R.S.A.No.2689 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2689 of 2008 Date of Decision : 09.07.2009 Jasbir Singh ...Appellant Versus Nirmal Singh ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Munish Gupta, Advocate, for the appellant. Mr. S.S.Rana, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby the suit for possession by way of specific performance of the agreement to sell dated 12.1.2001, was decreed. The plaintiff filed the suit for specific performance on the basis of the aforesaid agreement with the averments that the defendant has received Rs.5,66,000/- as earnest money and the sale deed was to be executed on receipt of remaining sale consideration on or before 15.1.2003 in respect of land measuring 12 Kanals 15 Marlas. The plaintiff filed the present suit for specific performance on 22.12.2001 as the defendant alleged to refuse to execute the sale deed. In the written statement, the deendant-appellant admitted that he has borrowed an amount of Rs.4,00,000/- from the plaintiff with rate of interest settled at 1.75% per month. The defendant executed a R.S.A.No.2689 of 2008 2 document as security of the land purported to be pronote and receipt. The plaintiff with ulterior motive to grab the property of the defendant got scribed the agreement to sell in connivance with the witnesses and scribe. It is alleged that the plaintiff executed the document after adding interest for two years in advance. The present suit filed is premature, as the stipulated date for execution of the sale is 15.1.2003. In para No.3 of the written statement, the defendant asserted that the defendant would return the amount on the due date, otherwise further interest would be paid on the actual amount borrowed. The plaintiff appeared as his own witness and also produced Sikandar Singh, Deed Writer as PW-3 and the attesting witnesses Hardev Singh and Mohan Singh as PW-1 and PW-2. The defendant did not appear as his own witness nor produce any evidence, even though numerous opportunities were granted to the defendant to lead evidence. On the basis of the evidence led, the learned trial Court decreed the suit holding that the agreement to sell stands executed as the parties signed the same in the presence of marginal witnesses. The findings recorded by the learned trial Court were affirmed in appeal as well. The learned First Appellate Court considered the argument raised by the appellant that no notice was served upon defendant before filing of the suit calling upon the defendant, to execute the sale deed. Therefore, without notice the plaintiff could not file the suit for specific performance before the stipulated date. The learned First Appellate Court has found that the sale deed was to be executed till 15.1.2003. It means that sale deed was not to be executed on the aforesaid date. It could be R.S.A.No.2689 of 2008 3 executed at any time before the date so fixed. Before this Court, learned counsel for the appellant has vehemently argued that without serving any notice, calling upon the defendant to execute the sale deed, the filing of the suit much before the stipulated date of performance of the agreement renders the suit as premature. It is also contended that the date for performing execution of the sale deed as 15.1.2003, after receiving the substantial amount on 12.1.2001 shows that the transaction between the parties is that of loan and not that of sale of property. The question to be examined is whether the plaintiff could file suit before 15.1.2003. The Clause X of the agreement in respect of time of execution of the sale deed has been reproduced by the learned First Appellate Court. The same reads as under : "It is stipulated that party No.2 would execute the sale deed till 15.1.2003 at the instance of the purchaser." In view of the said clause, 15.1.2003 was not the date fixed for execution of the sale deed. The sale deed could be executed any time, prior thereto. Even if, one is to assume that the plaintiff has filed suit for specific performance prematurely, the fact remains that the suit was decreed on 5.10.2006 i.e. more than three years after the aforesaid date. The defendant could call upon by the plaintiff, to execute the sale deed at any time during the pendency of the suit. As per the stand of the defendant in the written statement, the defendant offered to pay the amount allegedly taken by the appellant as loan on 15.1.2003. He has neither paid the amount nor executed the sale deed. Therefore, the stand R.S.A.No.2689 of 2008 4 of the appellant cannot be relied upon as the stand of the defendant is not bona fide. The argument that deferment of sale for two years is a suspicious circumstance is not available to the appellant. The appellant has not appeared as a witness in the Court. There is no evidence to controvert the evidence of the plaintiff. There is no evidence that transaction between the parties is that of loan and not of sale. In the absence of any evidence, the findings recorded by the Court below, cannot be said to be suffering from any patent illegality or irregularity. The findings recorded by the Courts below do not give rise to any substantial question of law for consideration by this Court in second appeal. Dismissed. 09.07.2009 (HEMANT GUPTA) Vimal JUDGE