Regular Second Appeal No. 3181 of 2010 And 1 Regular Second Appeal No. 3153 of 2010 In the High Court of Punjab and Haryana, at Chandigarh. 1. Regular Second Appeal No. 3181 of 2010 Jagdev Singh and Others …Appellants Versus Darshan Kumar and Others …Respondents AND 2. Regular Second Appeal No. 3153 of 2010 Darshan Kumar and Others …Appellants Versus Jagdev Singh and Others …Respondents Date of Decision: 5.8.2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. S.C. Chhabra, Advocate for the appellants (In Regular Second Appeal No. 3181 of 2010) and for the respondents (In Regular Second Appeal No. 3153 of 2010). Mr. Navdeep Chhabra, Advocate for respondent No.1 (In Regular Second Appeal No. 3181 of 2010) and for the appellants (In Regular Second Appeal No. 3153 of 2010). Kanwaljit Singh Ahluwalia, J. Civil Misc. 9337-C of 2010 In R.S.A. No.3181 of 2010 Civil Misc. Application is allowed. Exemption is granted from fling of the certified copy of judgment dated 30.9.2008, passed by the Court of Civil Judge (Senior Division), Mansa. Regular Second Appeal No. 3181 of 2010 And 2 Regular Second Appeal No. 3153 of 2010 Civil Misc. No. 9289-C of 2010 In R.S.A. No. 3153 of 2010 For the reasons stated in the application, the same is allowed. Delay of 60 days in re-filing of the appeal is condoned. Regular Second Appeals No. 3181 and 3153 of 2010 By this common judgment, Regular Second Appeal No. 3181 of 2010, preferred by defendants to the suit and Regular Second Appeal No. 3153 of 2010, preferred by plaintiffs to the suit shall be decided together as they are aggrieved against the judgment & decree dated 30.9.2008, passed by the Court of Civil Judge (Senior Division), Mansa and the judgment & decree dated 10.11.2009, passed by the Court of District Judge, Mansa. Darshan Kumar son of Tej Ram and Jiwan Kumar son of Roshan Lal had instituted a suit for recovery of ` 5,20,000 which included ` 2,60,000, paid by them as earnest money and ` 2,60,000 as damages for failure on the part of the defendants to execute the sale deed in pursuance of agreement to sell dated 7.11.1993. It was pleaded in the suit that Jagdev Singh son of Kundha Singh, defendant No.1 and Mukhtiar Singh son of Sangha Singh, defendant No.2, had executed an agreement to sell dated 7.11.1993 Ex.P1 for sale of 3 bighas of abadi land, detail and description whereof has been given in paragraph No.1 of the plaint. The agreement to sell Ex.P1, as per the plaint, contained the following terms & conditions:- 1) That defendants No.1 and 2 are owners in possession of the suit land. Regular Second Appeal No. 3181 of 2010 And 3 Regular Second Appeal No. 3153 of 2010 2) That defendants No.1 and 2 had also agreed to sell the land at the rate of ` 1,95,000 per biswa. 3) That defendants No.1 and 2, on 7.11.1993, in pursuance of agreement to sell, in the presence of witnesses, had received ` 2,60,000 in cash as earnest money. 4) That defendants No.1 and 2 had agreed to obtain consent of defendants No.3 to 6, who were owners of the suit property. Furthermore, the defendants No.1 and 2 had agreed to get a sale deed registered on or before 1.5.1994. It was further agreed that in case, before the stipulated date i.e. 1.5.1994, the sale deed was not got registered, then the defendants would return the earnest money of ` 2,60,000 along with the damages of similar amount and in case the purchaser failed to get the sale deed executed then the amount of earnest money shall be forfeited. It was further averred in the suit that the plaintiffs have been ready and willing to perform their part of the agreement to sell Ex.P1, however, they had extended the date for execution of the sale deed upto 1.7.1994 by appending a writing on the back of agreement to sell dated 7.11.1993. As per endorsement of extension of the date Ex.P2, the plaintiffs were ready and willing to perform their part and in this regard they had issued a notice dated 20.6.1994 to defendants No.1 and 2 calling upon them to appear in the office of the Sub Registrar, Mansa, along with the other defendants for execution of the agreement of sale. But on 1.7.1994, none of the Regular Second Appeal No. 3181 of 2010 And 4 Regular Second Appeal No. 3153 of 2010 defendants came present there to perform their part of the agreement. The plaintiffs kept waiting for the defendants and thereafter they submitted an application on 1.7.1994 to reflect their presence in the office of the Sub Registrar. Therefore, it was prayed that due to failure on the part of the defendants to perform their part of agreement to sell dated 7.11.1993 and the agreement to extend the date upto 7.7.1994, they were liable to refund a sum of ` 2,60,000, received from the plaintiffs as earnest money along with a sum of ` 2,60,000 as damages along with interest. It was further pleaded that a notice was issued on 4.7.1994 calling upon the defendants to pay the above said amounts which had become due to the plaintiffs. Upon notice, the defendants had caused appearance and filed written statements, wherein they stated that the suit is liable to be dismissed as the plaintiffs have not filed a suit for specific performance of the agreement to sell dated 7.11.1993. Furthermore, it was averred that material alterations and additions were made in the