RSA No. 2812 of 1995 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 2812 of 1995 Date of decision: November21,2008 Lakhmir Singh ..Appellant. Versus Partap Singh and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. A.K.Jain, Advocate for the Appellant. Mr.Sanjeev Gupta, Advocate with Mr.Ajit Sihag, Advocate for the respondents. .. Rakesh Kumar Garg,J. This is defendant’s second appeal challenging the judgment and decrees of the courts below whereby a decree for possession by way of specific performance of the agreement dated 21.6.1968 in favour of plaintiff-respondents regarding the suit land has been granted. Briefly stated the facts of the case are that the plaintiffs filed a suit for possession by way of specific performance against the defendant on the averments that the defendant had entered into an agreement to sell with the plaintiffs to sell his agricultural land as detailed in the plaint at the rate of Rs.38000/- per killa vide agreement dated 21.6.1988. According to the said agreement dated 21.6.1988, defendant received a sum of Rs.15000/- by way of earnest money and the sale deed was to be executed and registered on 20.1.1989 and the remaining amount was to be paid at the time of execution of the sale deed before the Sub Registrar. It has been further averred in the plaint that on 20.1.1989, the plaintiffs with the remaining amount of Rs.61000/- and other expenses of the sale deed as mentioned in the agreement remained present in the office of Sub Registrar, Rajpura from 9.00 A.M. To 5.00 P.M. and were ready to purchase the stamp paper for execution of the sale deed but the RSA No. 2812 of 1995 2 defendant did not turn up. The plaintiffs got their presence marked before the Sub Registrar, who saw the remaining amount of the sale deed with the plaintiff along with other expenses. The plaintiffs also gave an affidavit in support of their presence before the office of Sub Registrar. This affidavit was duly attested by the Executive Magistrate-cum-Sub Registrar, Rajpura. Even after the date of execution, the plaintiffs requested the defendant to come to the court of Sub Registrar and execute the sale deed in their favour after receiving the balance amount of Rs.61000/-. However, the defendant did not bother. It was also averred that the plaintiffs were ready and willing and are still ready and willing at the time of filing of the suit to perform their part of the contract but the defendant was not ready to execute the sale deed in favour of the plaintiffs because prices of the lands have gone up. Hence this suit. Upon notice, defendant filed written statement and denied that he ever executed an agreement dated 21.6.1988 in favour of the plaintiffs. It was further stated by him that the said agreement is false and fabricated document. He did not receive Rs.15000/- as earnest money from the plaintiffs. The alleged agreement is a result of fraud and misrepresentation. It was further averred in the written statement that in fact defendant made writing on 21.6.1988 in favour of the plaintiffs by which the suit land was given on rent to the plaintiffs for cultivation. The said writing was scribed by Sukhdev Singh Bedi, Deed Writer, Rajpura. The plaintiffs got the agreement Exh.P1 fraudulently prepared under the garb of the execution of the agreement dated 21.6.1988 regarding lease of the suit land to the plaintiffs for cultivation. Thus agreement Exh.P1 has been prepared by the plaintiffs in connivance with Shri Sukhdev Singh Bedi and Ujagar Singh, attesting witnesses of the agreement Exh.P1. The defendant also took the stand that the suit land is Joint Hindu Family Coparcenary Property and he was not legally competent to sell the same and, therefore, no decree for specific performance could be legally passed in favour of the plaintiffs. Dismissal of the suit was prayed for. Plaintiffs filed replication to the written statement in which they RSA No. 2812 of 1995 3 reiterated their allegation made in the plaint by denying those of the written statement. From the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the defendant agreed to sell the suit land in favour of the plaintiffs vide agreement dated 21.6.1988 at the rate of Rs.38,000/- per killa and received Rs.15000/- as advance money ? OPP 2. Whether the plaintiffs always remained ready and willing to perform their part of the contract ?OPP 3. Whether the suit land is joint Hindu Family Coparcenary Property in the hands of the defendant. If so, to what effect ? OPD 4. Whether the plaintiffs are entitled to specific performance of the agreement ?OPP 5. If issue No.4 is not proved, whether in the alternative the plaintiffs are entitled to recover Rs.76,000/- from the defendant ? OPP 6. If issue No.1 is proved whether the agreement dated 21.6.1988 is the result of fraud and misrepresentation ?OPD 7. Relief. Both the parties led oral and documentary evidence in support of their case and on the conclusion of the proceedings, issue Nos.1,2,4 and 6 were decided in favour of the plaintiffs and issue No.3 was decided against the defendant. No specific finding was given on issue No.5 because the trial court found that the plaintiffs are entitled to a decree for specific performance under issue No.4 and finally suit of the plaintiffs was decreed and directions were given to them to deposit the sum of Rs.61,000/- in the Court