R. S. A. No. 2596 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2596 of 2009 Date of Decision : March 30, 2011 Sat Pal .... Appellant Vs. Sheonan .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rakesh Gupta, Advocate for the appellant. Mr. Arvind Bansal, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Plaintiff Sat Pal having partly succeeded in the courts below has filed the instant second appeal. Plaintiff filed suit for symbolical possession of the suit property by specific performance of the agreement to sell dated 16.11.2002 alleging that the defendant-respondent agreed to sell the suit land measuring eight kanals to plaintiff for Rs.3,25,000 and also received a sum of Rs.2,40,000/- as earnest money and executed the aforesaid agreement. The defendant also handed over possession of land of khasra no.59/4 to the plaintiff at the time R. S. A. No. 2596 of 2009 2 of agreement. Plaintiff is now in possession thereof. The plaintiff always remained ready and willing to perform his part of the contract, but the defendant committed breach thereof, necessitating the filing of the suit. The defendant inter alia pleaded that her husband was real younger brother of plaintiff's father. Defendant's son Vakil Singh borrowed Rs.2,26,500/- from one Dalvinder Singh, for which two agreements to sell dated 19.06.2001 and 31.07.2001 were executed by the defendant at the instance of her son Vakil Singh as security for the said loan amount, which was to be returned in the month of June 2002. To help the defendant's son Vakil Singh, at his instance, the plaintiff advanced him Rs.2,40,000/- as loan in June 2002 without execution of any writing. However, after 4-5 months, the plaintiff got executed the impugned agreement as security for the loan amount of Rs.2,40,000/-. Possession of any land was not delivered to the plaintiff. Defendant is still in possession of the said land. The defendant expressed her readiness to repay the loan of the plaintiff with interest, but the plaintiff refused to accept the same. Various other pleas were also raised. Learned Civil Judge (Junior Division), Kaithal, vide judgment and decree dated 15.02.2008, accepting the defendant's version, decreed the plaintiff's suit for recovery of Rs.2,40,000/- with interest at the rate of 12% per annum since June 2002 till recovery, instead of granting relief of specific performance of the agreement to sell. First appeal preferred by the R. S. A. No. 2596 of 2009 3 plaintiff has been dismissed by learned Additional District Judge, Kaithal, vide judgment and decree dated 16.02.2009. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. While issuing notice of motion vide order dated 23.10.2009, it was inter alia observed in the said order :- “It is not out of place to mention here that the counsel for the appellant has submitted that the defendant-respondent being a female having no moveable property to be got attached, it will even be difficult for the plaintiff to recover the amount of decree, but at the same time he has fairly conceded that in case the amount, admittedly received by the defendant is offered, he has got instructions to concede the relief of specific performance.” Vide order dated 17.11.2010, on request of counsel for respondent, case was adjourned to 17.12.2010 to enable the counsel to seek instructions, if the defendant-respondent was ready to pay the decretal amount pursuant to aforesaid offer recorded in the motion order. Again on R. S. A. No. 2596 of 2009 4 17.12.2010, another adjournment was granted for the same purpose and the case was adjourned to 08.02.2011. On 08.02.2011, the case could not be taken up for hearing and was adjourned for today. Learned counsel for respondent, however, states that in spite of his efforts, the respondent has not contacted him and therefore, he is not in a position to respond to the above stated offer made by counsel for the appellant at the time of motion hearing. Learned counsel for the appellant vehemently contended that execution of the agreement stands admitted by the defendant-respondent and has also been proved by the evidence of the plaintiff and even the courts below had returned finding to this effect. It was accordingly contended that in view of said finding, there was no occasion for the courts below to deny the relief of specific performance of the impugned agreement to the plaintiff. It was pointed out that oral evidence of defendant-respondent is not sufficient to deny the said relief to the appellant. It was also submitted that in spite of above offer made in the motion order, the defendant- respondent has not even paid the decretal amount as per decrees of the courts below, and therefore, the plaintiff-appellant is entitled to relief of specific performance. On the other hand, learned counsel for the respondent contended that courts below have rightly granted the relief of recovery of money with interest and there is no sufficient ground to grant the relief of R. S. A. No. 2596 of 2009 5 specific performance of the agreement to the plaintiff-appellant. I have carefully considered the rival contentions. Execution of the impugned agreement by the defendant stands admitted. The plaintiff has also proved the execution of the said agreement by leading sufficient cogent evidence. The plaintiff has also led sufficient evidence to prove his readiness and willingness to perform his part of the impugned agreement. Oral testimony of defendant herself coupled with statement of another witness is not sufficient to depict that the agreement was executed as security for the loan amount. In addition to it, the defendant, in the written statement, offered to return the amount of Rs.2,40,000/- with interest to the plaintiff, but in spite of above offer of counsel for plaintiff-appellant at the time of motion hearing, the defendant-respondent has not paid the decretal amount to the plaintiff-appellant, although the plaintiff-appellant was ready to give up his prayer for specific performance of the impugned agreement. In the aforesaid circumstances, I find no sufficient ground to decline the relief of specific performance of the impugned agreement to the plaintiff-appellant. Accordingly, substantial question of law arises for determination in the instant second appeal as to whether in the facts and circumstances of the instant case, declining the relief of specific performance of the impugned agreement by the courts below is perverse and illegal and therefore unsustainable in law and whether the plaintiff- appellant is entitled to the said relief ? R. S. A. No. 2596 of 2009 6 For the reasons already recorded herein before, the aforesaid substantial question of law is answered in affirmative i.e. in favour of the plaintiff-appellant. However, in view of above mentioned offer made at the time of motion hearing, I intend to give another opportunity to defendant- respondent to pay the decretal amount and therefore, only conditional decree for specific performance of the impugned agreement is being passed. For the reasons aforesaid, the instant second appeal is allowed. Judgment and decrees of the courts below are modified. Plaintiff's suit is decreed for symbolical possession of the suit land by specific performance of the impugned agreement to sell dated 16.11.2002. However, if the defendant-respondent pays the decretal amount as per decrees of the courts below, either directly to the plaintiff-appellant or by deposit in the trial court with intimation to the plaintiff-appellant, within four months from today, then the plaintiff shall not be entitled to relief of specific performance of the impugned agreement. However, if the defendant-respondent fails to pay the decretal amount as aforesaid, the plaintiff-appellant shall deposit the balance sale consideration of Rs.85,000/- in the trial court within next two months and can execute the decree for relief of specific performance of the impugned agreement. The plaintiff-appellant shall be entitled to costs throughout. March 30, 2011 ( L. N. MITTAL ) monika JUDGE