RSA No.3497 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3497 of 2010 (O&M). Decided on: July 06, 2011. Badri and another. .. Appellants VERSUS Veer Bhan and another. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.P.S.Jammu, Advocate, for the appellants. Mr.Sandeepta, Advocate, for respondent Nos.1 & 2. M.M.S. BEDI, J. Defendants have preferred this appeal against the judgment of reversal passed by the lower appellate Court. The trial Court had decreed the suit of Shiv Dayal, the purchaser having in- interest of the plaintiffs-respondents for alternative relief instead of . . . 1 RSA No.3497 of 2010 (O&M) specific performance of an agreement of sale dated 25.11.1998. It was held that the plaintiffs-respondents will be entitled to be paid sum of ` 2 lacs which had been paid as earnest money to the defendant-appellant No.1 Badri along with interest @ 6 per cent per annum from the date fixed for execution of sale deed i.e., 15.11.2001. The lower appellate Court had reversed the judgment and decree of the trial Court and decreed the suit of the plaintiffs- respondents for specific performance of the agreement of sale dated 25.11.1998, which was subsequently extended on different dates. The transfer of the land by defendant No.1-appellant in favour of defendant Nos.2 & 3, by a collusive decree was also held to be illegal, null and void. Briefly stated, the case of the plaintiff-respondent is that an agreement dated 25.11.1998, was executed by defendant No.1-appellant Badri, in favour of Shiv Dayal, the plaintiff who is now represented by his legal heirs Veer Bhan and Suresh. The agreement of sale was extended by a further agreement dated 22.11.1999, on which the date of execution of the sale deed by defendant No.1-appellant Badri was extended till 15.11.2001 by mutual consent of the parties regarding the land measuring 26 kanals being 520/5279 share of land measuring 263 kanals 19 marlas, mentioned in the heading of the paint. It was alleged by the plaintiffs-respondents that defendant-appellant No.1 Badri had transferred the land in favour of appellant Nos.2 & 3 by a judgment and decree dated 22.04.2000, titled as Dharamveer and another Vs. . . . 2 RSA No.3497 of 2010 (O&M) Badri. The plaintiff also sought consequential relief of permanent injunction to restrain the defendants-appellants from further alienating the suit land, in any manner, till final disposal of the suit. The plaintiffs-respondents claimed that defendant No.1 had received a sum of ` 1,50,000/- as earnest money and 23.11.1999 was fixed for execution of the sale deed but before the said date of execution, the period for execution of the sale deed was extended by mutual consent to 20.11.2000. On 22.11.1999, while extending the date of execution of sale deed another sum of ` 50,000/- was paid as earnest money by the plaintiff to defendant No.1. Subsequently, on 18.11.2000, the date for execution and registration of the sale deed was extended to 15.11.2001. The extension of time was permitted to defendant No.1-appellant at his request. The balance of sale consideration was to be paid on or before the execution and registration of the sale deed by defendant No.1-appellant in favour of the plaintiffs-respondents. The plaintiff claimed that he was always ready and willing to get the sale deed executed by paying the balance of the sale consideration but defendant No.1-appellant had not come forward. The plaintiff had presented himself before the Sub Registrar, Dabwali on 15.11.2001, with balance of the sale price and other incidental charges and got his presence marked by way of affidavit indicating the readiness and willingness on the part of the plaintiff to get the sale deed executed but defendant No.1-appellant continued to get extensions for execution and registration of the sale deed knowing well that he had already transferred the suit land in . . . 3 RSA No.3497 of 2010 (O&M) favour of his sons who are appellant Nos.2 & 3. The defendant No.1, from the very beginning had an intention to deceive the plaintiffs. Defendant No.1-appellant transferred the ownership of the land agreed to be sold in favour of his sons vide judgment and decree dated 22.04.2000 in a civil suit titled as Dharamveer and another Vs. Badri. Defendant-appellant Nos.2 & 3 were minors, as such they were impleaded as party through their father being the transferees during pendency of the case. The defendants-appellants have, in their written statement, denied the execution of the agreement of sale and the further extension of time. It was denied that the defendants have received sum of `1,50,000/- or ` 50,000/- subsequently. The lower appellate Court, on appreciation of evidence, had arrived at a finding of fact regarding the execution of the agreement of sale in favour of the plaintiff on 25.11.1998. The lower appellate Court had also given a finding of fact that agreement EX.PW5/B dated 25.11.1998, which was further extended was originally drafted by Shri Y.K.Sharma, Advocate, PW.5. The said document was affirmed vide subsequent writing dated 25.11.1999 which was executed by Shri Y.K.Sharma, Advocate as EX.PW5/C. The writing dated EX.PW6/B was written by Sh.S.L.Sachdeva, Advocate. He also proved the extension of the time for execution of the sale deed by writing dated 15.11.2001. The trial Court, on appreciation of evidence, held the agreement of sale dated 22.11.1999, stands proved but the trial Court seems to have not given any reason for not granting the relief of specific performance. . . . 