within two months from the date of the passing of the judgment failing which the suit of the plaintiffs shall be deemed to have been dismissed. Further it was directed by the trial Court that after deposit of the balance sale consideration, the defendant shall execute the RSA No. 2812 of 1995 4 sale deed in respect of the suit land in favour of the plaintiffs in accordance with the agreement dated 21.6.1988 Exh.P1 and on failure of the defendant to execute the sale deed, the plaintiffs shall be entitled to get the sale deed executed in their favour through court by appointment of local commissioner in this regard. It is relevant to mention here that in pursuance of the decree of the trial Court, the plaintiffs deposited a sum of Rs.61000/- on 27.11.1991 to perform their part of the contract as per the directions of the trial Court. Aggrieved by the aforesaid judgment and decree of the trial Court, the defendant filed an appeal. The District Judge, Patiala vide impugned judgment and decree dated 21.11.1995 dismissed the aforesaid appeal with costs and the defendant was directed to execute the sale deed in terms of the agreement Exh.P1 within one month from the date of passing of this judgment failing which the respondents were entitled to get the sale deed executed through the court of law. While dismissing the appeal, the lower Appellate Court recorded a finding that it stands proved from the record that appellant executed agreement Exh.P1 and agreed to sell the land in dispute and received a sum of Rs.15000/- by way of earnest money. The lower Appellate Court also held that it stands established that plaintiff were always ready and willing to perform their part of the contract and conduct of the plaintiff was not such so as to dis-entitle them from a decree of specific performance. Still not satisfied, the defendant filed the instant appeal in this Court which was admitted for regular hearing vide order dated 20.2.1996. The appeal came up for hearing before this Court on 21.10.2008 and it was found that no substantial questions of law arises out of the appeal have been formulated and therefore, the case was adjourned to enable the counsel for the appellant to formulate and place on record the substantial questions of law arising out of this appeal. The case came up for hearing on 10.11.2008 and during the course of arguments, learned counsel submitted that RSA No. 2812 of 1995 5 the following substantial question of law arises in this appeal:- 1. Whether the nature of transactions between the parties has been adjudicated in accordance with law and on the basis of the evidence on record ? 2. Whether the plaintiff is entitled to equitable relief of possession even after concealment of filing of earlier suit for permanent injunction dated 4.1.1989 based on possession? 3. Whether the finding on issues framed by the court below are against the evidence placed on record and could be adjudicated on the basis of assumptions ? Shri A.K. Jain, learned counsel appearing on behalf of the appellant has vehemently argued that mere establishment of the facts that the agreement to sell has been entered into is not sufficient to grant a decree for specific performance and if the circumstances as indicated in Section 20 of the Specific Relief Act exists in a particular suit, the court ought to certainly exercise its discretion in favour of the defendant and give a lesser or limited relief to the plaintiffs as indicated in Section 21 of the Act. Elaborating further his argument, learned counsel has stated that in this case, the appellant has disputed the genuineness of the agreement in question and has proved on record that the agreement Exh.P1 is result of fraud and misrepresentation and the same has been forged by the respondent in connivance with deed writer Sukhdev Singh Bedi under the garb of preparing the lease deed Exh.D1 and therefore in these circumstances, specific performance of the agreement to sell should have been declined by the courts below. In support of his argument, learned counsel for the appellant has relied upon a judgment of the Apex Court cited as Veluyudhan Sathyadas Vs. Govindan Dakshyani 2002(2) PLJ 152 and M/s Glitter Buildcon Pvt. Ltd. Versus Sanjay Grover 2004(1) RCR© 20.` It has also been argued by the counsel for the appellant that agreement Exh.P1 itself provides that in case seller refuses to sell, there was no obligation on the seller to complete sale transaction and therefore contract could RSA No. 2812 of 1995 6 not be specifically enforced. In support of this contention, learned counsel has placed reliance in the case of Dada Rao and another Versus Ramrao and others (1999)8 SCC-416. It is relevant to mention here that no argument has been raised by the learned counsel for the appellant on question No.2 as stated above. I have also perused the record and found that there is no such plea of earlier suit has been raised by either of the parties. Neither any such issue is claimed nor any such fact has come on record by way of evidence. On the other hand learned counsel appearing on behalf of the respondents has supported the impugned judgment and decrees of the courts below and has argued that no substantial question of law arises in this appeal as both the courts below on appreciation of evidence have recorded a concurrent finding of fact in favour of the respondents. It