RSA No.4125 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4125 of 2008 Date of Decision:15.12.2008 Dalip Kaur ....appellant Versus Harjit Pal Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Ms.Shweta Bawa,Advocate for the appellant **** RAKESH KUMAR GARG J. As per the averments made in the plaint, the plaintiff Harjit Pal Singh alleged that on 25.6.2002, the defendant Dalip Kaur agreed to sell her land measuring 16 Marlas, fully described in the title of the plaint for a sum of Rs. 2 lacs and after receiving a sum of Rs. 50,000/- executed an agreement to sell dated 25.6.2002 in favour of the plaintiff in the presence of the attesting witnesses. The sale deed was agreed to be executed and got registered by the defendant on or before 20.6.2003. It is alleged by the plaintiff that he has always been ready and willing and is still so ready and willing to perform his part of the contract, but the defendant Dalip Kaur backed out from the agreement and failed to execute the sale deed as agreed. Hence the plaintiff filed this suit for grant of decree for specific performance of the agreement to sell dated 25.6.2002 or in the alternative for the recovery of Rs. 2 lacs with interest. The defendant contested the suit and filed her written statement, wherein she denied having executed the alleged agreement to sell the property in question in plaitniff's favour or having received any earnest money there under from the plaintiff. The defendant has contended that in fact she borrowed a loan of Rs. 50,000/- from the plaintiff, out of RSA No.4125 of 2008 2 which some amount has already been returned by her and she is also ready to pay the remaining amount also. It is contended that the plaintiff has got executed the agreement to sell from the defendant in lieu of the above said loan. The house in question is the only residential house of the defendant and, therefore, she could not have agreed to sell the same. With these contentions, the defendant prayed for the dismissal of the plaintiff's suit. After hearing the learned counsel for the parties and considering the evidence adduced by the parties, vide Judgment and Decree dated 09.06.2008, the trial Court decreed plaintiff's suit for the alternative relief for the recovery of Rs.50,000/- with costs and with interest @ 9% per annum with effect from the date of execution of the agreement Ex. P1 till the date of decree and future interest @ 6% per annum with effect from the date of decree till its realization. Aggrieved by the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal for modifying the judgment and decree of the trial Court and for passing a decree for possession of the suit land by way of specific performance of the agreement to sell Ex.P-1. It is pertinent to mention here that defendant has not challenged the findings of the trial court by filing an appeal before the Lower Appellate Court. The Lower Appellate Court vide its judgment and decree dated 03.09.2008 accepted the appeal filed by the plaintiff and modified the decree of the trial Court and passed a decree of specific performance of the agreement to sell dated 25.06.2002 in favour of the plaintiff and directed the appellant/defendant to execute the sale deed in favour of the plaintiff in respect of suit property after receiving the balance consideration. While allowing the appeal, the District Judge, Faridkot observed as under: “In this case, the respondent-defendant has not denied the RSA No.4125 of 2008 3 execution of the agreement, but she contends that the agreement was got executed from her by the plaintiff as a collateral security for the repayment of the loan raised by her from the plaintiff, but the learned Lower Court instead of directing the respondent-defendant Dalip Kaur to execute the sale deed in terms of the agreement to sell Ex. P-1 has passed a money decree for a sum of Rs. 50,000/- which was paid by the plaintiff to the defendant towards earnest money, along with interest, in favour of the plaintiff. Perhaps it weighed with the learned Lower Court that the document in question was a collateral security. However, to my mind, no such collateral security has been proved by the respondent. As per the respondent-defendant, in the past she had raised a loan of Rs.50,000/- from the appellant- plaintiff, which has been partly repaid by her and partly remains to be paid. However, in support of her contention, the respondent-defendant did not lead any cogent and convincing evidence. She could not produce any document showing that in fact she had raised a loan from the plaintiff. She also could not prove that she has since returned a part of the loan to the appellant, as contended by her before the learned Lower Court. No writing, no pronote and no receipt regarding the repayment has been produced, which itself proves that the document Ex. P1 was in fact intended and executed by the defendant as an agreement to sell the suit property and not merely a collateral security. Thus, the plea set up by the defendant that the agreement Ex. P1 was got executed from her by the plaintiff as a security for the repayment of the loan raised by her from the plaintiff, RSA No.4125 of 2008 4 remains unproved. On the other hand, the appellant-plaintiff has successfully proved the execution of the agreement to sell Ex. P-1 as well as the passing of consideration sum there under. He has also proved that he throughout remained ready and willing and is still so ready and willing to perform his part of the contract. Under these circumstances, instead of granting the alternative relief and passing a money decree, the learned lower Court should have passed a decree for specific performance of the agreement to sell dated 25.6.2002 Ex. P1.” Learned counsel for the appellant has vehemently argued that in this case the plaintiff-respondent has failed to prove that he was always ready and is still ready to perform his part of the contract. The plaintiff-respondent has not been able to show and prove that on the stipulated date, he remained present in Tehsil complex or did get his presence marked by filing an application and nothing has come on the file. Even the plaintiff-respondent did not serve any notice upon the appellant to get the sale deed executed immediately after sale deed. The notice is stated to have been sent by the plaintiff on 01.08.2005, whereas the execution of the sale deed was allegedly fixed on 20.06.2003. These facts clearly show that respondent was not ready to get the sale deed executed as he knew that the agreement itself was not the sale of the land and in these circumstances, the version of the appellant-defendant that she never intended to sell her only residential house and in fact the agreement was as security, should have been executed. The learned counsel has further argued that the Lower Appellate Court has wrongly modified the decree passed by the trial Court as from the facts it is proved that it was not a case for grant of decree for specific performance of an agreement to sell. I have heard learned counsel for the appellant. However, I RSA No.4125 of 2008 5 find no merit in the arguments raised by the learned counsel for the appellant. In this case, the appellant has not denied the execution of the agreement but she contended that the agreement was got executed by her as a collateral security for the repayment of the loan raised by her from the plaintiff. However, the appellant has failed to prove her plea. As per the appellant, she had raised loan of Rs.50,000/- from the plaintiff-respondent which had been partly repaid by her and partly remains to be paid. However, in support of her contention, she neither lead any cogent evidence nor could produce any document in support of her argument. She even could not prove that she has returned a part of the loan to the appellant. Thus, the plea set up by the appellant that the agreement Ex.P- 1 was got executed from her by the plaintiff as a security for the repayment of the loan raised by her, remains unproved. On the other hand, on appreciation of evidence, the Courts below recorded a finding of fact that plaintiff remained ready and willing to perform his part of the contract and in fact these findings of the trial Court have never been challenged by the appellant as admittedly no appeal was filed by the appellant against the judgment and decree of the trial Court. There is nothing on record which would disentitle the plaintiff- respondent from the grant of a decree for the specific performance of the agreement to sell, in question. Thus, no fault can be found with the findings recorded by the Lower Appellate Court. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 15.12.2008 neenu