agreement to sell. Therefore, the suit is liable to be dismissed. The plaintiffs, by their own act and conduct and acquiescence are estopped for grant of the relief sought. The defendants were always ready and willing to perform their part of the agreement to sell. It was the plaintiffs, who had not come forward to get the sale deed executed. Therefore, the suit is liable to be dismissed. Further, the plaintiffs had neither sent a draft of the proposed sale deed nor had given any notice to the defendants. Furthermore, the suit contained vague averments and suffers from misjoinder and non-joinder of the necessary parties and the plaintiffs Regular Second Appeal No. 3181 of 2010 And 5 Regular Second Appeal No. 3153 of 2010 have not approached the Court with clean hands. These being the preliminary objections, raised to the suit, on merits, it was admitted that with the consent of co-sharers an agreement to sell dated 7.11.1993 was executed. The defendants, on 1.5.1994, were present in the office of the Sub Registrar, Mansa, to perform their part of the agreement to execute the sale deed but the plaintiffs never arrived there as they had raised objections that specific khasra number of the land has not been mentioned in the agreement. The defendants, to allay apprehension of the plaintiffs, had stated that the land, which is mentioned in the agreement to sell, could be got demarcated and the demarcation would be done on 7.5.1994 and sale deed was to be executed upto 7.7.1994. Thus, defendants No.1 and 2 agreed to the execution of sale deed but lateron by committing fraud on 1.7.1994 a writing was prepared after the signatures of the defendants were obtained on 1.7.1994. It was stated that after 7.11.1993, prices of the land at Mansa have fallen, therefore, the plaintiffs themselves have committed breach of agreement. In paragraph No.3 of the written statement, it was specifically stated that the defendants, on the date of filing of the written statement, were ready and willing to perform their part. Thereafter, the plaintiffs filed replication denying the averments made in the written statement and reiterating that of the plaint. After completion of the pleadings, the trial Court had formulated the following issues:- “1. Whether the defendants did not perform their part of contract of the agreement dated 7.11.1993? OPP Regular Second Appeal No. 3181 of 2010 And 6 Regular Second Appeal No. 3153 of 2010 2. If issue No.1 is proved, whether the plaintiffs are entitled for recovery of ` 5,20,000 including the penal amount? 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD 5. Whether the defendants are ready and willing to execute the sale deed? OPD 6. Whether the plaintiffs have not come to the Court with clean hands? OPD 7. Relief.” The suit filed by the plaintiffs was dismissed under Order 17 Rule 3 CPC vide judgment & decree dated 13.8.1997. On appeal, the matter was remanded back to the trial Court vide order dated 18.7.2007. The trial Court took into consideration the evidence of Darshan Kumar, plaintiff No.1, who appeared as PW.1. He proved notice Ex.P3, postal receipts Ex.P4 and Ex.P5, an application filed before the Sub Registrar as Ex.P6 and subsequent notice Ex.P7 whereby the defendants were called upon to pay double the amount of earnest money. PW.2 Raghu Nath Sahai, being the attesting witness of the endorsement regarding extension of time, proved Ex.P2 written on the back of the agreement. Sushil Kumar, Reader in the Court of Sub Divisional Magistrate, Mansa, appeared as PW.3. He identified the signatures of Jatinder Singh, Regular Second Appeal No. 3181 of 2010 And 7 Regular Second Appeal No. 3153 of 2010 Tehsildar-cum-Sub Registrar, Mansa, on application dated 4.7.1994 Ex.DA and dated 7.7.1994 Ex.DB and on the affidavit sworn in by Jagdev Singh, defendant No.1, on Ex.DC and Ex.DD. The Court also considered the evidence of Vikram Raj Singh Chauhan, Handwriting and Fingerprints Expert, who had appeared as PW.4. Jagdev Singh, defendant No.1, had appeared as DW.2. He deposed that the defendants were ready and willing to execute the sale deed in favour of the plaintiffs. DW.1 Rachhpal, retired Kanungo, stated that he was posted as a Field Kanungo at Mansa. He had demarcated the land at the request of Jagdev Singh. He proved the certified copy of his report Ex.D1. Bachittar Singh Sidhu, Advocate, appeared as DW.3, who, at the instance of the defendant, had issued notice to the plaintiffs. He proved a copy of notice Ex.D2. The defendants also examined Harbaksh Singh Mander, Handwriting and Fingerprints Expert, as DW.5. The trial Court, after taking into consideration the pleadings and the evidence led by the parties, has held that the execution of agreement to sell Ex.P1, its contents and terms & conditions are admitted by the parties., The Court took notice of the contention of the defendants that in the extension words “on 01.07.1994” has been forged and added lateron. After discussing the evidence at threadbare, the trial Court held as under:- “20...The sole plea of the defendants is that the date for execution of the sale deed was upto 07.05.1994, in view of the interpretation of Ex.P2, but this is not supported by any convincing evidence. The Regular Second Appeal No. 3181 of 2010 