RSA No.1018 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1018 of 2010(O & M) Date of Decision:08.03.2010 Rajesh Kumar .... appellant Versus Kusum Lata & anr .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.V.K.Jindal,Advocate for the appellant **** RAKESH KUMAR GARG J.(ORAL): This is plaintiff's second appeal challenging the judgement and decree of the Lower Appellate Court, whereby appeal filed by defendant-respondent has been accepted and judgement of the trial Court in a suit for specific performance for the agreement to sell has been modified to the extent of holding the appellant entitled to the refund of earnest money along with interest declining the relief of specific performance of the agreement in question. As per the averments made in the suit, defendant/respondent No.1 entered into an agreement to sell dated 29.07.2005 in respect of plot No.483, Sector 7, Urban Estate, Panipat for a total sale consideration of Rs.3,15,000/- and received a sum of Rs.1 lac from the plaintiff-appellant as earnest money in the presence of witnesses. According to the plaintiff-appellant, the last date for registration of the sale date was fixed as 30.10.2005. The appellant was always ready and willing RSA No.1018 of 2010(O & M) 2 to get the sale deed executed and registered in his favour but respondent No.1 prolonged the matter on the pretext that she would get the sale deed executed and registered on the fixed date. As per the terms and conditions of the agreement to sell the plaintiff remained present in the office of Sub- Registrar, Panipat on 31.10.2005(30.10.2005 being Sunday) along with the balance sale consideration and expenses. However, respondent No.1 did not turn up for execution and registration of the sale deed. Thereafter, appellant served a legal notice dated 05.11.2005 upon respondent No.1 requesting him to get the sale deed executed and registered in his favour but to no effect. Hence this suit. Upon notice, defendants appeared and filed their separate written statement. In his written statement, respondent No.1 raised various preliminary objections. On merits, it was admitted that he was allotted plot in question. Agreement to sell in question was denied. It was further submitted that she had not executed the agreement to sell in question with her consent but the same was got signed by the plaintiff and the attesting witnesses by putting force upon her. The above said persons got her signatures on some blank as well as printed papers which were not read by her as she knew only writing her name. It was also pleaded that she did not receive any amount as earnest money. It was further pleaded that after receiving summons from the Court she verified from respondent No.2 and came to know that the plot allotted to her could not be sold till the payment of full price of the same to respondent No.2. All other averments made in the plaint were controverted and dismissal of the suit was prayed for. In the written statement filed on behalf of respondent No.2, it was admitted that respondent No.1 was the allottee of plot in question vide memo No.2431 dated 08.04.2003, but, the aforesaid respondent had no right to transfer the plot in question. The transfer could be effected only subject to the provisions contained in the transfer policy and by seeking the RSA No.1018 of 2010(O & M) 3 necessary permission. But neither the plaintiff nor defendant No.1 ever brought the alleged agreement in question in the knowledge of respondent No.2. The alleged agreement was denied for want of notice. All other averments of the plaint were controverted and dismissal of the suit was prayed for. On the basis of the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the defendant No.1entered into an agreement to sell dated 29.07.2005 with respect to plot No.483, Sector 7, Urban Estate, Panipat measuring 6 marlas owned by her for a total sale consideration for amount of Rs.1,35,000/- and whether a sum of Rs.1,00,000/- was also paid to defendant No.1 as earnest money? OPP 2. Whether the plaintiff was always willing and ready to perform his part of agreement whereas defendant No.1 did not get executed a sale deed of her plot in favour of the plaintiff in terms of agreement to sell dated 29.07.2005?OPP 3. In case, issue No1 and 2 are decided in favour of the plaintiff, then whether plaintiff is also entitled to decree for specific performance of contract dated 29.07.2005 in accordance with law and also decree for possession of the suit property as detailed in para No.1 of the plaint on payment of balance sale consideration?OPP 4. Whether the plaintiff is not entitled to relief of injunction as prayed for? OPD 5. Whether the suit filed by the plaintiff is not maintainable in the present form?OPP RSA No.1018 of 2010(O & M) 4 6. Whether disputed agreement to sell dated 29.07.2005 was not executed by answering defendants on her own will and the same is based on coercive and undue influence and fraud?OPD 7. Relief. After hearing learned counsel for the parties and appreciating the evidence led by the parties, trial Court decided all the issues in favour of the plaintiff and against the defendants and decreed the suit as under: “It is ordered that a decree for possession by way of specific performance of the agreement to sell dated 29.07.2005 is hereby passed in favour of the plaintiff and against the defendants along with the cost of the suit to the effect that the plaintiff shall make the payment of remaining sale consideration to defendant No.1 after adjusting the remaining instalments with the office of defendant No.2 within a period of one month from today. Interest on the delayed payment of the instalments shall be paid by the plaintiff. After making the aforesaid payment, the defendant No.2 shall transfer the plot in the name of the plaintiff as per rules and regulations within a period of one month thereafter. The transfer charges shall be paid by the plaintiff. If defendant No.2 fails to transfer the plot in dispute in favour of the plaintiff within the aforesaid