RSA No. 3767 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3767 of 2010 (O&M) Date of decision: 02.11.2011 Gurdeep Singh ……Appellant/Defendant Versus Kuljinder Singh …….Respondent/Plaintiff CORAM : HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Pankaj Katia, Advocate, for the appellant. Mr. Deepak Aggarwal, Advocate, for the respondent. ***** A.N. Jindal, J. This appeal is directed against the judgment & decree dated 06.05.2010 passed by the District Judge, Bathinda, accepting the appeal preferred by the plaintiff-respondent (hereinafter referred as ‘the plaintiff’) against the judgment and decree dated 02.12.2009 passed by the Civil Judge (Senior Division), Bathinda, partly decreeing the suit of the plaintiff for specific performance of contract and granting alternative relief for recovery of ` 1,10,000/- (i.e. earnest money) along with interest at the rate of 9% per annum from the date of payment till the date of actual realization. Factual background of the case is that on 19.09.2002, the defendant being owner of the land measuring 5 Kanals 9 Marlas, as fully detailed in the head note of the plaint, agreed to sell the same in favour of 1 RSA No. 3767 of 2010 (O&M) the plaintiff for a sum of ` 1,36,250/- i.e. at the rate of ` 2,00,000/- per acre and executed an agreement to sell in this regard. The defendant also received a sum of ` 1,10,000/- as earnest money from the plaintiff. The sale deed was to be executed on or before 15.06.2003. However, on 12.06.2003, the date for execution of the sale deed was extended up to 02.07.2003 with mutual consent of the parties. On 02.07.2003, the plaintiff, along with the balance sale consideration and other expenses, had visited the office of Sub Registrar, Bathinda, in order to execute the sale deed, but the defendant failed to turn up. The plaintiff got his presence marked by moving an application before the Sub Registrar. Thereafter, plaintiff served a notice dated 22.08.2003 upon the defendant through his counsel, asking him to execute the sale deed, but the defendant failed to come forward. It was also averred that the plaintiff had always been remained ready and willing to perform his part of the agreement. Upon notice, the suit was contested by the defendant by filing the written statement, in which, he denied having agreed to sell the suit land in favour of the plaintiff. It was alleged that the agreement of sale in question was the result of fraud, forgery, fabrication and cheating made with the defendant in connivance with the scribe and the marginal witnesses of the agreement. Receipt of earnest money amounting to ` 1,10,000/- from the plaintiff was denied. It was also denied that the date of execution of the sale deed was extended. The defendant had also raised legal objections regarding maintainability of the suit, locus standi and cause of action for filing the suit. From the pleadings of the parties, following issues were framed by the trial Court:- 2 RSA No. 3767 of 2010 (O&M) “1. Whether defendant executed an agreement for sale dated 19.09.2002 to sell land measuring 5 Kanals 9 Marlas in favour of plaintiff, if so, what were terms and conditions? OPP 2. Whether the plaintiff remained ready and willing to perform his part of agreement? OPP 3. Whether the suit is within limitation? OPD 4. Whether agreement to sell stood repudiated on 15.06.2003 on the part of defendant? OPD 5. Whether the agreement to sell is a false, forged and fabricated document? OPP 6. Whether plaintiff is entitled to the alternative relief of ` 2,20,000/- alongwith 18% interest per annum as alleged? OPP 7. Whether suit is not maintainable? OPD. 8. Whether plaintiff has got no locus standi and cause of action to file the present suit? OPD 9. Whether defendant is entitled to special compensatory costs under Section 35-A CPC, if so, to what extent? OPD 10. Relief.” Both the parties led evidence. The trial Court partly decreed the suit of the plaintiff in the aforesaid terms. However, the first Appellate Court vide judgment dated 06.05.2010, while accepting the appeal of the plaintiff, modified the judgment and decree of the trial Court to the extent that the plaintiff is entitled to the specific performance of the agreement of sale dated 19.09.2002. The defendant was directed to execute sale deed in favour of the plaintiff after receiving the balance sale consideration from him, which the plaintiff would deposit with the trial Court within a period of two months. Aggrieved against the said judgment, the defendant has filed the present second appeal. Learned counsel for the appellant-defendant has contended that actually, the agreement in question was not for sale of the suit property, but a money transaction; the execution of the agreement has not been properly proved and the plaintiff has also failed to prove his readiness and 3 RSA No. 3767 of 2010 (O&M) willingness to perform his part of the contract, therefore, the judgment passed by the first Appellate Court, is not correct. Having considered the contentions raised by both the parties, it may be observed that the agreement dated 19.09.2002, Ex.P1, has been duly proved on the record. As per terms of the agreement to sell, the sale deed was to be executed on or before 15.06.2003, but before the expiry of the period of execution of the sale deed, a writing Ex.P1/A, was executed for extending the time up to 02.07.2003. The plaintiff has led sufficient evidence on the record to prove that he has always been ready and willing to perform his part of the contract, but the defendant has failed to establish, if he ever appeared before the Sub Registrar on 02.07.2003. But, to the contrary, the plaintiff has duly established that he appeared before the Sub Registrar on the date fixed and moved the application, Ex.P2, over which, the Sub Registrar had recorded his endorsement, Ex.P3, as proved by Smt. Paramjit Kaur (PW-5). The evidence led by the plaintiff clearly reveals that the earnest money of ` 1,10,000/- was given by him to the defendant. A notice, Ex.P5, was also issued to the defendant, but it was not properly responded. There is no force in the contention of the defendant that the plaintiff was not in a position to pay the amount of remaining sale consideration for getting the sale deed executed in his favour. Though, Kuljinder Singh-plaintiff has stated that he used to earn ` 15,000/- to 18,000/- per month from agriculture, yet it cannot be said that he could not arrange the balance sale consideration. If he could pay ` 1,10,000/- to the defendant as earnest money, then it was not difficult for him to pay the remaining sale consideration of ` 26,250/-. It is also established from the record that it was never a money transaction, as agreement was executed on 19.09.2002, according to which, the date for execution of the sale deed was 4 RSA No. 3767 of 2010 (O&M) fixed as 15.06.2003 and thereafter, as per writing, Ex.P1/A, the date was extended to 02.07.2003. The defendant has failed to lead any such evidence, from where, it could be established that it was a simple money transaction. No substantial question of law arises for determination by this Court. Resultantly, finding no merit in the appeal, the same is hereby dismissed. (A.N.Jindal) November 2, 2011 Judge ajp 5