RSA No.4644 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4644 of 2010 (O & M) Date of Decision: 04.02.2011 Naranjan Singh ……Appellant Versus Sarwan Singh …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Rakesh Kumar, Advocate for the appellant. L.N. MITTAL, J (ORAL) Defendant-Naranjan Singh, having failed in both the Courts below, has come up by way of instant second appeal. Suit was filed by respondent-plaintiff Sarwan Singh for possession of the suit land measuring 28 kanals 10 marlas by specific performance of the agreement to sell dated 07.10.2003. The plaintiff alleged that the defendant agreed to sell the suit land to the plaintiff at the rate of Rs.3,50,000/- per acre and received Rs.9,75,000/- as earnest money and executed the aforesaid agreement. Sale deed was to be executed upto 05.10.2004. The plaintiff always remained ready and willing to perform his part of the contract. On 04.10.2004, the plaintiff approached the defendant with balance sale consideration and asked him to execute the sale deed on 05.10.2004. The plaintiff remained present in the office of Sub- Registrar on 05.10.2004, but the defendant did not turn up and committed breach of the agreement. The plaintiff also sent notice dated 10.02.2005 by registered post requiring the defendant to RSA No.4644 of 2010 (O & M) - 2 - execute the sale deed on 02.03.2005, but the defendant did not do the needful. Defendant broadly denied the plaint allegations. The defendant alleged that he had taken loan of Rs.1,00,000/- from the plaintiff and had affixed his thumb impressions in the books of the plaintiff. The defendant has returned part of the loan amount and is ready to repay the remaining loan amount. Defendant pleaded that he never executed any agreement to sell the suit land. He also alleged that market price of the suit land was more than Rs.6,00,000/- per acre in the year 2003. The impugned agreement is forged and fabricated. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sultanpur Lodhi vide judgment and decree dated 23.05.2009 decreed the plaintiff’s suit. First appeal preferred by defendant stands dismissed by learned District Judge, Kapurthala vide judgment and decree dated 09.11.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff has led ample reliable evidence to prove due execution of the agreement by the defendant and receipt of earnest money by him. The plaintiff has examined Malkiat Singh PW-2, who is marginal witness of the impugned agreement. The plaintiff also examined the deed writer, who scribed the said agreement. The plaintiff himself also stepped into the witness box. All of them have stated according to plaintiff’s version. The plaintiff has also proved RSA No.4644 of 2010 (O & M) - 3 - his affidavits dated 05.10.2004 and 02.03.2005 by examining the Advocates/Oath Commissioners, who attested the same, depicting presence of plaintiff in the office of Sub-Registrar on the said dates to get the sale deed executed in terms of the impugned agreement. On the other hand, there is self-serving sole, bald and oral statement of the defendant. Plaintiff’s evidence is very cogent and reliable. Plaintiff’s case is supported by the testimony of Deed Writer as well as the testimony of the marginal witness of the agreement. The plaintiff also served notice dated 10.02.2005 on the defendant, but the defendant did not respond to the same. Thus plaintiff’s case is fully proved by his cogent evidence. Defendant’s sole self-serving statement is not sufficient to rebut the plaintiff’s cogent evidence and is not sufficient to prove the alleged fraud. On the other hand, there is concurrent finding by both the Courts below in favour of the plaintiff. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence and consequently, the same does not warrant interference in second appeal. Consequently, suit of the plaintiff has been rightly decreed by the Courts below. Learned counsel for the appellant vehemently contended that the agreement is dated 07.10.2003 and date for execution of sale deed was fixed as 05.10.2004 i.e after one year and the suit was filed on11.09.2007 and these circumstances would depict that it was loan transaction. The contention is completely misconceived RSA No.4644 of 2010 (O & M) - 4 - because stipulation of date for execution of sale deed after one year of the agreement does not in any manner depict that it was a loan transaction. On the other hand, defendant pleaded that he had affixed his thumb impressions in the books of the plaintiff. However, the defendant did not allege that he had affixed his thumb impressions on any stamp paper. On the contrary, the agreement has been executed on stamp paper and entry in the