Regular Second Appeal No. 1592 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1592 of 2009. (O&M) Date of Decision: 23.4.2009 *** Charanjit Singh .. Appellant VS. Ram Chander .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Raj Mohan Singh, Advocate for the appellant. *** ARVIND KUMAR, J. Heard. The delay of 7 days and 1274 days in filing and re-filing the appeal respectively stands condoned. This is defendant's appeal challenging the judgment and decree rendered by the learned first Appellate Court below modifying the judgment and decree of the learned trial court, dismissing the suit, and holding the plaintiff entitled to the alternative relief of recovery of Rs.30,000/- along with interest @ 9% from the date of payment i.e. 24.9.1993 till the filing of the suit and further pendente lite and future interest @ 6%. The plaintiff filed the suit for specific performance of agreement to sell dated 24.9.1993 by claiming that by virtue of the same the defendant-appellant agreed to sell half share of shop No.7 for an amount of Rs.45,000/- and in lieu thereof the defendant received earnest money of Rs.30,000/- from him. The date fixed for execution of sale deed was fixed as 24.9.1994, but the defendant failed to perform his part of the contract. The stand of the defendant, on the other hand, was of denial of execution of any agreement to sell or of having received the amount of Rs.30,000/- as alleged. The learned trial court, as said above, dismissed the suit by Regular Second Appeal No. 1592 of 2009 2 drawing adverse inference against the plaintiff, firstly, on the ground that the plaintiff failed to prove the execution of said agreement to sell since he had not examined any of the attesting witnesses thereof and that the plaintiff failed to explain why he kept mum for a period of three years and filed the suit on 23.9.1997 while the date for execution of sale deed, as alleged was 24.9.1994. The learned appellate Court below dealt the matter in appeal and allowed the same in the manner indicated above. Hence this regular second appeal. It has come on record that there were money transactions between the parties. The defendant used to borrow money from the plaintiff from time to time and in lieu thereof the plaintiff resorted to all types of modes to secure the repayment of loan amount. The plea of the defendant that the plaintiff obtained his signatures on blank paper and lateron converted the same into agreement do not find favour of the learned first Appellate Court since the stamp paper on which the said agreement dated 24.9.1993 was scribed was shown to have purchased on the same day and not earlier in time. There were two marginal witnesses of the said agreement one Gopi Ram, who admittedly had expired and another one Pawan Kumar, who was not examined by the plaintiff being won over by the defendant, but the scribe of the said document namely Nanak Chand duly proved the case of the plaintiff that an amount of Rs.30,000/- was paid to the defendant at the time of execution of said document. No ill-will or enmity of this witness was shown against the defendant. The plaintiff admittedly filed the suit just a day before the completion of 3 years of the due date of execution of sale- deed. The sequence of events suggests that the purpose of execution of document was procurement of the amount and thus, rightly led the appellate Court below to conclude that the said document was not in fact an agreement to sell of the property, but a business transaction got executed in favour of the plaintiff to secure the repayment of loan amount, for which the plaintiff is entitled to get his amount back instead of relief of execution of sale deed in his favour. Thus, in the facts and circumstances of the case, it cannot be said that the approach of the learned appellate Court below in ordering for return of the amount along with interest instead of granting the relief of execution of sale-deed in favour of plaintiff-appellant is either Regular Second Appeal No. 1592 of 2009 3 illegal or perverse. Nothing has been shown to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE April 23,2009 Jiten