IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.4809 of 2009 (O&M) Date of Decision:02.12.2010 Jai Parkash .....Appellant Vs. Smt. Harbans Kaur and another .....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Adarsh Jain, Advocate for the appellant. Mr. Kul Bhushan Sharma, Advocate for respondent No.1. Mr. Vaneet Soni, Advocate for respondent No.2. **** RAKESH KUMAR GARG, J. (Oral) This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby in a suit for specific performance of the agreement in question, alternative relief of recovery of double the amount of earnest money was granted to him instead of a decree for specific performance of the agreement in question. As per the averments made in this petition, defendant- respondent No.1 agreed to sell the suit property in favour of appellant on 18.6.2004 and received a sum of Rs.2 lacs as earnest money. The said agreement to sell was reduced into writing and as per the terms and conditions, the sale deed was to be executed within 60 days from the aforesaid date of agreement and the remaining sale price was to be paid at the time of the execution and registration of the sale deed. However, respondent No.1 sent a registered letter dated 13.7.2004 to the plaintiff- R.S.A. No.4809 of 2009 (O&M) -2- appellant and alleged that she was unable to execute the sale deed as per the agreement because her children did not want to sell the plot in dispute and she further requested the appellant to take back the earnest money. It is further case of the appellant that he sent a notice along with reply of the said letter through his counsel on 30.7.2004 and demanded the transfer of the suit property by asking defendant No.1 to come present on 16.8.2004 in the office of Sub Registrar to execute the sale deed. He was present on the stipulated date before the Sub Registrar along with the balance sale price and expenses etc., but the defendant failed to turn up. Hence, the present suit. Defendant -respondent No1. contested the suit and filed written statement controverting the case of the appellant. Execution of the agreement to sell in question and receipt of Rs.2 lacs as earnest money was admitted. However, the other averments as alleged were denied and it was further stated that she was ready to pay double the amount of earnest money as per the agreement and that she had already informed the appellant vide her letter dated 13.7.2004 regarding the decision of the family as the sale of plot in dispute would cause hardship and injury to her which in any way cannot be compensated in terms of money. It was further submitted by her that as per the agreement, she was bound to pay liquidated damages to the tune of double of the earnest money and she also got prepared a draft of Rs.4 lacs and offered the same to the appellant. Dismissal of the suit was prayed for. Defendant No.2 had filed separate written statement controverting the case of the plaintiff. From the pleading of the parties, the following issues were R.S.A. No.4809 of 2009 (O&M) -3- framed:- 1. Whether the plaintiff is entitled to get the possession of the suit land by way of specific performance of contract?OPP 2. Whether the present agreement dated 18.6.2004 is not liable to be enforceable in view of provision contained u/s 14(a) and 14(c) of Specific Relief Act, 1963?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the suit is bad for want of concealment of material facts by the plaintiff from the court?OPD 5. Whether the plaintiff has no cause of action to file the present suit?OPD 6. Relief. On appreciation of evidence and after hearing learned counsel for the parties, the trial court partly decreed the suit of the plaintiff- appellant for recovery of Rs.4 lacs and held that the appellant was not entitled to specific performance of the agreement in question. Appeal filed by the plaintiff- appellant against the aforesaid judgment and decree of the trial court was also dismissed by the lower appellate court vide impugned judgment and decree dated 19.8.2009. Still not satisfied, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:- i) Whether upon the admission of execution of agreement to sell, the plaintiff/appellant was not entitled to specific R.S.A. No.4809 of 2009 (O&M) -4- performance of the agreement to sell? ii) Whether offer to pay double the amount of earnest money was sufficient to refuse specific performance of agreement to sell? iii) Whether misreading of the provisions of Section 14, 20, 23 of the Specific Relief Act has not caused a miscarriage of justice? iv) Whether the learned courts have not misread and misconstrued the evidence produced on record and whether the same is not a perverse approach and has rendered the impugned judgment and decree to be illegal? v) Whether in the facts and circumstances of the case the judgment and decree passed by the learned courts are not illegal and unsustainable in law? In support of his case, learned counsel appearing on behalf of the