RSA No.2331 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2331 of 2009 Date of Decision: 01-07-2009 Vijay Kumar and another ......Appellants Versus Kesar Singh .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Ajay Jain, Advocate, for the appellants. HEMANT GUPTA, J. (Oral). The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for specific performance of an agreement of sale dated 14.12.1999 in respect of land measuring 32 kanals situated in village Kharekan @ Rs.1,20,000/- per acre has been decreed. A sum of Rs.1,25,000/- was paid as an earnest money. The balance amount was payable at the time of registration of the sale deed. The last date for execution and registration of the sale deed was fixed as 15.6.2000. Since the sale deed was not executed as agreed in the aforesaid agreement, the plaintiff filed a suit for specific performance, which was decreed by the learned trial Court and such decree has been affirmed in appeal as well. Learned counsel for the appellants has vehemently argued that RSA No.2331 of 2009 (2) an application under Order 12 Rule 6 CPC was filed by the appellants before the learned first Appellate Court for passing a decree in the sum of Rs.4,80,000/- i.e., the alternative relief prayed by the plaintiff in the suit. It is contended that since the learned first Appellate Court has not passed any final order on such application under Order 12 Rule 6 CPC and, therefore, the decree passed by the Appellate Court is not sustainable. It is also contended that since the plaintiff has claimed alternative relief of damages, therefore, in view of the judgment of the Hon'ble Supreme Court in Kanshi Ram v.Om Prakash Jawal and others, AIR 1996 SC 2150, the decree for damages alone could have been granted by the Courts below. I have heard learned counsel for the appellants at length. In my opinion, no substantial question of law arises for consideration. Once, the defendants have moved an application under Order 12 Rule 6 CPC for passing of a decree in respect of alternative relief, it presupposes the execution of the agreement and receipt of the earnest money. The learned first Appellate Court has noticed the effect of the said application and has returned a finding that the claim of alternative relief does not debar the plaintiff from seeking specific performance of an agreement of sale. The first Appellate Court has discussed the stand of the defendants in respect of execution of the agreement and returned a firm finding of fact that the agreement of sale was executed by the defendants including the endorsement of receipt of Rs.1,25,000/- as earnest money and, therefore, affirmed the decree for specific performance. In a suit for specific performance of an agreement to sell of immovable property, the normal rule is the specific performance of the agreement. It has been so held by the Hon'ble Supreme Court in Prakash RSA No.2331 of 2009 (3) Chandra v. Angadlal and others, AIR 1979 SC 1241, to the following effect:- “9. The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance.” xx xx xx “10. It is urged by learned counsel for the first and second respondents that the contract for sale contains a clause for payment of damages in case of breach of the contract and that, therefore, damages should be awarded instead of specific performance. A perusal of the terms of the contract indicates that the stipulation for damages was made only for the purpose of securing performance of the contract and not for the purpose of giving an option to Mohssinali and Qurban Hussain of paying money in lieu of specific performance. Even if a sum has been named in the contract for sale as the amount to be paid in case of a breach, the appellant is entitled in law to the enforcement of the agreement.” In Moti Lal Jain v. Ramdasi Devi, (2000)6 SCC 420, it was held to the following effect:- “Merely because the plaintiff claims damages in a suit for specific performance of contract as an alternative relief, it cannot be said that he is not entitled to the main relief of specific performance of the contract itself.” In Mohinder Singh v. Guljit Singh, (2000-3) 126 PLR 115 and Raj Singh v. Inder Jeet, (2005-2) PLR 136, this Court has taken the view RSA No.2331 of 2009 (4) that merely because an alternative relief for damages has been claimed, it would not amount the waiver of the principal relief for enforcing specific performance of the agreement. In Kanshi Ram's case (supra), the Court in the facts of the case found that it would be just and equitable not to grant decree for specific performance, but granted Rs.10 lacs as alternative relief though the plaintiff claimed Rs.12,000/-. That was a case, where it was found that grant of decree of specific performance would be unrealistic and unfair. The said judgment is not a precedent on a proposition of law as it is on the facts of that case, the Court moulded the decree. In view of the above, I do not find any patent illegality or material irregularity in the findings recorded by the Courts below, which may give rise to any substantial question of law in the present appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 01-07-2009 ds