RSA No.3478 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3478 of 2008 Date of decision: 10.11.2008 Joginder Singh ......Appellant Versus Baljinder Kaur ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.K. Khunger, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby while, dismissing the appeal filed by the Baljinder Kaur-defendant, the Lower Appellate Court has modified the judgment and decree of the trial Court and has held that instead of specific performance of agreement to sell Ex.P-1 the plaintiff- appellant is entitled to a money decree in the sum of Rs.35,000/- with costs and with interest at the rate of 9% per annum with effect from the date of execution of the agreement to sell Ex.P-1 till its realization. Briefly stated, the plaintiff-appellant filed a suit for specific performance of agreement to sell dated 21.5.1999 against the defendant- respondent alleging therein that the defendant-respondent agreed to sell the suit land in favour of the plaintiff-appellant for a sum of Rs.35,000/- and after receiving earnest money in the sum of Rs.30,000/-, the defendant executed an agreement to sell dated 21.5.1999 in favour of the plaintiff in the presence of its scribe and attesting witnesses. The sale deed was to be executed and got registered by the defendant on or before 25.6.1999 after receiving the balance sale price of Rs.5,000/-. The plaintiff also RSA No.3478 of 2008 2 alleged that he was always ready and willing and is still ready and willing to perform his part of the contract. However, the defendant-respondent backed out from the agreement. Hence, the suit. The suit was contested by the defendant-respondent by filing her written statement wherein she denied having agreed to sell the suit land in favour of the plaintiff and has denied having executed any agreement in favour of the plaintiff. She also denied having received any earnest money as alleged by the plaintiff and with these denials prayed for the dismissal of the suit with costs. After hearing the parties and going through the pleadings, the trial Court decided all the issues in favour of the plaintiff and consequently vide judgment and decree dated 5.4.2008 decreed the plaintiff's suit for specific performance of the agreement to sell dated 21.5.1999 (Ex.P-1) and directed the defendant-respondent to execute the sale deed in terms of the agreement in favour of the plaintiff on receipt of balance sale consideration failing which the appellant was entitled to get the decree executed through the Court. Aggrieved by the aforesaid judgment and decree dated 5.4.2008 passed by the trial Court, the defendant filed an appeal. While dismissing the appeal vide impugned judgment and decree dated 13.8.2008, the Lower Appellate Court modified the judgment and decree of the trial Court by moulding the relief ie. instead of specific performance of agreement to sell Ex.P-1, the appellant was held entitled to the alternative relief of money decree. Not satisfied with the judgment and decree of the Lower Appellate Court, the plaintiff filed the present appeal in this Court. Mr. A.K. Khunger, learned counsel for the appellant has vehemently argued that the Lower Appellate Court has erred in law while RSA No.3478 of 2008 3 moulding the relief to grant alternative relief of money decree in favour of the plaintiff and denying the decree of specific performance of agreement to sell Ex.P1 as granted by the trial Court in favour of the appellant. Elaborating further his argument, learned counsel for the appellant has argued that there was no reason for the Lower Appellate Court to mould the relief as it has been proved on record that the plaintiff-appellant was ready and willing and is still ready and willing to perform his part of the contract and only a sum of Rs.5,000/- was to be paid by him which was not a big amount and therefore, the findings of the Lower Appellate Court in this regard are liable to be set aside. I have heard learned counsel for the appellant and perused the record. I find no force in the contentions raised by him. While passing the impugned judgment and decree, the Lower Appellate Court observed as under:- “The readiness and willingness to perform his part of the contract is necessarily to be proved by the vendee plaintiff Joginder Singh by leading cogent and convincing evidence. The suit was filed by the plaintiff before the learned Lower Court without affixing the court fee/stamp duty and he could make up the deficiency of court fee only after obtaining three adjournments for the purpose, which shows that at the time of filing the suit the plaintiff did not have money with him even to affix the court fee. The cross examination of the plaintiff Joginder Singh as PW2 can be referred to, where he has stated that on the stipulated date, when he went to the Sub Registrar Office for getting the sale deed registered, he had got only Rs.400-500/- with him. He was unable to RSA No.3478 of 2008 4 tell as to how much money he had with him when he filed the suit for specific performance before the learned Lower Court. He further admitted that he is a debtor of the Punjab & Sind Bank also. All these factors create a reasonable doubt if the plaintiff had financial sources to pay the balance consideration sum or not. It remains doubtful if he has been ready and willing to perform his part of the contract or not. In these circumstances the court feels that the ends of justice would meet if the decree passed by the learned Lower Court upholding the execution of the agreement to sell Ex. P1 is maintained, but the alternative relief of money decree is granted to the plaintiff. Accordingly, appeal filed by the appellant-defendant Baljinder Kaur is dismissed with costs with a modification that instead of specific performance of agreement to sell Ex. P1, the respondent- plaintiff Joginder Singh is entitled to a money decree in the sum of Rs.35000/- with costs and interest at the rate of 9% per annum with effect from the date of execution of the agreement to sell Ex. P1 till its realization.” From the above observations, it is clearly made out that the plaintiff-appellant in his statement admitted that when he went to the Office of Sub Registrar for getting the sale deed registered, he had got only Rs.400-500/- with him. He was also unable to tell as to how much money he had with him when he filed suit for specific performance before the trial Court. He also admitted that he is a debtor of the Punjab and Sind Bank. It is also a matter of record that the plaintiff-appellant filed the present suit RSA No.3478 of 2008 5 without affixing the Court fee. He could not make up the deficiency in the Court fee. He did so only after obtaining three adjournments for the purpose. On appreciation of these facts, the Lower Appellate Court has recorded a finding of fact that the appellant had no financial source to pay the balance consideration sum and it remained doubtful if he has been ready and willing to perform his part of the contract or not and in these circumstances, the Lower Appellate Court moulded the relief and instead of granting the specific performance of the agreement Ex.P-1 passed a decree for the alternative relief of money decree. Even otherwise, the relief of specific performance of an agreement is discretionary and equitable. The Lower Appellate Court on appreciation of evidence has recorded a finding of fact regarding the financial sources of the appellant to pay the balance sale consideration as doubtful and thereafter has exercised its judicial discretion not to grant a decree of specific performance of an agreement in favour of the appellant. I find no reason to interfere in the aforesaid discretion exercised by the Lower Appellate Court in regard to grant of alternative relief of money decree. For the reasons recorded above, there is no merit in this appeal. No substantial question of law arises. Dismissed. November 10, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.3478 of 2008 6 RSA No.3478 of 2008 7