4 RSA No.3497 of 2010 (O&M) In case the trial Court desired to grant the alternative relief of refund of the earnest money instead of granting the relief of specific performance in view of the provisions of Section 20 of the Specific Relief Act. The judgment in favour of the plaintiffs-respondents for alternative relief was challenged by the them before the lower appellate Court. The lower appellate Court has modified the judgment and decree of the trial Court and has given a direction to all the defendants to get the sale deed executed and registered regarding the suit land within a period of 3 months after receiving the balance of the sale consideration from the plaintiffs in view of agreement of sale having been proved by cogent evidence on the record. Learned counsel for the defendants-appellants argued that the agreement of sale was executed on 25.11.1998 which was extended by an agreement dated 22.11.1999, on receipt of additional amount of ` 50,000/-. It was extended to 20.11.2000 and further to 15.11.2001 by mutual consent of the parties. The plaintiffs had served a legal notice on 25.03.2004 upon the defendant-appellant No.1, to execute the sale deed and the suit was filed on 28.08.2004, indicating that the plaintiff was not ready and willing to perform his part of the contract and had delayed the matter. It was argued that the plaintiff has not been able to prove that he had been ready and willing to perform his part of the contract. In view of the said circumstance, the trial Court had rightly decreed the suit for alternative relief for refund of the money with interest. It was . . . 5 RSA No.3497 of 2010 (O&M) contended that there had been a delay of 6 years in filing of the suit. Non-filing of the suit within reasonable time would dis-entitle the plaintiff to seek the relief of specific performance. An unfair advantage would be obtained by the plaintiff over the defendants and it will be a case of hardship which will be caused to the defendants- appellants in case the judgment and decree for specific performance is not set aside and converted into a money decree. I have heard the counsel for the plaintiffs- appellants, at length, and considered the contentions carefully. The short question which is required to be determined in the present case is whether in view of the concurrent finding of fact given by the Courts below regarding the execution of the agreement of sale having been validly executed by defendant No.1-appellant in favour of plaintiffs-respondents dated 25.11.1998, the relief of specific performance should be granted or alternative relief of refund of earnest money with interest should be granted? It was argued that substantial question of law is involved in the appeal and it was required to be determined by this Court whether lower appellate Court could interfere in the judgment passed by the trial Court regarding refund of the earnest money along with interest and whether the plaintiff-respondent could be said to be ready and willing to perform his part of the contract by paying the balance of the sale consideration especially when the agreement of sale had been extended four times and the civil suit was filed in the year 2004 after a gap of 6 years. . . . 6 RSA No.3497 of 2010 (O&M) I have taken into consideration the facts of this case. The extension of time to execute the sale deed had been sought by defendant-appellant No.1 on receipt of additional earnest money despite the fact that the property has been transferred by way of a collusive decree in favour of his sons, defendant-appellant Nos.2 & 3. The trial Court while granting the alternative relief had not mentioned any circumstance bringing the case within the parameters of Section 20 of the Specific Relief Act. Merely because there has been a delay in filing of the suit because of the extension of time sought for by the defendant-appellant No.1 that too on receipt of additional money out of balance of the sale consideration is not a sufficient ground to grant the alternative relief. In the present case, the extension of time had been sought by none else but by the defendant-appellant No.1 to execute the sale deed. The plaintiff cannot be penalised for the delay which had been caused for the period which had elapsed between the agreement of sale and the date of filing of the suit. The said circumstance does not, in any manner, indicate that the plaintiff-respondent was not ready and willing to perform his part of the contract. No substantial question of law is involved as such, the present appeal is dismissed. (M.M.S.BEDI) JUDGE July 06, 2011. rka . . . 7