RSA No.540 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.540 of 2008(O&M) Date of decision: 7.1.2009 Lakhwinder Singh ......Appellant Versus Duryodhan Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.S. Syan, Advocate for the appellant. Mr. I.S. Brar, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent has been decreed with costs to the effect that he is entitled to the alternative relief of recovery of Rs.2,00,000/- along with interest at the rate of 12% per annum from the date of payment of earnest money till the realization of the entire decretal amount. In brief, as per the averments of the plaintiff, the facts of the case are that the defendant-appellant being owner of the land measuring 16 kanals, fully detailed in the head note of the plaint, agreed to sell the same in favour of the plaintiff-respondent for a sum of Rs.1,60,000/- per acre (8 kanals) vide agreement to sell dated 21.7.1999 and received a sum of Rs.2,00,000/- as earnest money in the presence of the witnesses. The physical possession of the land was agreed to be delivered at the time of execution of the sale deed which was stipulated to be executed on 19.7.2002 on receipt of the remaining sale consideration. The plaintiff RSA No.540 of 2008(O&M) 2 requested the defendant to perform his part of agreement to sell dated 21.7.1999 and showed his willingness and readiness regarding remaining sale consideration and expenses for the registration of the sale deed on 18.7.2002 and the defendant assured the plaintiff to come present in the office of Sub Registrar, Patran for execution and registration of the sale deed on 19.7.2002. The plaintiff remained present in the office of Joint Sub Registrar, Patran on 19.7.2002 but the defendant did not turn up. In the evening of 19.7.2002, the plaintiff approached the defendant and enquired as to why he had not come present for performing his part of the contract but the defendant put off the matter on one pretext or the other. The plaintiff again requested the defendant through a legal notice for recognizing the right of the plaintiff in the suit property but all in vain. As such, the plaintiff claimed possession of the suit land as per terms and conditions of the agreement to sell dated 21.7.1999 and filed the present suit for decree for specific performance of the agreement to sell or in the alternative to recover earnest money of Rs.2,00,000/- along with interest at the rate of 24% per annum. Upon notice, the defendant appeared and filed written statement raising various preliminary objections. On merits, the defendant specifically denied all the averments made in the plaint and further denied that he ever entered into an agreement to sell with the plaintiff as alleged nor received any earnest money. It was further stated in the written statement that the defendant was dealing with Kahlon Trading Company, Commission Agents, Patran, a proprietorship concern of Jai Partap Singh and the defendant used to sell his crop at the aforesaid shop and after Haari 2000 when he stopped to sell his crop, said Jai Partap Singh and his Munim used to get the thumb impressions of the defendant at the time of advancement of money prior to the crop season on blank stamp papers RSA No.540 of 2008(O&M) 3 and also on blank pronotes on the pretext that the same had been taken as security of the amount and the same will be returned after clearing the amount of Commission Agent shop. Jai Partap Singh is the real nephew of the father of the plaintiff and his family members. The plaintiff through the police officials threatened to recover the amount illegally with the help of the police and on this apprehension, the defendant filed a suit against Kahlon Trading company and the State of Punjab on 31.10.2002 vide Civil Suit No.283 dated 31.10.2002 titled as Lakhwinder Singh v. Kahlon Trading company etc. which was decided on 14.2.2003. In the said suit, Jai Partap Singh made statement that he would not recover any amount except in due course of law and on his statement, the suit was dismissed as withdrawn. It was further averred in the written statement by the defendant that in fact there was no amount due against the defendant in the account books of the Kahlon Trading company and for that reason, he made statement before the Court and did not produce any account books before the Court and when the proprietor of said company did not succeed in their illegal mission of effecting recovery of illegal amount from the defendant then they got prepared a false agreement to sell by using the blank stamp papers in the name of the present plaintiff. Hence, the dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether defendant executed an agreement to sell dated 21.7.1999 in favour of the plaintiff?OPP 2. Whether the plaintiff was ready and willing and still ready and willing to perform his part of the contract?OPP 3. Whether the plaintiff is entitled to possession of the suit land by way of specific performance of the RSA No.540 of 2008(O&M) 4 agreement to sell dated 21.7.1999? OPP 4. If issue No.3 is proved, whether in the alternative, plaintiff is entitled to recovery of Rs.2,00,000/- along with interest and stipulate damages from the defendant, as prayed for?OPP 5. Whether plaintiff is entitled to permanent injunction as prayed for?OPP 6. Whether plaintiff has no cause of action to file the present