period in that case the plaintiff shall be entitled to get the same transfer through the Court. Plaintiff is also entitled for the cost of the suit.” Aggrieved from the aforesaid judgement and decree of the trial Court, respondent No.1 filed an appeal challenging the judgement and RSA No.1018 of 2010(O & M) 5 decree of the trial Court. Along with the appeal, respondent No.1 also moved an application under Order 41 Rule 27 for adducing additional evidence. However, the aforesaid application was not pressed during the course of argument and the same was rejected. Before the Lower Appellate Court, respondent No.1 raised an argument that in view of the conditions of allotment letter dated 08.04.2003(Ex.D-1) the plot in question could not be alienated till the full payment was made to defendant No.2(respondent No.2) except with the prior permission of defendant No.2 and thus the Court could not grant specific performance of the agreement to sell in question and at the most plaintiff-appellant was entitled for refund of the earnest money with interest. The Lower Appellate Court after noticing the terms and conditions of the allotment letter and the fact that neither the full payment of the price of the plot in question was paid to HUDA nor prior permission of the competent authority for the sale of the plot was sought, held that the agreement in question was in violation of the terms and conditions of allotment letter and therefore the specific performance of the same could not be granted and further held that plaintiff was entitled to refund of earnest money of Rs.1 lac and interest at the rate of 9% per annum from the date of execution of the agreement to sell till its actual realisation. Thus, the appeal was accepted in the aforesaid terms and decree of the trial Court was modified, accordingly. Not satisfied with the aforesaid judgement and decree of the Lower Appellate Court, the plaintiff has approached this Court by filing the instant appeal. Learned counsel for the appellant has vehemently argued that the Lower Appellate Court has totally misinterpreted and misread the terms and conditions of the allotment letter as there was no such bar in the allotment letter that the allottee cannot transfer, alienate, mortgage the plot RSA No.1018 of 2010(O & M) 6 in question. According to the learned counsel for the appellant, as per the terms and conditions of the allotment letter, the plot in question was transferable after adopting due procedure regarding permission and payment of instalments etc. and once the agreement to sell in question is not challenged, the appellant cannot be non-suited on the ground of non- payment of balance amount payable to HUDA and therefore the judgement and decree of the Lower Appellate Court was erroneous and liable to be set aside. On the basis of said argument learned counsel for the appellant raised the following questions for consideration of this Court: 1. Whether the allotment letter Ex.D-1 has been misconstrued and misread by the Lower Appellate Court? 2. Whether the judgement and decree of the Lower Appellate Court are perverse? 3. Whether the plot in question was transferable subject to the total payment and permission of HUDA authorities? 4. Whether respondent No.1 could not enter into an agreement to sell without making payment of balance payment of HUDA/respondent No.2? I have heard learned counsel for the appellant and perused the impugned judgement and decree. Admittedly, respondent No.1 was allotted the plot in question by respondent No.2 vide allotment letter No.2431 dated 08.04.2003 on the terms and conditions mentioned in the aforesaid allotment letter. Condition No.12 which is relevant reads as follows: “The land building shall continue to belong to the authority until the entire consideration money together with interest and other amount if any, due to the authority on account of sale of such land or building or both is paid. You shall have no right to transfer by way of sale, gift, mortgage or RSA No.1018 of 2010(O & M) 7 otherwise the plot/building or any right, title or interest therein till the full price is paid to the authority, except with the prior permission of the competent authority.” Admittedly, till date neither the full payment of the plot price has been paid to the authorities nor prior permission of the competent authority for the sale of the plot was sought. In view of the aforesaid condition as reproduced above, respondent No.1 could transfer the plot in question after paying the full price of the plot or with the prior permission of the competent authority. Admittedly, neither the full payment of the price of the plot has been made to respondent No.2 nor any permission for the sale of the same to the plaintiff has been sought. It may also be relevant to mention, at this stage, that the ownership of the plot in question was to remain with the HUDA until the entire amount due to the aforesaid authority on account of the sale was paid. Once the lien of HUDA over the plot in question was not discharged the same could not be transferred to the appellant in pursuance to the agreement to sell in question without permission of the competent authority. It may also be noticed that it is not the case of the plaintiff- appellant that he had requested respondent No.1 to make the full payment of the sale price of the plot in question to the authorities or to make any application for permission to sell the same to him. Moreover, grant of decree for specific performance of contract is a discretionary relief. No doubt, the discretion has to be exercised judiciously and not arbitrarily. But in the present case, it cannot be argued on behalf of the appellant that the Lower Appellate Court has denied the appellant's relief of specific performance of the agreement in question without any reason and is not based on any sound and reasonable principles. No other point was urged. Thus, I find no merit in this appeal. RSA No.1018 of 2010(O & M) 8 No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 08.03.2010 neenu