appeal is without any merit and is accordingly dismissed. It is, however, made clear that any observation made herein above shall have no bearing on merits of the second appeal said to have been filed by plaintiff-respondent to seek relief of specific performance of the agreement. ( L.N. Mittal ) July 09, 2010 Judge 'dalbir'