R.S.A.No.4069 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1) R.S.A.No.4069 of 2006 Balwinder Kaur ....Appellant Versus Bhajna ...Respondent 2) R.S.A.No.4070 of 2006 Baldev Kumar ....Appellant Versus Bhajna ...Respondent 3) R.S.A.No.1277 of 2007 Baldev Kumar ....Appellant Versus Bhajana ...Respondent Date of Decision : 29.4.2009 CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... R.S.A.No.4069 of 2006 -2- Present : Mr.P.S.Dhaliwal, Advocate for the appellant (in all the appeals). Mr.Padam Jain, Advocate for the respondent (in all the appeals). ... MAHESH GROVER, J. This order will dispose of the aforesaid three regular second appeals filed by the plaintiff-appellant. The plaintiff-appellant filed three civil suits. Civil Suit No.73 of 2004 was filed by Balwinder Kaur wife of Baldev Kumar for possession by way of specific performance of the agreement to sell dated 2.7.1999 vide which the respondent-defendant had agreed to sell his land measuring 12 kanals 19 marlas in her favour for a total sale consideration of Rs.5,26,100/-. It was alleged that earnest money of Rs.3,44,000/- was paid and the sale deed was to be executed on 29.12.1999. Two other civil suits were filed by Baldev Kumar, husband of Balwinder Kaur. Civil Suit No.336 of 2003 was filed for enforcement of agreement to sell dated 2.7.1997 in respect of land measuring 10 kanals which was agreed to be sold by the same respondent in favour of the plaintiff/appellant Baldev Kumar for a total sale consideration of Rs.2,50,000/-. An earnest money of Rs.92,500/- was paid by the appellant/plaintiff and the sale deed was to be executed on 2.7.1998. In Civil Suit No.377 of 2003 the agreement to sell was dated 1.3.1999 in respect of land measuring 8 kanals for a total sale consideration of Rs.3,00,000/- and an earnest money of Rs.2,11,500/- was paid by the appellant-plaintiff to the respondent and the sale deed was to be executed on 1.3.2000. Since R.S.A.No.4069 of 2006 -3- the aforesaid agreements to sell were not converted in to the sale deeds, the plaintiff-appellant filed the aforesaid three civil suits. It was pleaded by the appellant-plaintiff that the valid consideration had been passed pursuant to the respective agreements to sell and that he/she was willing and ready to perform his/her part of the agreement and he/she remained present in the office of Sub-Registrar on the aforesaid dates. But since the respondent failed to appear, therefore, he/she was entitled to get the agreement enforced and get the sale deed executed in his/her favour. The respondent/defendant pleaded fraud and forgery and also pleaded that in fact these were loan transactions and that Baldev Kumar had in fact given loan to the respondent/defendant which was repaid by executing works on behalf of the respondent. It was pleaded that the agreements to sell were not executed. The parties went to trial on the following issues :- Civil Suit No.73 of 2004 1. Whether the plaintiff is entitled for possession by way of specific performance of agreement to sell dated 2.7.99 as prayed for?OPP 2. If issue No.1 is not proved, whether the plaintiff is entitled for recovery of Rs.5,26,100/- as alternative relief?OPD 3. Whether agreement in dispute is result of fraud, misrepresentation?OPD 4. Whether the suit is not maintainable?OPD 5. Relief. R.S.A.No.4069 of 2006 -4- Civil Suit No.336 of 2003 1. Whether the plaintiff is entitled for possession by way of specific performance of the agreement to sell dated 2.7.1997 as prayed for?OPP 2. If issue No.1 is not proved, whether the plaintiff is entitled for recovery of Rs.2,50,000/- as prayed for?OPP 3. Whether the plaintiff is estopped to file the present suit by his act and conduct and acquiescence?OPD 4. Whether the suit is not maintainable?OPD 5. Relief. Civil Suit No.377 of 2003 1. Whether the plaintiff is entitled for grant of decree for possession by way of specific performance of agreement to sell dated 1.3.1999 as prayed for?OPP 2. Whether plaintiff is entitled for alternative relief of recovery of Rs.3,00,000/- as prayed for?OPP 3. Whether plaintiff is estopped by his own act and conduct from filing the present suit?OPD 4. Whether the suit is not maintainable?OPD 5. Relief. The trial court on the basis of evidence before it decreed civil suits No.73 of 2004 and 336 of 2003 for possession by way of specific performance of the agreements in question and in the appeal filed by the respondent, the learned first Appellate Court partly set aside the judgments and decrees passed by the learned trial Court and R.S.A.No.4069 of 2006 -5- decreed both the suits in alternative for recovery of earnest money along with interest and costs. The third