register of Deed Writer relating to the agreement was also thumb marked by the defendant. Mere filing of suit after delay of almost three years would not disentitle the plaintiff to the relief of specific performance of the agreement in the facts and circumstances of the instant case. The plaintiff went to the office of Sub-Registrar on 05.10.2004 to get the sale deed executed in terms of the agreement, but the defendant did not turn up. The plaintiff then served notice dated 10.02.2005 on the defendant requiring him to execute the sale deed on 02.03.2005. However, even on 02.03.2005, the defendant did not turn up, although the plaintiff remained present in the office of Sub-Registrar on 02.03.2005 also. In addition to it, the defendant at the time of agreement received Rs.9, 75,000/- as earnest money which is more than 75% of the total sale consideration. The defendant has been utilizing the said money and is also in possession of the said suit land. Thus the defendant himself is the gainer by the delay in filing the suit by the plaintiff. The defendant has not suffered any loss or injury by the said delay. On the contrary, the plaintiff himself suffered loss and injury because he remained deprived of the amount of Rs.9,75,000 paid by him as earnest money to the defendant and also did not get possession of the suit land. In these circumstances, Courts below have rightly exercised the discretion by granting the RSA No.4644 of 2010 (O & M) - 5 - relief of specific performance of the agreement in favour of the plaintiff. It is worth mentioning that the defendant pleaded having taken loan of Rs.1,00,000/- only. However, the impugned agreement recites that the defendant received Rs.9,75,000/-. The defendant also pleaded that out of loan amount of Rs.1,00,000/-, he had repaid some amount to the plaintiff. However, in the written statement, the defendant did not even specify as to how much amount he had repaid to the plaintiff and when. It exposes hollowness of the claim of the defendant. It is further significant to notice that in the witness box, the defendant came out with a new version that he had repaid the part loan amount to plaintiff’s wife and not to the plaintiff himself, who had allegedly gone abroad. However, no such version was pleaded in the written statement. Learned counsel for the appellant also contended that the plaintiff may be granted alternative relief of refund of earnest money with compensation. However, in my considered opinion, keeping in view the facts and circumstances of the instant case, as already noticed hereinbefore, the plaintiff is entitled to relief of specific performance of the agreement. Judgments cited by learned counsel for the appellant in support of this contention are completely distinguishable on facts. In the case of Kashi Ram versus Om Prakash Jawal, 1996(2) PLR 337, the plaintiff had paid Rs.2500/- only as earnest money, but the Hon’ble Supreme Court granted Rs.10,00,000/- as compensation to the plaintiff instead of relief of specific performance. Thus in that case, compensation granted by the Supreme Court was 400 times of the earnest money. In the RSA No.4644 of 2010 (O & M) - 6 - instant case, obviously the defendant is not ready to pay compensation in the same ratio. In the case of Veluyudhan Sathyadas versus Gondan Dakshyani, 2003(3) LJR 253, the matter was simply remanded to the trial Court for fresh consideration. In the case of A.C. Arulappan versus Smt. Ahalya Naik, 2001(4) RCR (Civil) 109, it was found that plaintiff had tried to take unfair advantage over the appellant-defendant and, therefore, alternative relief of recovery of money was granted instead of specific performance of the agreement. In the instant case, however, the plaintiff has not taken any undue or unfair advantage over the defendant. The defendant has not produced evidence of any sale instance to depict that sale consideration recited in the agreement was not according to prevalent market rate. So this judgment is also not applicable to the facts of the instant case. In the cases of Tejram versus Patirambhau, 1997(Suppl.) Civil Court Cases 0184 and Lonkaran Kishorilal Paliwal versus Bhaskar Rambhau Ghive and another, 1993(suppl.) Civil Court Cases 0179, the transaction was found to be of loan and, therefore, relief of specific performance was not granted. In the instant case, however, the defendant has miserably failed to prove that the transaction in question was transaction of loan and not of agreement to sell. Consequently, these judgments are also not applicable to the instant case. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) RSA No.4644 of 2010 (O & M) - 7 - JUDGE 04.02.2011 A.kaundal