suit?OPD 7. Whether suit is not within limitation?OPD 8. Whether agreement to sell dated 21.7.1999 is false, frivolous and fabricated document and is result of fraud?OPD 9. Relief.” In support of his case, the plaintiff himself appeared as PW-1 and also examined PW-2 Sukhpal Singh and PW-3 Jai Partap Singh. On the other hand, the defendant failed to lead any evidence and lastly absented himself and was proceeded against ex parte by the trial Court vide order dated 17.5.2006. The trial Court vide its judgment and decree dated 20.7.2006 observed that the case of the plaintiff remained unrebutted and unchallenged. However, it was held by the trial Court that the plaintiff is not entitled to possession of the suit land by way of specific performance of the agreement to sell dated 21.7.1999 and decreed the suit of the plaintiff for the alternative relief on recovery of Rs.2,00,000/- along with interest. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the Lower Appellate Court contending that the appellant could not lead his evidence before the RSA No.540 of 2008(O&M) 5 trial Court under compelling circumstances and therefore, he was not given proper opportunity to lead his evidence and thus, the judgment of the trial Court be set aside and case be remanded back for fresh decision on merits. The Lower Appellate Court vide impugned judgment and decree dated 23.7.2007 rejected the contentions of the appellant as aforesaid. The Lower Appellate Court also affirmed the findings of the trial Court to hold that to prove his case the plaintiff has appeared himself in the witness box and has also examined the marginal witnesses of the agreement to sell who have corroborated the version of the plaintiff to the effect that the defendant entered into an agreement to sell with the plaintiff vide agreement dated 21..7.1999 and received an amount of Rs.2,00,000/- as earnest money in the presence of marginal witnesses but the defendant failed to deliver possession of the suit property and also failed to execute the sale deed in favour of the plaintiff and that the plaintiff was still ready and willing to perform his part of the contract and accordingly dismissed the appeal. Still not satisfied, the defendant has filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the plaintiff has failed to prove his case and from the evidence placed on record by the plaintiff-respondent himself, it has been established that the agreement to sell is shrouded by suspicious circumstances and therefore, the suit of the plaintiff-respondent is liable to be dismissed. Elaborating his argument further, learned counsel has argued that even the Courts below have found that the appellant was dealing with Kahlon Trading company which is a proprietorship concern of Jai Partap Singh who is nephew of the father of the plaintiff-respondent who might have got signatures of the defendant on blank papers and might have used them against him and it is RSA No.540 of 2008(O&M) 6 a general tendency that whenever a party is given a loan, in order to secure the said loan, an agreement to sell is got executed from the other side. Thus, in view of the aforesaid observations of the Courts below, even the suit of the plaintiff-respondent for alternative relief could not be decreed as there was no evidence on record to show that any amount was advanced as loan to the appellant by the plaintiff-respondent. On the other hand, learned counsel for the respondent has supported the findings of the trial Court and has argued that no substantial questions of law arises in this appeal and the Courts below on appreciation of evidence have recorded a finding of fact that execution of the agreement to sell in question and receipt of earnest money by the appellant stands proved and therefore, the appeal is liable to be dismissed. I have heard learned counsel for the appellant. I find no force in the contentions raised by the learned counsel for the appellant. The agreement to sell in question and payment of earnest money by the plaintiff-respondent to the appellant stands proved from the evidence on record. Undisputedly, the evidence of the plaintiff has gone unrebutted. The plea taken up by the appellant in his written statement is that he used to sell his crops at the shop of Jai Partap Singh who used to get his signatures on blank papers to secure the loan advanced to him and other agriculturists and he might have used such blank papers with the connivance of the plaintiff. However, this plea of the appellant remained unproved as no evidence has been produced on record by the appellant to substantiate his aforesaid plea. The appellant has not raised any challenge to the order dated 17.5.2006 whereby he was proceeded against ex parte. Thus, it cannot be said that the appellant was not granted full opportunity to defend his case. On the other hand, the evidence produced by the plaintiff in support of his case has gone unrebutted. The Courts RSA No.540 of 2008(O&M) 7 below on the basis of evidence adduced on record, have recorded a finding of fact that the appellant executed the agreement to sell in question and received earnest money of Rs.2,00,000/- in the presence of marginal witnesses. No fault can be found in the aforesaid findings of the Courts below. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. January 7, 2009 (RAKESH KUMAR GARG) ps JUDGE