R. S. A. No. 1426 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1426 of 2008 Date of Decision : July 15, 2010 Dilbagh Singh .... Appellant Vs. Surjit Kaur and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Mandeep S. Sachdev, Advocate for the appellant. Mr. Salil Sagar, Senior Advocate with Mr. Samarth Sagar, Advocate for respondent no.1. Mr. G. S. Sandhawalia, Advocate for respondents no.2 to 4. * * * L. N. MITTAL, J. (Oral) : Along with instant R. S. A. No. 1426 of 2008, Cross- objections No.21-C of 2008 filed by respondents no.2 to 4 in the appeal shall also stand disposed of. Plaintiff Dilbagh Singh has filed the instant second appeal having remained unsuccessful in both the courts below. Plaintiff filed suit for possession of suit land measuring 59 R. S. A. No. 1426 of 2008 2 kanals 12 marlas by specific performance of the agreement to sell dated 12.09.1995 alleging that defendant no.1 appointed defendant no.2 as her attorney and defendant no.2, as attorney of defendant no.1, agreed to sell the suit land to plaintiff for Rs.7,47,000/- and received Rs.3,50,000/- as earnest money and executed agreement dated 12.09.1995. Subsequently, defendant no.1 cancelled the Power of Attorney in favour of defendant no.2. The plaintiff has always been ready and willing to perform his part of the contract, but the defendants have committed breach thereof. Defendant no.1 denied the plaint allegations and inter alia pleaded that impugned agreement is result of fraud and fabrication committed by plaintiff and defendant no.2, who are brothers, whereas defendant no.1 is their step sister. Defendant no.1 is settled in England and plaintiff and defendant no.2 were looking after her land. The General Power of Attorney purporting to be executed by defendant no.1 in favour of defendant no.2 was got registered by producing some other woman in the office of Sub Registrar at the time of registration on 23.08.1995, while defendant no.1 was not even in India on 23.08.1995. Defendant no.1 was not even aware of the impugned agreement. She cancelled the Power of Attorney in favour of defendant no.2 on 04.10.1995. Thereafter, on 26.10.1995, there was compromise between the parties and even then, the impugned agreement was not disclosed to defendant no.1 and was not referred to in the said compromise. The said agreement has been R. S. A. No. 1426 of 2008 3 manipulated by plaintiff and defendant no.2. Various other pleas were also raised. Defendant no.2, in his written statement, pleaded that defendant no.1 executed Power of Attorney in his favour. The said Power of Attorney after registration was given to him by Jaswant Singh – a relative of defendant no.1. Defendant no.2 alleged that he was not present at the time of registration of Power of Attorney. Defendant no.2 also pleaded that said Power of Attorney was cancelled by defendant no.1, who served notice dated 04.10.1995 regarding the same. Cancellation deed dated 04.10.1995 was also executed by defendant no.1. However, defendant no.2 admits that he had executed the impugned agreement on the basis of Power of Attorney, which was valid at that time. Learned Additional Civil Judge (Senior Division), Jalandhar, vide judgment and decree dated 01.08.2005, dismissed the plaintiff's suit. Against judgment and decree of the trial court, plaintiff as well as defendant no.2 preferred separate first appeals. Both the said appeals have been dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Jalandhar, vide judgment and decree dated 22.02.2008. Feeling aggrieved, plaintiff has filed the instant second appeal, whereas respondents no.2 to 4, who are legal representatives of defendant no.2 (since deceased), have filed cross-objections. I have heard learned counsel for the parties and perused the R. S. A. No. 1426 of 2008 4 case file. It stands amply proved on record that the alleged Power of Attorney dated 30.06.1995 executed by defendant no.1 in favour of defendant no.2 was registered in the office Sub Registrar, Jalandhar on 23.08.1995, but at that time, defendant no.1 i.e. executant of said Power of Attorney, was not even in India. It is thus apparent and manifest that defendant no.1 did not get the said Power of Attorney registered and rather somebody impersonated for her to get the Power of Attorney registered. Consequently, registration of Power of Attorney is null and void. Without registration, the Power of Attorney being General Power of Attorney, was