R.S.A. No. 1923 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1923 of 2010(O&M) Date of Decision: 21.9.2010. Hira Singh and another ....Appellants Versus Vakil Chand and another ...Respondents CORAM : Hon'ble Mr. Justice Rakesh Kumar Garg Present:- Mr. G.S. Sidhu, Advocate for the appellants. RAKESH KUMAR GARG, J This is defendants' regular second appeal challenging the judgments and decrees of the Courts below whereby the suit of the plaintiffs/respondents for agreement to sell in question was decreed for alternative relief of refund of earnest money. Respondents filed a suit for possession by way of specific performance of the agreement dated 7.9.2005 alleging that appellants who are co-sharers agreed to sell the suit land for a consideration of Rs. 12,00,000/- and received the earnest money of Rs. 4,00,000/- in the presence of witnesses and the sale deed was agreed to be executed upto 31.12.2005. It was further averred that the plaintiffs were ready and willing to perform their part of the agreement and were present before the Sub Registrar on the stipulated date with the balance sale consideration and expenses but the appellants failed to turn up. Hence the present suit. In the written statement execution of agreement in question and receipt of Rs. 4,00,000/- as earnest money was admitted. However, it was further averred that the plaintiffs-respondents themselves were not ready and willing to perform their part of the contract as the remaining consideration amount was not available with them. It was further averred that the sale deeds were registered only on Thursdays at Sub Tehsil office Jhunir and for this reason the defendants were present in the office of Sub Registrar, on 29.12.2005 R.S.A. No. 1923 of 2010 2 instead of 31.12.2005 for executing sale deed in favour of the plaintiffs, who did not turn up, as the remaining consideration was not available with them. On 2.1.2006 again the defendants remained present in the office of Sub Registrar, Jhunir but the plaintiffs did not turn up and since the plaintiffs themselves violated the terms and conditions of the agreement to sell, therefore, the earnest money paid by them has been forfeited. Rest of the allegations in the plaint were denied and dismissal of the suit was prayed. After hearing the counsel for the parties and after going through the record, the Trial Court vide impugned judgment, decreed the suit of the plaintiffs- respondents for alternative relief of recovery of Rs. 4 lacs with proportionate costs and interest @ 12% p.m. from the date of agreement to sell till its realization and relief of specific performance of agreement to sell was denied. Aggrieved by the aforesaid judgment, the appellants filed an appeal before the lower Appellate Court which was also dismissed. While dismissing the appeal, the lower Appellate Court observed as under:- “Vakil Chand and Vinod Kumar plaintiff- respondents filed suit for specific performance of the agreement to sell dated 7.9.2005 against Hira Singh and Murti Devi defendant-appellants. The learned lower Court in its wisdom refused to grant a decree of specific performance of the agreement to sell, but granted a decree for recovery of Rs. 4,00,000/- which were advanced to the defendant- appellants at the time of agreement to sell. Feeling aggrieved, defendants-appellants have filed the present appeal that the suit of the plaintiffs should have been dismissed in toto as due to lapse on the part of the plaintiffs, since they were not ready and willing to perform their part of the contract, their earnest money stood forfeited. It has come on record that the plaintiffs remained ready and willing to perform their part of agreement to sell. However, the plaintiffs could not get the sale deed executed and registered since the Civil Court has passed an order restraining defendant Murti Devi from alienating her share in land measuring 47 kanals 8 Marlas including the suit land in civil suit titled as “Sanjeev Kumar Vs. Murti Devi”, as was found apparent from the note in the remarks column of copy of R.S.A. No. 1923 of 2010 3 jamabandi for the year 2002-2003, Ex.P-8, in this regard. When one of the plaintiffs was restrained from alienating the land which included the suit land, the plaintiffs were prevented by lawful order of the Civil Court not to alienate the property in dispute. Had they executed the sale deed they would have made themselves liable for contempt of Court. Thus, the plaintiffs were forced by circumstances and they were duty bound to obey the order/direction of the Civil Court. If the defendants remained ready and willing to perform their part of the contract and they got themselves marked present in the office of Joint Sub Registrar, Jhunir, it hardly matters. Thus, under compulsion of the order of the Court, the plaintiffs could not execute the sale deed in favour of the defendants and in these circumstances question of their not remaining ready and willing to perform their part of the contract does not arise. As a consequence of it, the learned lower Court rightly passed a decree of recovery of Rs. 4,00,000/- alongwith interest, which was the alternative relief claimed by the plaintiffs and there is nothing wrong in it. The authority quoted by the learned counsel for the appellants is not applicable to the facts of the present case. In these circumstances, I do not find any error or illegality in various findings arrived at by the learned lower Court and the same are affirmed.” Still not satisfied the defendants are before this Court by way of instant appeal. I have learned counsel for the appellants and perused the impugned judgments and decrees of Courts below. The agreement to sell in question and passing of the earnest money is not in dispute. Both the Courts below on appreciation of evidence have recorded a finding of fact that plaintiffs/respondents were ready and willing to perform their part of the contract and were present before the Sub-Registrar with the balance sale consideration and expenses etc but the appellants- defendants failed to execute the sale deed on account of having been restrained by Civil Court from alienating the suit land. Learned counsel for the appellants could not dispute the aforesaid facts established on the record. In this view of the matter, no substantial question of law arises in R.S.A. No. 1923 of 2010 4 this appeal and the same is dismissed in limine. (RAKESH KUMAR GARG) 21.9.2010. JUDGE Reema