RSA No.1605 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1605 of 2009(O & M) Date of Decision:28.05.2009 Oriental Bank of Commerce & anr. ....appellants Versus Jasbir Singh & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.N.C.Sahni,Advocate for the appellants **** RAKESH KUMAR GARG J. This is defendants' Regular Second Appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff- respondents for possession by way of specific performance of agreement to sell dated 05.12.1995 pertaining to the suit land was decreed. As per the averments made in the suit Varinder Kumar Sharma, Chairman of the erstwhile Bari Doab Bank held a general power of attorney dated 18.10.1993 executed in his favour by Ashish Raj son of Janak Raj, Director of Bari Doab Bank who was authorized to do so vide resolution dated 25.8.1993. It is further case of the plaintiffs that the defendant Bari Doab Bank Ltd. was owner of Khasra No. 948 situated in the revenue estate of village Premgarh as per jamabandi for the year 1991- 92. It was further represented by the aforesaid Varinder Kumar to the plaintiffs that he was authorized by the General Power of Attorney dated 18.10.1993 given by the Bank to him to sell the land of the bank. These agreements to sell were executed by Varinder Kumar Sharma on behalf of defendant-Bank in favour of the plaintiffs. He also received earnest money/part payment towards the sale consideration and it was agreed that the land will be sold at the rate of Rs. 15000/- per marla and the sale deeds RSA No.1605 of 2009 2 will be executed upto April 1996. It was also incorporated in all the agreements that the balance sale consideration will be paid at the time of registration of the sale deeds and all the expenses for the sale deeds shall be borne by the purchaser. It was also stipulated in the agreements that in case of failure of plaintiffs to get the sale deed executed in their favour, the earnest money shall stand forfeited and their right to purchase the land shall be extinguished and in case Bari Doab Bank Ltd. failed to execute the sale deed, the purchaser shall be at liberty to seek recourse to law and shall get the sale deed registered through the Court. It was further averred in the suit that the plaintiffs approached the management of the Hoshiarpur Branch of Bari Doab Bank for execution of the sale deed as per the terms of the agreements. However, a reply was given that a moratorium has been imposed upon the Bank by the Reserve Bank of India whereby they have been debarred from sale/purchase of any estate of the Bank through the currency of moratorium period. It was further submitted in the plaint that the plaintiffs had always been ready and willing to perform their part of the agreement and were in possession of sufficient funds to pay the remaining sale consideration as well as the necessary expenses and the plaintiffs were still ready and willing to perform their part of the agreement. However, none from the side of the defendants came to execute the sale deeds in favour of the plaintiffs. The plaintiffs came to know that a merger was effected whereby Bari Doab Bank Ltd. was merged into the Oriental Bank of Commerce and as per the merger, the Oriental Bank of Commerce being the successor of Bari Doab Bank was bound by the agreement executed by his predecessor. After taking over the Bari Doab Bank by the Oriental Bank of Commerce, the plaintiffs issued notices calling upon defendants to execute the sale deeds in favour of the plaintiffs. Hence the RSA No.1605 of 2009 3 suit for possession by way of specific performance of the agreement to sell with an alternative prayer for liquidated damages was filed. In response to the notices issued by the court, the defendants No.1 and 2 appeared and contested the suit by filing joint written statement raising various preliminary objections. On merits, it was submitted that Varinder Kumar Sharma/defendant No.4 had no valid authority to enter into an alleged agreement. Defendant No.3 i.e. Bari Doab Bank being a company was required to pass a resolution for empowering defendant No.4 for entering into such an agreement. It was further submitted that defendant Nos. 1 and 2 were not bound by the alleged agreement executed by defendant No.4 which was beyond his competence. However, it was admitted that moratorium was imposed on defendant No.3 and the merger has taken place vide notification dated 7.4.1997 and the defendant Oriental Bank of Commerce had taken over all the assets and liabilities of the erstwhile Bari Doab Bank. Defendant No.3 was proceeded against ex parte. Defendant No.4 filed separate written statement stating that whole record of Bari Doab Bank was transferred to Oriental Bank of Commerce. The plaintiff filed replication controverting the averments made in the written statement stating that defendant No.4 had a valid authority on behalf of defendant No.3 to enter into agreement to sell and to execute sale deed in respect of the suit property and defendant No. 4 executed various sale deeds prior to the dispute of merger of Bari Doab Bank into the Oriental Bank of Commerce. It was further stated that a valid resolution authorizing defendant No. 4 was passed by defendant No.3 and defendant Nos. 1 and 2 are bound by the acts of their predecessor which he was duly authorized and competent to do. On the basis of the pleadings, the issues were framed and the main/basic issue in this suit was as under:- RSA No.1605 of 2009 4 “Whether the plaintiff is entitled to the possession of the suit land as prayer for by way of Specific Performance of the Agreement to Sell?” The receipt of earnest money/part payment by the defendant was also admitted. The trial Court on appreciation of evidence held all the issues in favour of the plaintiffs and decreed the suit with costs for possession by way of specific performance of the agreement to sell in question in the civil suit and directed the defendants to execute and register the sale deeds in favour of the plaintiffs. Feeling aggrieved from the judgment and decree of the trial Court, defendant Nos. 1 and 2 Oriental Bank of Commerce filed appeal, which was dismissed by the Lower Appellate court. Not satisfied, the defendant Oriental Bank of Commerce has filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel appearing on behalf of the appellant-Bank has very fairly stated that the point in issue is squarely covered by a judgment dated 28.05.2009 passed in RSA No.24 of 2004 titled as “Oriental Bank of Commerce and anr. Versus Bikram Singh and others” and in view of the aforesaid judgment wherein it was held that Varinder Kumar Sharma was competent to execute the agreement to sell in question this appeal is liable to be dismissed. For the reasons mentioned above, this appeal is dismissed in view of the fact that the same is covered by judgment of this court passed in RSA No. 24 of 2004 titled as “Oriental Bank of Commerce and anr. Versus Bikram Singh and others”. (RAKESH KUMAR GARG) JUDGE 28.05.2009 neenu