suit i.e. civil suit No.377 of 2003 for alternative relief for recovery of earnest money was decreed with interest and costs and in appeal the first Appellate Court affirmed the said findings regarding execution of the agreement to sell and concluded that it was a case where the evidence pointed to the existence of loan transactions in stead of the intention of the parties to sell the lands and further concluded that these are fit cases where the discretion under Section 20 of the Specific Relief Act should be exercised in favour of the defendant/respondent rather than ordering the execution of the sale deeds and consequently the suits were decreed in the alternate terms and the amount of earnest money was ordered to be returned along with interest, which has resulted in the present regular second appeals by the respective plaintiff/appellants in which it has been contended that the discretion under Section 20 of the Specific Relief Act has been wrongly exercised by the first Appellate Court. It has been contended that the contents of the agreements should have been read as such and it is a settled principle of law that no other meaning can be assigned to the document and it has to be accepted in the way as it is. It was further contended that this has resulted into a serious prejudice to the appellant/plaintiff. On the other hand, learned counsel for the respondent pointed out that the first agreement to sell was executed on 2.7.1997 which was to be converted into a sale deed on 2.7.1998 and if the case of the plaintiff/appellant is to be accepted, then in such an R.S.A.No.4069 of 2006 -6- eventuality there was no occasion for him/her to enter into the subsequent agreements to sell dated 2.7.1999 and 1.3.1999. It was pleaded that appellant Balwinder Kaur herself in her cross- examination had admitted that she and her husband have filed three cases and she has filed a case because Bhajna did not return the amount and in this view of the matter the findings recorded by the first Appellate Court cannot be termed to be erroneous. I have heard the learned counsel for the parties and have gone through the impugned judgments. The question of law that arises for consideration of this Court is as under :- Whether the Court has exercised its discretion under Section 20 of the Specific Relief Act fairly or not? The discretion under Section 20 of the Specific Relief Act whether exercised fairly or not is a question of law as has been held by the Supreme Court in Rajeshwari v. Puran Indoria 2005(7) S.C.C. 60. Therefore, this Court is cast with a duty to examine the evidence on the basis of which such a discretion has been exercised by the trial Court and the first Appellate Court. It is to be noticed with concern that Balwinder Kaur plaintiff in civil Suit No.73 of 2004 has categorically admitted that the civil suits were necessitated when the respondent failed to return the loan amount. In view of the said categoric admission, the first Appellate Court was right in concluding that apparently it was a loan transaction and not an agreement to sell. The contention of the learned counsel for the appellant/plaintiff that no other meaning could be assigned to the document cannot hold R.S.A.No.4069 of 2006 -7- much water, as this is a settled proposition of law that every case has to be examined independently. In the present case the attending circumstances, especially the statement of appellant Balwinder Kaur cannot be ignored in the given set of circumstances when she herself admitted that it was a loan transaction and the suits were filed when the amounts were not paid. Accordingly, the discretion exercised by the first Appellate Court under Section 20 of the Specific Relief Act cannot be termed to be erroneous or faulty. Another thing which weighs in the mind of the Court is that it is highly improbable that a person would go for execution of another agreement especially when the first agreement which was to be translated into a sale deed on 2.7.1998 was not honoured. This ought to have led to a bad relationship between the parties, but instead two other agreements were executed which leads to an inference that these were probably money transactions. The relevant extract of the statement of the plaintiff/appellant Balwinder Kaur in her cross-examination is also extracted herein which has strengthened the view of the Court. “Myself and my husband have filed three cases. I have filed this case regarding the agreement which was executed. This case has been filed as Bhajna has not returned our money....” Consequently, there is no merit in all the three appeals and the same are hereby dismissed. 29.4.2009 (MAHESH GROVER) JUDGE dss