appellant has vehemently argued that in view of the provisions of Section 23 of the Specific Relief Act, 1963, the plaintiff- appellant cannot be denied the relief of specific performance of the agreement in question, the execution of which is not in dispute, merely because in the aforesaid agreement, the condition of relief of specific performance of the agreement is not mentioned. The contention of the learned counsel for the appellant is that provisions of damage or compensation in the agreement itself is not a ground to refuse specific performance of the agreement as bare perusal of the provisions of Section 23 of the Act makes it clear that if a sum in question is mentioned in the agreement to be paid in case of its breach and R.S.A. No.4809 of 2009 (O&M) -5- the party, in default is willing to pay the same, the contract may still be specifically enforced provided the Court is satisfied from the terms of the contract and other attending circumstances that the sum mentioned in the agreement was only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance. In support of his argument, learned counsel for the appellant has also relied upon judgments of Hon'ble the Surpeme Court in the case of P.D'Souza v. Shondrilo Naidu, 2004(3) R.C.R. (Civil) 668 and P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi and another, 2007(2) R.C.R. (Civil) 290. On the other hand, Shri K.B. Sharma, Advocate learned counsel appearing on behalf of the respondent has refuted the arguments raised by learned counsel for the appellant and submitted that the aforesaid judgments cited by the learned counsel for the appellant are distinguishable and were on its own facts and are not applicable in the present case. It has been also pointed out by learned counsel for the respondent that both the Courts below after satisfying themselves from the terms of the contract and other attending circumstances and keeping in view the hardship of the defendant- respondent have refused to grant the specific performance of the agreement to the appellant which is in consonance with the provisions of Section 20 of the Specific Relief Act, 1963 and thus no fault can be found with the impugned judgments and decrees of the Courts below. I have heard the learned counsel for the parties and perused the impugned judgments and decrees of the Courts below. The facts of the present case are not in dispute. Admittedly, R.S.A. No.4809 of 2009 (O&M) -6- defendant- respondent agreed to sell the suit property vide agreement in question, however, it is also an admitted fact that vide letter dated 13.7.2004, she immediately sent the intimation to the appellant that she was not ready to execute the sale deed as her married daughters and other family members were against the sale. It is also not in dispute that on receipt of the letter dated 30.7.2004 written by the appellant asking her to execute the sale deed, she again wrote back to the appellant on 14.8.2004 (Ex.DW1/7) that she was ready to pay him Rs.4 lacs, i.e., double the earnest money as agreed in the agreement. Not only this, it has also come on record that she had also asked the appellant to collect the payment vide draft bearing No.132480 dated 14.8.2004 drawn on Bank of Punjab Limited, Alaknanda, New Delhi amounting to Rs.4 lacs and she also sent a telegram to the appellant. It may also be noticed that the defendant- respondent in her written statement while admitting the execution of agreement in question has taken a specific stand that she was ready to pay double the amount of earnest money as per the agreement, as the sale of plot in dispute would cause hardship and injury to her which in any way cannot be compensated in terms of money as the family circumstances existing in her family were very peculiar in nature and could be disastrous. Thus, keeping in view the aforesaid specific pleadings of the defendant- respondent and the overwhelming evidence on record, to establish these facts, it cannot be said that while denying the relief to the appellant, the Courts below have erred in law. There is no dispute with the proposition of law as canvassed by the learned counsel appearing on behalf of the appellant on the basis of the provisions of Section 23 of the Specific Relief Act, however, it is equally well settled that under Section 20 of the R.S.A. No.4809 of 2009 (O&M) -7- Specific Relief Act, it is the discretion of the Court either to grant or refuse the specific performance of the agreement in question even if it is lawful to do so and the relief can be denied. Keeping in view the facts and circumstances of the case, it is not a case where it can be argued that the discretion exercised by the Courts below under Section 20 of the Specific Relief Act, 1963 was arbitrary in any manner. In view of the aforesaid facts and circumstances of the case, I find no merit in this appeal as no substantial question of law, as argued, arises. Dismissed. December 02, 2010 ( RAKESH KUMAR GARG ) renu JUDGE