ineffective and not legal and valid. On the basis of unregistered Power of Attorney, even if executed by defendant no.1, defendant no.2 as Attorney could not derive any authority to enter into the impugned agreement on behalf of defendant no.1. Consequently, the impugned agreement is not a legal and valid agreement on behalf of defendant no.1 for sale of her suit land in favour of the plaintiff. In this view of the matter, relief of specific performance of the agreement has been rightly declined to the plaintiff- appellant by the courts below. There is no illegality or infirmity in the judgments of the courts below on this count. Concurrent finding of fact recorded by both the courts below is based on proper appreciation of evidence and does not suffer from any infirmity, much less illegality or perversity so as to warrant interference in the instant second appeal. R. S. A. No. 1426 of 2008 5 Faced with the aforesaid situation, learned counsel for the appellant contended that respondents no.2 to 4 as legal representatives of defendant no.2 should be directed to refund the earnest money of Rs.3,50,000/- admittedly received by defendant no.2 from the plaintiff, along with interest thereon. The aforesaid prayer has been opposed by learned counsel for respondents no.2 to 4 (legal representatives of defendant no.2) contending that Power of Attorney was valid when defendant no.2 executed the impugned agreement to sell on its basis. I have carefully considered the aforesaid contentions. Following substantial question of law arises for determination in the instant second appeal :- “Whether the appellant is entitled to the refund of earnest money along with interest from respondents no.2 to 4 (legal representatives of defendant no.2) ?” The contention raised on behalf of respondents no.2 to 4 cannot be accepted because the Power of Attorney was not valid when defendant no.2 executed the impugned agreement. The Power of Attorney never became legal, valid or effective as it was never got registered by defendant no.1 and without registration, the General Power of Attorney could not become effective as it required compulsory registration. Defendant no.2 has admitted that he had executed the R. S. A. No. 1426 of 2008 6 impugned agreement and received Rs.3,50,000/- as earnest money from the plaintiff. Defendant no.2 has not even pleaded that he paid the said amount to defendant no.1, on whose behalf he allegedly received the same. Consequently, defendant no.2, who received the earnest money, is liable to refund the same to the plaintiff. In addition to it, plaintiff-appellant is also entitled to interest at reasonable rate on the aforesaid amount. In the year 1995, when the agreement was executed, interest rates were very high, but since the year 2000 or so onwards, interest rates have fallen down considerably. Consequently, interest at flat rate of 10% per annum from the date of agreement till date of decree of the trial court and at the rate of 6% per annum thereafter till recovery would be just and reasonable. Cross-objections have been filed by respondents no.2 to 4 to avoid their liability to pay the earnest money received by defendant no.2. However, cross-objections have no merit in view of the discussion made herein before. In view of above discussion, the substantial question of law framed herein above is answered accordingly in favour of plaintiff-appellant and against respondents no.2 to 4. For the reasons recorded herein above, the instant second appeal preferred by the plaintiff Dilbagh Singh is allowed partly against respondents no.2 to 4 only (legal representatives of defendant no.2). Judgments and decrees of the courts below are set aside and suit filed by R. S. A. No. 1426 of 2008 7 plaintiff-appellant is decreed partly against respondents no.2 to 4 only for recovery of Rs.3,50,000/- along with interest thereon @ 10% per annum w.e.f. 12.09.1995 till 01.08.2005 i.e. date of decree of the trial court and @ 6% per annum since 01.08.2005 till recovery. However, the appeal as against defendant – respondent no.1 stands dismissed. Cross-objections preferred by respondents no.2 to 4 are dismissed. The appellant would be entitled to proportionate cost throughout from respondents no.2 to 4. Liability of respondents no.2 to 4 to satisfy the decree shall be only to the extent of the estate inherited by them from Jagtar Singh defendant no.2. July 15, 2010 ( L. N. MITTAL ) monika JUDGE