RSA No.548 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.548 of 2011 (O&M) Date of decision : 15.11.2011 Ajit Kumar ....APPELLANT(S) VERSUS Sucha Singh and others ....RESPONDENT(S) CORAM : HON'BLE MR.JUSTICE A.N.JINDAL *** Present : Mr.Arun Abrol, Advocate, for the appellant. *** A.N.JINDAL, J (Oral) A suit for specific performance in respect of an agreement for sale or in the alternative recovery of Rs.3,00,000/- filed by the plaintiff- respondents (herein referred as 'the plaintiff) was partly decreed for the alternative relief of Rs.2,95,000/- alongwith interest @ 6% per annum from the date of filing of the suit till its realization by the Court of Civil Judge (Junior Division), Gurdaspur on 17.03.2009. The Appeal against the said judgment, preferred by the defendants-appellants (herein referred as 'the defendants') was dismissed. The factual matrix of the case, as essential for disposal of this appeal, is that the defendants entered into an agreement to sell on 19.05.2005 with Gurmit Kaur- plaintiff No.2 for sale of the house, as fully detailed in the headnote of the plaint, for a total sum of Rs.3,00,000/- and after receiving Rs.1,50,000/- as earnest money, he executed an agreement Ex.P1. As per the said agreement, the remaining consideration of RSA No.548 of 2011 (O&M) 2 Rs.1,50,000/- was to be paid on 20.06.2005 and on that date the sale deed was to be executed. On 20.06.2005, both the parties again entered into an agreement of sale vide which the defendants after receiving a further sum of Rs.1,45,000/- extended the date of sale as 21.12.2005. It was further agreed that in case of failure on the part of the vendors-defendants, they would refund the amount. The possession of the said house was delivered to the plaintiffs. It has also been averred that the plaintiffs had always been ready to perform their part of the contract and they remained present before the Sub-Registrar on 21.12.2005 alongwith sale consideration but the defendants did not turn up. Thus, the present suit was filed. Upon notice, the defendants appeared and filed the written statement taking certain preliminary objections with regard to the maintainability of the suit and incorrectness of the site plan. It was further averred that defendant No.1 alongwith his brother Diwan Chand had purchased the house in dispute from Subhash Chander vide sale deed dated 08.01.1975, as such he was a co-owner to the extent of ½ share of the said house which has not so far been partitioned. Therefore, the question of enforcement of the agreement did not arise. It was further submitted that defendant No.2 had no right, title or interest in the house in dispute, therefore, he was not competent to enter into agreement. No agreement, as alleged, was executed in favour of plaintiff No.2 on 19.05.2005. Actually, defendant No.1 had borrowed a sum of Rs.1,00,000/- from plaintiff No.1 for treatment of her daughter Sudesh Kumari. However, plaintiff No.1 obtained signatures of both the defendants on some stamp paper in order to secure the pre-payment of loan. Plaintiff No.1 is a money lender by profession, therefore, he added Rs.50,000/- as interest and fabricated the agreement. RSA No.548 of 2011 (O&M) 3 Had there actually been an agreement of sale then the question of postponement of execution and the registration of sale deed would not have been made for a paltry sum of Rs.5,000/-. It was also alleged that against the said loan of Rs.1,00,000/-, the defendant No.1 had paid a sum of Rs.90,000/- to plaintiff No.1 but no receipt was given to him. Similarly, agreement dated 20.06.2005 is also fabricated. From the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiffs are entitled to the possession of the suit property by means of specific performance of agreement for sale dated 19.05.2005 and 20.06.2005 ? OPP 1.A Whether the defendants executed an agreement of sale dated 19.05.2005 with the plaintiff No.2 for the sale of their house ? OPP 1.B Whether defendants executed the agreement dated 20.06.2005 with plaintiffs for sale of their house ? OPP 1.C Whether the plaintiffs have always remained ready and willing to perform their part of agreement and are still ready and willing upto the filing of the suit ? OPP 2. Whether the plaintiffs are entitled to recover Rs.3,00,000/- as an alternative relief ? OPP 3. Whether the plaintiffs are entitled to the permanent injunction as prayed for ? OPP 4. Whether the suit is not maintainable ? OPD 5. Relief. The trial Court appears to have not correctly framed the first three RSA No.548 of 2011 (O&M) 4 issues. The framing issues repeatedly indicates the non-application of mind and tarnishes the image of the officer. Therefore, the Registry would inform the officer not to commit such blunder in future. Both the parties while holding that the agreements Ex.P1 and Ex.P-2 were the money transactions and not the agreement of sale. The documents Ex.D1 to Ex.D18 also prove that the plaintiff is the money lender, awarded an alternative relief by passing a decree for payment of money. The first Appellate Court also affirmed the findings returned by the trial Court. Still dissatisfied, the defendant has come up in appeal. The evidence, if examined, reveals that there are concurrent findings of fact that the defendant was in need of money for the treatment of his daughter, therefore, it is difficult to deviate from the observations made by both the Courts below that the agreements Ex.P1 and P-2 were not for the sale of the property but were executed against a loan transaction but the plaintiff projected them as executed for the purpose of sale of the property in dispute. It has also been categorically observed by the First Appellate Court that execution of the agreements is proved. Every page of Ex.P-1 is signed by the defendant. That apart, he has written with his own pen in Urdu that he had received a sum of Rs.1,50,000/-. Similarly, on page 2 of Ex.P-2, the signatures of the defendant-appellant Ajit Kumar appears to be in his hand. He has also written in Urdu. However, he has cleverly made the statement that he can only sign in Urdu but he can not read it. It also needs to be mentioned that Ex.P-2 bears the photograph of Ashwani Kumar, the younger son of defendant No.1 (Ajit Kumar) at point Ex.P-2/B. Thus, it could be easily inferred from the admission made by defendant No.1 in his RSA No.548 of 2011 (O&M) 5 cross-examination regarding admission of the agreement Ex.P1 and his signatures at point Ex.P2/A on the document Ex.P-2. It would not be proper to hold that both the Courts below have not properly appreciated the evidence. The impugned judgment appears to be quite reasoned and no perversity or illegality could be detected, warranting interference by this Court. No question much less substantial question of law arises for determination. Dismissed in limine. ( A.N.JINDAL ) November 15, 2011. JUDGE mamta