And 8 Regular Second Appeal No. 3153 of 2010 extension clearly interprets two months time was granted and possession was to be delivered by 07.05.1994...” XXX XXX XXX XXX XXX XX “...The parties with their mutual consent had extended the time w.e.f. 1.5.1994 vide extension Ex.P2, which shows that the time was not the material term of agreement of the sale...” The Court further held that endorsement Ex.P2 regarding extension of time noticed on the back of agreement to sell Ex.P1 in no way entitled the plaintiffs to invoke the penal clause unilaterally. Therefore, the plaintiffs are only entitled to payment of earnest money i.e. ` 2,60,000 along with the interest at the rate of 6% per annum as per the provisions of Section 34 CPC. Thus, issues No.1 and 2 were decided against the defendants and in favour of the plaintiffs. The suit of the plaintiff was partly decreed to the extent of refund of earnest money along with the interest at the rate of 6% per annum from the date of execution of agreement to sell dated 7.11.1993 till its realization. Aggrieved against the same, the plaintiffs and the defendants have filed separate appeals. The appeals were decided by the lower Appellate Court vide common judgment, on 10.11.2009. The lower Appellate Court upheld the findings recorded by the trial Court. Aggrieved against the judgments & decrees of both the Courts below, the plaintiffs and the defendants to the suit have filed the present appeals. Regular Second Appeal No. 3181 of 2010 And 9 Regular Second Appeal No. 3153 of 2010 In Regular Second Appeal No. 3181 of 2010, the defendants have prayed that they are not liable to make payment of earnest money, received by them as there was breach of contract on the part of the plaintiffs, whereas in Regular Second Appeal No. 3153 of 2010, the plaintiffs have prayed that along with earnest money of ` 2,60,000, amount of damages to the tune of ` 2,60,000, in all ` 5,20,000 with interest at the rate of 12% per annum should have been ordered to be paid to the plaintiffs by both the Courts below. I have heard Mr. S.C. Chhabra, Advocate, appearing for the appellants/defendants and Mr. Navdeep Chhabra, Advocate, appearing for respondent No.1-Darshan Kumar. Both of them have pressed their respective claims made in the appeals filed by them. Learned counsel for the appellants/defendants has submitted that the very fact that the plaintiffs have not sought for specific performance of the contract should be construed against them to hold that the plaintiffs themselves were not ready and willing to perform their part of contract. It is urged that conduct of the plaintiffs lent credence to the averments made in the written statement that since prices of the land at Mansa had fallen, the plaintiffs had not come forward to perform their part of the contract. It is stated that the defendants, at the instance of the plaintiffs, also got the land demarcated and they themselves had appeared before the Sub Registrar Mansa. All these arguments, advanced by learned counsel for the appellants/defendants, will pale into insignificance because of the specific reasoning given by both the Courts below that it was incumbent upon the defendants to appear in the Regular Second Appeal No. 3181 of 2010 And 10 Regular Second Appeal No. 3153 of 2010 office of the Sub Registrar, Mansa, on 1.7.1994. A perusal of endorsement Ex.P2 reveals that possession of the land would be given on 7.5.1994 and the sale deed was to be got executed within two months commencing from 1.5.1994. Even for the sake of arguments, if the contention of the defendants that the words “yani ke 1.7.1994 Nun” were added lateron and constituted forgery is taken into consideration, then also a period of two months would come to an end on 1.7.1994. Thus, there was no reason for the defendants to appear before the Sub Registrar, Mansa, on 28.6.1994. Mr. Navdeep Chhabra, Advocate, appearing for respondent No.1-Darshan Kumar, has attacked the judgments on the ground that endorsement Ex.P2 is to be read along with agreement Ex.P1. It is submitted that endorsement Ex.P2 is only regarding extension of the date and the parties had to abide by rest of the terms & conditions of the agreement Ex.P1. Therefore, it is submitted that the plaintiffs are entitled to grant of ` 2,60,000 as damages also. I have given due consideration to this submission. It seems that the parties, being extra cautious, wanted to get the land demarcated to give particulars in the sale deed, therefore, the time was extended vide endorsement Ex.P2. Thus, both the Courts below had rightly held that endorsement Ex.P2 vests no right in the plaintiffs to the suit to invoke penal clause unilaterally. Thus, there is no merit in both the appeals and the same are liable to be dismissed especially when both the Courts below have exercised their discretion validly. No question of law, much less a substantial one, has been raised for consideration of Regular Second Appeal No. 3181 of 2010 And 11 Regular Second Appeal No. 3153 of 2010 this Court, which may warrant interference in both the appeals. Consequently, both the appeals are hereby dismissed and the concurrent findings, returned by both the Courts below, are upheld. (Kanwaljit Singh Ahluwalia) Judge August 5, 2011 “DK”