Regular Second Appeal No.3051 of 2003. -1- In the High Court of Punjab & Haryana at Chandigarh. Regular Second Appeal No.3051 of 2003. Date of decision:22-1-2008 Smt.Raj Rani. ...Appellant. Versus Ramesh Kumar. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. S.C.Chhabra Advocate for the appellant. Mr. Sandeep Khunger Advocate for the respondent. ... K. C. Puri, J. Judgment. Under challenge in this Regular Second Appeal is the judgment and decree passed by Shri M.M.S.Bedi, the then District Judge, Ferozepur whereby he dismissed the appeal preferred against the judgment and decree dated 23.2.2001 rendered by Civil Judge (Junior Division), Ferozepur. The facts giving rise to this lis may be summed up thus:- Ramesh Kumar,respondent filed a suit for possession by way of specific performance of agreement to sell dated 26-11-1996 executed by the defendant (now appellant) in favour of the plaintiff for Regular Second Appeal No.3051 of 2003. -2- sale of house measuring 4 Marlas 4 Sarsai comprised in Rectangle No.219, Killa No.11/2/20(0-3-0) and 11/2/21(0-1-4), situated in the area of village Guruhar Sahai, Tehsil and District Ferozepur on payment of balance amount of sale consideration of Rs.50,000/- or in the alternative suit for recovery of Rs.2,50,000/- i.e. (Rs.2,00,000 as principal amount and Rs. 50,000/-as damages). The defendant was the owner of the house in question. She entered into an agreement for the sale of said house in favour of the plaintiff for a consideration of Rs.2,50,000/- after receiving a sum of Rs.2,00,000/- as earnest money from the plaintiff in the presence of document writer and attesting witnesses. The balance amount of Rs.50,000/- was agreed to be paid to the defendant by the plaintiff at the time of execution and registration of sale deed in favour of the plaintiff. The sale deed was agreed to be executed on or before 31.10.1997. It was also stipulated in the agreement that in case of breach of terms and conditions of the agreement or the defendant's failure to execute and register the sale-deed in favour of the plaintiff within the stipulated period, then the plaintiff was entitled to recover double amount than that of earnest money from the defendant and the plaintiff was also at liberty to get the sale deed executed and registered in his favour through Court after depositing the balance amount of the sale consideration in the Court. The plaintiff has always been ready and willing to perform his part of the contract and was still ready and willing to perform his part of the contract. There was a holiday on the Regular Second Appeal No.3051 of 2003. -3- eve of Diwali on the stipulated date i.e. 31.10.1997 fixed for execution and registration of the sale-deed and as such the plaintiff visited Tehsil Complex Guruhar Sahai after informing the defendant and waited for the defendant for whole of the day but the defendant did not reach there and at last in the evening, the plaintiff got his presence marked before Joint Sub Registrar, Guruhar Sahai. Similarly, on 3.11.1997, i.e. the next working day, the plaintiff again visited the Tehsil Complex, Guruhar Sahai after informing the defendant but the defendant again remained absent and the plaintiff again got his presence marked before the Joint Sub Registrar, Guruhar Sahai. The defendant committed breach of terms and conditions of the agreement and as such the plaintiff was entitled to get agreement of sell specifically enforced through Court by filing the present suit. On notice, the defendant appeared and contested the suit. She pleaded that the suit of the plaintiff was not maintainable in the present form; that the alleged agreement to sell is forged and fabricated document as the defendant never executed the same in favour of the plaintiff at that time. She also pleaded that she neither entered into the alleged agreement for the sale of said house in favour of the plaintiff for a total consideration of Rs.2,50,000/- on 26.11.1996 nor she received an amount of Rs.2,00,000/- as earnest money from the plaintiff in the presence of document writer and attesting witnesses. She also pleaded that the plaintiff was doing the business of spare parts of truck etc. and she was purchasing the spare parts of trucks from the Regular Second Appeal No.3051 of 2003. -4- shop of the plaintiff. During dealings, plaintiff got her thumb impressions/signatures on some blank papers/stamp papers and when she stopped to purchase the spare-parts from the shop of the plaintiff, then the plaintiff fabricated the said blank stamp papers/stamp papers into said agreement alleged to have been executed by her in favour of the plaintiff regarding the said house. The alleged agreement is forged and fabricated document. She also denied that it was agreed that the sale deed was to be executed and registered on or before 31.10.1997. When she did not execute the alleged agreement in favour of the plaintiff, the question of breach of terms an conditions of the alleged agreement by her did not arise at all. Eventually, she prayed for the dismissal of the suit. In the replication, the plaintiff denied the averments of the defendant and reiterated his own claim. On the pleadings of the parties, the following issues were framed:- 1.Whether defendant executed an agreement to sell dated 26.11.1996 for the sale of house measuring 4 Marlas 4 Sarsai in favour of the plaintiff for a total consideration of Rs.2,50,000/- and received an amount of Rs.2,00,000/- as earnest money from the plaintiff? OPP. 2.Whether the plaintiff was and is still ready and willing to perform his part of contract? OPP 3.Whether suit of plaintiff is not maintainable in the present form?OPD. 4.Whether the alleged agreement is forged and fabricated?OPD. Regular Second Appeal No.3051 of 2003. -5- 5.Relief. After the conclusion of evidence,the learned trial Court