RSA No. 1694 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1694 of 2011 (O&M) Date of Decision: 20.4.2011. Madan Mohan Malik .......Appellant Vs. Om Parkash ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. A.P.Bhandari, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for specific performance on the basis of agreement to sell dated 16.12.2005 with permanent injunction. The case of the plaintiff in brief was that the defendant had agreed to sell the house in question to the plaintiff for a sum of ` 5,00,000/- and had executed an agreement to sell in favour of the plaintiff on 16.12.2005, after receipt of ` 4,00,000/- towards earnest money. The sale deed was to be executed on or before 29.12.2005. The plaintiff remained present in the office of the Joint Sub Registrar on the stipulated date but the defendant failed to appear to perform his part of the contract. The plaintiff was still ready and willing to perform his part of the contract. RSA No. 1694 of 2011 (O&M) -2- Defendant, in his written statement, denied the contentions in the plaint. It was averred that the agreement to sell in question was a result of fraud. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant entered into a valid agreement dated 16.12.2005 to sell his residential house situated in village Siwan and plaintiff is entitled to specific performance of the same on payment of balance sale consideration? OPP 2. Whether the plaintiff has no locus-standi for filing the present suit? OPD 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 3.12.2009, decreed the suit of the plaintiff for recovery of ` 4,00,000/- along with interest @ 12% per annum. Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was dismissed by the District Judge vide judgment and decree dated 6.1.2011. Hence, the present appeal by the defendant. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. In the present case, plaintiff had filed suit for specific RSA No. 1694 of 2011 (O&M) -3- performance of agreement to sell in question. In order to prove the due execution of the agreement to sell in question, plaintiff examined attesting witnesses Satpal and Balbir Singh as PW-2 and PW-5, respectively. Plaintiff examined Deed Writer Mehardeen as PW-4. Plaintiff also examined Shamsher Singh Malik, Hand Writing and Finger Prints Expert as PW-6. The defendant took up the plea that he had taken a loan of ` 2,50,000/- from the plaintiff on 16.11.2004. The dispute between the parties qua the loan amount was also referred to the arbitrator. The plaintiff had filed a suit for recovery of ` 2,85,000/-. It was further averred that ` 4,00,000/- had not been paid by the plaintiff to the defendant towards earnest money. Both the courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the agreement to sell in question was duly executed by the defendant in favour of the plaintiff. However, the said agreement was merely a loan transaction. The witnesses, examined by the plaintiff, have duly established the due execution of the agreement to sell in question. However, from the evidence led on record, the courts below held that the agreement to sell in question was merely executed by way of security qua the loan transaction. Plaintiff has not filed any appeal qua denial of relief of specific performance to him. In these circumstances, since the execution of the agreement to sell in question was duly proved by the plaintiff by leading his evidence, the courts below rightly held that the plaintiff was entitled to recover the earnest money paid RSA No. 1694 of 2011 (O&M) -4- by him to the defendant at the time of execution of the agreement to sell in question. The agreement to sell in question is duly signed by the defendant. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE April 20, 2011 Gurpreet