RSA No.4470 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4470 of 2010 Date of decision: September 5, 2011. Somdutt ... Appellant(s) v. Pyare Lal & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Ajay Jain, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. (Oral): This regular second appeal has been filed by the defendant to the suit. Both the courts below have decreed the suit filed by the plaintiff- respondents for specific performance of the agreement to sell dated 5.10.1999. Briefly stated, a suit for specific performance and permanent injunction was filed by the plaintiffs- respondents praying that the defendant-appellant be directed to execute and register the sale deed in their favour in consonance with the agreement to sell dated 5.10.1999. They had also sought an alternative relief that double the amount of the earnest money be paid to them and further the present appellant, defendant to the suit, be restrained from alienating the suit property. In the plaint, detail and description of the suit property was given. It was stated that the present appellant-defendant had agreed to sell 8 kanals of land for a sale RSA No.4470 of 2010 -: 2 :- consideration of Rs.1,25,000/-, out of which Rs.50,000/- was received as earnest money and the remaining amount of Rs.75,000/- was to be paid at the time of execution and registration of the sale deed. The sale deed was slated to be executed on or before 30.5.2000. It was further pleaded that on 30.5.2000, the plaintiffs along with balance sale consideration, stamp fee, registration charges etc. were present before the Sub Registrar, Rewari but the defendant did not turn up to perform his part of the agreement, therefore, they had got themselves marked present before the authorities and got an affidavit attested. Upon issuance of notice, the defendant appeared, filed his written statement and raised various preliminary objections, including maintainability of the suit. It was pleaded that the agreement to sell dated 5.10.1999 was a result of fraud. It was pleaded that on 5.10.1999 itself, the appellant-defendant had executed a sale deed in favour of the plaintiff and at that time signatures of the defendant were obtained on certain documents and those documents were later on converted as an agreement to sell. After conclusion of the pleadings, the trial court had formulated issues; the parties to the suit led their evidence and placed certain documents on record. The two courts below have negated the plea of fraud and have held that agreement to sell indeed was executed between the parties. The courts have further held that the sale deed Ex.D1 executed on 5.10.1999 and execution of the agreement to sell Ex.PW1/B are two separate transactions. I have heard Shri Ajay Jain, Counsel for the appellant. It is not disputed that Sunil Kumar Gupta, Deed Writer, PW1, Yogesh Kumar PW2 and Krishan Lal Lambardar PW3, attesting witnesses RSA No.4470 of 2010 -: 3 :- to the agreement to sell Ex.PW1/B, have supported the case of the plaintiffs and the two courts below have placed implicit reliance upon their testimony. Shri Ajay Jain, to assail the judgments of the two courts below, has vehemently argued that the very fact that sale deed was executed on 5.10.1999 should be sufficient to infer that the agreement to sell Ex.PW1/B was a result of fraud and blank signatures of the appellant-defendant were obtained and those papers were subsequently converted as an agreement to sell. This Court is not inclined to accept this argument at the very outset as both the courts below were seized of this very argument. They have given a concurrent finding of fact that it is not a case of fraud. They have further held that the execution of sale deed Ex.D1 and agreement to sell Ex.PW1/B on the same day were two different transactions. Furthermore, Sunil Kumar Gupta, Deed Writer, can be termed as an independent witness and no mala fide intention has been attributed qua him by the defendant-appellant. Therefore, whether there was a fraud or not, being a question of fact, has already been determined by the two courts below. Hence, no interference is warranted and the first argument is rejected. Secondly, it has been urged that in the present case, suit has been filed after a delay of two years and two months, even though the same is within the period of limitation, i.e., three years. Counsel states that this point, in fact, should have been taken into consideration to grant alternative relief, than the relief of specific performance of the agreement to sell, calling upon the defendant to execute the sale deed. During arguments, Counsel agreed that the delay in filing of the suit itself lays no rule of thumb that alternative relief should be granted. It can be one of the given circumstances which can be taken into consideration by the courts below. RSA No.4470 of 2010 -: 4 :- In the present case, agreement to sell and the testimony of witnesses suffer from no infirmity. The courts below have held that the witnesses aspire confidence and are trustworthy. The legislature, in its wisdom, has prescribed three years as a period of limitation for filing the suit for specific performance. Merely because the suit was filed, though within limitation, after the gap of two years and two months, it is not sufficient to hold that only alternative relief should have been granted by the courts, unless and until some other circumstances are brought to the notice of the court making out a case of hardship. Those circumstances cannot be put into a water-tight jacket but may include the one that the suit property was subject matter of prior litigation or in between some bona fide purchaser had purchased the property. Supervening circumstances can be numerous which cannot be detailed out but in the present case, there is no such circumstance to say that the court below is bound to grant alternative relief. Hence, there is no merit in the present appeal. The same is dismissed, especially because the Counsel for the appellant could not formulate any question of law, much less a substantial one, for consideration of this Court during the course of arguments. [Kanwaljit Singh Ahluwalia] September 5, 2011. Judge kadyan