Civil Revision No.1058 of 2011 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1058 of 2011 Date of decision: 15.9.2011 Jasbir Singh and another ...Petitioners Versus Gopal Garg ...Respondent CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. D.K.Khanna, Advocate for the petitioners. Mr. H.S.Saggu, Advocate for the respondents. AJAY KUMAR MITTAL, J. The defendants-petitioners having been restrained by the Trial Court as well as by the Appellate Court from alienating the property in dispute during the pendency of the suit have approached this Court seeking setting aside of orders dated 17.7.2010 passed by the Trial Court and 14.12.2010 passed by the Appellate Court. 2. Briefly the facts necessary for adjudication as narrated in the petition are that the respondent-plaintiff filed a suit for recovery of ` 32,15000/- (` 30,00,000/- as earnest money + ` 2,15,000/- as interest @ 12% per annum w.ef. 7.11.2008 to 12.6.2009 as per agreement to sell dated 7.11.2008) and for permanent injunction against the defendants- petitioners. Along with the suit, an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure read with Section 151 C.P.C. for grant of injunction had also been filed alleging that defendants agreed to sell the Civil Revision No.1058 of 2011 -2- **** land measuring 2 bighas 1 biswas 2 biswasies Pukhta comprised of Khewat No.46, Khatauni No.59, Khasra Nos. 367/160/2/1-11-6, 493/161/1/1/0-9-9 and to the extent of 1/8 share of land measuring 0 bigha 2 biswas, 17 biswasies pukhta, comprised of khewat No.130, Khatauni No.156, khasra No.363/159/0-2-17, total land measuring 2 bighas 1 biswa 2 biswasies pukhta (6166 square yards) situated in the revenue estate of village Kamomajra Kalan, Tehsil and District Sangrur @ 2500/- per sq. yards to the plaintiff and executed an agreement dated 7.11.2008 to this effect. Defendants-petitioners agreed to sell the aforesaid land by stating that the land in question abuts on the main Mehlan road and its front is 200 feet. Earnest money of ` 30 lacs was paid by the plaintiff to the defendants-petitioners in the presence of the witnesses and the remaining amount was to be paid at the time of execution and registration of the sale deed. The sale deed was to be executed upto 15.6.2009 and possession of the land was to be handed over at the time of execution of the sale deed. Respondent-plaintiff was always ready and willing to perform his part of contract but the defendants-petitioners failed to execute the sale deed in favour of the respondent-plaintiff as per agreement to sell dated 7.11.2008 on the ground that the front of the land abutting Mehlan road is not 200 feet but only 163 feet. Respondent-plaintiff through his counsel served a legal notice which was received by the defendants-petitioners who admitted the execution of agreement and receipt of ` 30 lacs as earnest money. It was asserted that defendants had never given any assurance to the plaintiff about the exact measurement of the land abutting Mehlan Road. Respondent-plaintiff again sent notice on 6.6.2009 requesting the defendants-petitioners to refund the amount of ` 30 lacs along with interest or to execute the sale deed of the land having front of Civil Revision No.1058 of 2011 -3- **** 200 feet but they neither refunded the amount nor executed the sale deed. 3. I have heard learned counsel for the parties. 4. Learned counsel for the petitioners submitted that the Courts below have erred in restraining the defendants-petitioners from alienating the suit property as the suit is only for recovery of ` 32,15000/- (` 30,00,000/- as earnest money + ` 2,15,000/- as interest) whereas the property is much more than the said value. It was further submitted that since 200 feet frontage of land abutting Mehlan road was not available, therefore, agreement to sell dated 7.11.2008 could be executed with the available frontage on the spot. According to the learned counsel, in such circumstances, the plaintiff was not willing to honour the agreement to sell dated 7.11.2008. 5. Opposing the prayer of the petitioners, learned counsel for the respondent-plaintiff submitted that the defendants-petitioners had failed to perform their part of the contract and earnest money of ` 30,00,000/- which was paid by the respondent-plaintiff on 7.11.2008 was neither being returned nor the agreement to sell dated 7.11.2008 was being honoured by the defendants-petitioners. He supported the orders passed by the Courts below. 6. After giving considerable thought to respective submissions of learned counsel for the parties, I do not find any merit in the contention raised by learned counsel for the defendants-petitioners. 