after hearing arguments of both sides decided issue Nos.1,3 and 4 in favour of the plaintiff and against the defendant. Issue No.2 was decided in favour of the defendant and against the plaintiff. As a result of said findings,the suit of the plaintiff for alternative relief of recovery of Rs.2,00,000/- being earnest money with costs and pendentelite interest @ 12% per annum from the date of filing the suit till decision and future interest @ 6% per annum from the decision of the decision of the suit till its realization was decreed. However, the suit of the plaintiff for specific performance of agreement to sell dated 26.11.1996 was dismissed by the learned trial Court vide judgment and decree dated 23.2.2001. Feeling aggrieved by the said judgment and decree, the plaintiff and the defendant filed two separate appeals, which were dismissed by the then learned District Judge, Ferozepur vide impugned judgment and decree dated 15.1.2003. However, rate of interest was reduced to 6% per annum till realization instead of 12% per annum from the date of filing the suit till decision and 6% per annum from the date of decision till payment. Still feeling dis-satisfied with the said judgment and decree, the defendant has filed the present Regular Second Appeal. I have heard arguments of counsel for the parties and have Regular Second Appeal No.3051 of 2003. -6- gone through the record of the case. According to the appellant, the following questions of law have arisen for consideration of this Court in this appeal. 1. Whether even after a concurrent finding by both the Courts below that the plaintiff was not ready and willing to perform his part of contract, he was entitled to any equitable relief drawing the benefit of his own failure contrary to law in case Dhana Singh Versus Malkiat Singh, 1983 P.L.R. 275. 2. Whether a suit for specific performance can be converted into a suit for recovery by decreeing the same for refund of the alleged earnest money and for payment of interest also without having pleaded and proved the case on the basis of any such contract in this regard? 3. Whether in such a situation, rather the penal clause should not have been imposed upon the respondent by forfeiting his alleged amount of earnest money? The learned counsel for the appellant has vehemently submitted that there is concurrent finding of both by the Courts below that the plaintiff was not ready and willing to perform his part of the contract and as such the suit of the plaintiff for alternative relief of recovery should have also been dismissed and it should have been held by both the Courts below that the amount of advance, if any, stand forfeited. To support this contention, the learned counsel for the Regular Second Appeal No.3051 of 2003. -7- appellant has relied upon the following authorities;- 1. Amar Singh Versus Jaswant Kaur,2007(2) Recent Civil Reports 3. 2. Shiv Kumar Sharma Versus Santosh Kumari, 2007(4) Recent Civil Reports 515. 3. Sita Ram and others Versus Radhey Shyam, 2007 (4) Recent Civil Reports 533. I have considered the submissions made by the counsel for the appellant but do not find any force in those submissions. It is a civil case and has to be decided in accordance with the pleadings of the parties. The defendant-appellant has no where pleaded that she had been ready and willing to perform her part of the contract and that the amount of advance has been forfeited. A new case cannot be made out by the Court in favour of any party beyond pleadings. The appellant in the written statement has specifically denied the execution of agreement of sale. She has taken a stand that the agreement of sale is result of forgery. That stand has not found favour with both the Courts below and both the Courts below have returned concurrent finding that the defendant has executed the agreement in question in favour of the plaintiff. So far as authority in Amar Singh's case (supra), relied upon by the appellant is concerned, that authority is distinguishable. In that case, the execution of document was admitted and it was pleaded that the plaintiff was not ready and willing to perform his part of the Regular Second Appeal No.3051 of 2003. -8- contract. In the present case, the defendant has no where pleaded that she had been ready and willing to perform her part of the contract and that earnest money stand forfeited. The other authorities, referred to above, are also distinguishable on the same grounds. In case Kashmira Singh Versus Atma Singh and others, Vol.CXLVI (2007-2) Punjab Law Reporter 712, alternative relief for recovery of the amount was allowed. In authority in Ruldu Singh Versus Kulwant Rai, Vol.CXXXVI(2004-1) Punjab Law Reporter 883, it has been held that the defendant could not offer any explanation, whatsoever, as to how he happened to sign this agreement and further as to how he happened to sign the agreement and further as to how he admitted the receipt of Rs.8,000/- in that case, suit for alternative relief of recovery of money was decreed. The defendant/appellant has failed to prove that fact that agreement in question is the result of fraud or forgery. That finding is pure finding of fact and as such cannot be interfered with by this Court in regular second appeal. In authority Prem Singh Versus Mangu Ram, Vol. CXXXVIII (2004-3) Punjab Law Reporter 29, it has been held that even if the party failed to establish readiness to perform his part of the contract, the Court can still grant alternative relief of recovery of the amount. So, in view of the above discussion, the points of law formulated above stand determined against the appellant. Consequently, this appeal stand dismissed with costs. Decree sheet be Regular Second Appeal No.3051 of 2003. -9- prepared. Files of the Courts below be returned after due compliance. January 22,2008. ( K. C. Puri ) Jaggi Judge