RSA No. 4398 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 4398 of 2009 Date of Decision: 01.02.2011. Mohan Singh and others .......Appellants Vs. Krishan Kumar ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Surjit Singh Swaich, Advocate for the appellants. ..... SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 7.5.2005. The case of the plaintiff in brief was that defendants were the owners of the suit property and had agreed to sell the same to the plaintiff vide agreement dated 7.5.2005. The total sale consideration was ` 22,89,380/-. ` 7,00,000/- were paid as earnest money by the plaintiff to the defendants. The sale deed was to be executed on 6.5.2006. On 6.5.2006 and 7.5.2006, there were holidays and as such the plaintiff, after informing the defendants, remained present in the office of Sub Registrar, Fatehgarh Sahib on 5.5.2006 and 8.5.2006 for execution of the sale deed but the defendants failed to perform their part of the contract. Hence, the suit was filed by the plaintiff. Defendants, in their written statement, denied the RSA No. 4398 of 2009 -2- execution of the agreement to sell in question. It was averred that in fact the defendants had borrowed ` 7,00,000/- from the plaintiff and at that time the plaintiff had taken signatures of the defendants on many blank papers, stamp papers, pronote and receipt. Defendants had returned ` 3,50,000/- to the plaintiff but no receipt had been issued by the plaintiff, in this regard. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to a decree for specific performance of the contract dated 7.5.2005? OPP 2. Whether the plaintiff is ready and willing his part of the contract or in the alternative whether the plaintiff is entitled to the recovery of ` 22,89,380/- as damages? OPP 3. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPP 4. Whether the suit is not maintainable ? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the Civil Court has no jurisdiction to file the present suit? OPD 7. Relief.” Vide judgment and decree dated 09.9.2008, the trial court decreed the suit of the plaintiff for possession by way of specific performance of agreement to sell dated 7.5.2005. Aggrieved by the said judgment and decree, the defendants preferred an appeal and the same was dismissed by the RSA No. 4398 of 2009 -3- Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 12.3.2009. Hence, the present appeal by the defendants. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Plaintiff has placed reliance on the agreement to sell dated 7.5.2005 in order to seek possession of the suit property. In order to prove his case, plaintiff examined Gurinder Singh, Deed Writer (PW-1) and Vinay Kumar (PW-2), who was the attesting witness of the agreement to sell. The plaintiff himself also appeared in the witness box, in support of his case, as PW-3. The said witnesses deposed qua due execution of the agreement to sell in question. The defendants had taken the plea that the agreement to sell in question was the result of fraud. However, the defendants failed to establish their said plea. The defendants failed to establish that they had taken a loan of ` 7,00,000/- from the plaintiff or that they had returned ` 3,50,000/- to the plaintiff out of the said loan amount. The defendants had failed to prove on record any receipt towards part payment of loan to the extent of ` 3,50,000/- In these circumstances, the courts below after appreciating the evidence, led on record by the parties, had rightly given findings of fact that the agreement to sell in question was duly executed by the defendants in favour of plaintiff. In order to establish that plaintiff was always ready and willing to perform his part of the contract, the plaintiff deposed that he had remained present in the office of the Sub Registrar on 5.5.2006 and 8.5.2006 as 6.5.2006 and 7.5.2006 RSA No. 4398 of 2009 -4- were holidays. The plaintiff while appearing in the witness box further deposed that he had appeared before the Sub Registrar, Fatehgarh Sahib, after informing the defendants. Defendants, however, failed to turn up to execute the sale deed in favour of the plaintiff. Plaintiff proved on record affidavits Ex.PW-3/B and Ex.PW-3/C, which were executed by the plaintiff to mark his presence in the office of Sub Registrar, Fatehgarh Sahib. In these circumstances, the plaintiff had been successful in establishing that he was always ready and willing to perform his part of the contract. The courts below had, thus, rightly decreed the suit of plaintiff. No substantial question of law arises in this case. Dismissed. (SABINA) JUDGE February 01, 2011 Gurpreet