7. The Trial Court while allowing the application of the respondent-plaintiff had noticed that agreement to sell dated 7.11.2008 and receipt of Rs.30,00,000/- by the defendants-petitioners had been accepted. Further, the plaintiff was ready and willing to perform his part of the contract. It was further noticed that though defendants-petitioners were Civil Revision No.1058 of 2011 -4- **** also ready to perform their part of the contract but the only dispute was relating to frontage of 200 feet abutting the Melhan Road. The relevant observations reads thus:- “In the case in hand, execution of agreement to sell dated 7.11.2008 is an admitted fact. It is also an admitted fact that respondents had received a sum of ` 30,00,000/- from the applicant as earnest money on 7.11.2008. Applicant is ready to perform his part of the contract and similarly the respondents are also ready to perform their part of contract. The only hitch between the parties to the suit is with regard to front of 200 feet abutting Mehlan road. The question with regard to front of 200 feet abutting the Mehlan road and also whether respondents agreed to give 200 feet to the applicant could be decided only on receipt of evidence by both the parties. But at this stage, huge amount of ` 30 lacs is involved which applicant had paid to the respondents. In case, respondents proceed to alienate the property in question in favour of any other person certainly applicant would be put to great hardship in realizing the decretal amount if suit is decreed in his favour. Therefore, to avoid multiplicity of litigation I restrain the respondents from alienating the property in dispute till the disposal of the main suit. The application stands disposed of accordingly.” 8. The aforesaid finding was affirmed by the Appellate Court as under :- “6. On hearing the above submissions of the counsel for the appellants, contents of the agreement to sell dated 7.11.2008 Civil Revision No.1058 of 2011 -5- **** shows that the present appellants agreed to sell the land measuring 2 bighas 1 biswas 2 biswasies to the present respondent Gopal Garg, out of the Khasra numbers as detailed in the agreement at the rate of Rs.2500/- per square yard. At the same time the agreement to sell shows that earnest money of Rs.30 lacs was paid to the present appellants. At the same time, it stands mentioned that present appellants agreed to sell 200 feet front abutting the Mehlan Road. This agreement to sell has been duly signed by the present appellants. Thus the appellants cannot themselves wriggle out that they never got mentioned in the agreement to sell that they hever agreed to sell 200 feet front of the land abutting Mehlan Road to the present respondent. Further the fact that whether the present appellants are rustic and illiterate persons and they never agreed to sell 200 feet front abutting the land Mehlan Road, this Court is of the view that the same can be appreciated by the learned lower Court after recording the evidence. Further as argued by the counsel for the appellants that only some part of the suit land should have been restrained from alienating by the learned lower Court and other remaining part should have been released as the suit land is of more value, this Court is of the view that there was no application moved by the present respondent regarding the attachment of the property. Rather the learned lower Court has simply passed an order in the application under order 39 rules 1 and 2 read with section 151 C.P.C. and the present appellants were restrained from alienating the suit property till Civil Revision No.1058 of 2011 -6- **** the disposal of the main suit. 9. Learned counsel for the petitioners did not dispute the execution of the agreement dated 7.11.2008 and also the receipt of money of ` 30 lacs from the respondent-plaintiff. On query put to the learned counsel for the petitioners that if the defendants-petitioners are not able to give the land as per agreement to sell dated 7.11.2008 with front of 200 feet abutting Mehlan Road in term thereof, the amount received as earnest money by the defendants, ought to be returned to the plaintiff, learned counsel for the petitioners-defendants stated that they are not ready to return the money. 10. In view of above, I do not find any perversity or illegality in the approach of the Courts below in granting interim injunction in favour of the plaintiff-respondent. The revision petition is dismissed. The Trial Court is directed to expedite the trial of the suit. However, nothing observed herein shall be taken as expression of opinion on the merits of the controversy. September 15, 2011 (Ajay Kumar Mittal) Pka Judge