has also been argued by the counsel for the respondent that no hardship as envisaged under Section 20(2) of the Specific Relief Act, 1963 has been pleaded by the appellant nor any such case has been made out in the facts and circumstances of this case and in fact the case set up by the appellant is only to the extent that agreement Exh.P1 is a forged and fabricated document and he has never executed the said document. It has been further argued by the learned counsel for the respondents that the defence taken by the appellant has been rejected out rightly by the courts below by recording a finding of fact that receipt Ex.D1 is a self serving evidence created by the appellant himself and the execution of Exh.P1 stands duly proved and thus the impugned judgment and decrees have been passed legally and in accordance with law. I have heard learned counsel for the parties and perused the record. A perusal of the agreement Exh.P1 shows that it is a typed document which runs into three pages. It is written on a stamp paper of Rs.2.25. It shows that stamp paper of Rs.2.25 was purchased by Lakhmir Singh himself. Endorsement Exh.P2 on this document also shows that it has also been written by the appellant that he has received a sum of Rs. 15000/- in cash from the plaintiffs. This document has been further proved from the statement of PW1 RSA No. 2812 of 1995 7 Partap Singh who stated that contents of the agreement were read over to the defendant and he after admitting the same to be correct put his signatures and received a sum of Rs.15000/- by way of earnest money. PW2 Sat Pal Stamp Vendor has also stated that the stamp paper was sold to Lakhmir Singh on 21.6.1988. Ujagar Singh PW3 an attesting witness of the agreement Ex.P1 also stated that Lakhmir Singh defendant agreed to sell the suit land in favour of the plaintiff for a consideration of Rs.76000/- and received a sum of Rs. 15000/- by way of earnest money. Thus the agreement Exh.P1 fully stands proved from the evidence on record and no fault can be found in the execution of the same. The defence taken by the appellant to disprove the execution of the said document is that he has agreed to give the land in dispute on rent to the respondents and on 21.6.1988, a receipt Ex.D1 was got executed from Deed Writer Sukhdev Singh Bedi who is the same person who has drafted Exh.P1 in favour of the respondent with their connivance. Ex.D1 is the copy of the entry of the register of the scribe with regard to receipt allegedly executed by Lakhmir Singh in favour of the plaintiffs but the said entry does not bear any signature of the plaintiffs, who allegedly gave Rs.4000/- to the defendant. This entry is signed by the defendant. Moreover, the defendant in his cross-examination has admitted that on the alleged writing Ex.D1, no one except him signed. The plaintiffs were not signatories to the alleged original of Ex.D1, therefore, it cannot be held that Ex.D1 was ever executed by them. The defendant has miserably failed to prove his defence to disprove the execution of the agreement to sell Ex.P1, which stood proved from the record. The things do not rest here. Assuming for the sake of arguments that as alleged by the defendant, the land was given by the defendant on lease to the plaintiff-respondents who had paid him Rs.4000/-, there would have been some entry in the revenue record on the basis of writing Ex.D1. However, no such revenue record has been placed on record. It is the case of the defendant himself that he came to know about the agreement Ex.P1 after 10/15 days from 21.6.1988. However, defendant served no notice upon the RSA No. 2812 of 1995 8 plaintiffs that they were responsible for the fabrication of the some agreement. Neither the defendant filed any complaint against the plaintiffs. Ex.P6 is a certified copy of the Civil Suit No. 320 of 1989. This suit was instituted on 6.9.1989 and was decided on 26.9.1989. It was filed by Lakhmir Singh against the plaintiffs for permanent injunction. In this case, the defendant has neither challenged the agreement Ex.P1 nor has pleaded that in fact on 21.6.1988, he wanted to execute a different type of agreement like Ex.D1 or that he wanted to lease out the land in favour of the plaintiffs at the rate of Rs.4000/- per killa. It was a suit for injunction and defendant Lakhmir Singh alleged that he is in possession of the property and plaintiffs are interested to dispossess him. DW2 Sukhdev Singh Bedi, Deed Writer in his cross-examination admitted that document Ex.P1 was typed out by him and it was signed by Lakhmir Singh defendant in his presence and he received a sum of Rs.15000/- in cash and gave a note in this regard in the agreement in dispute. Thus, the execution of the agreement Ex.P1 stands established even from the evidence produced by the appellant himself. No doubt the grant of specific performance is an equitable remedy and court is not bound to grant the relief of specific performance simply on the ground that there existed a valid agreement to sell. However in the present case, there is nothing which dis-entitles the plaintiffs from the grant of said relief. There are no such circumstances as mentioned in Section 20 of the Act which exists in the present suit, on the basis of which specific performance of the agreement to sell should have been declined by the courts below. There is no dispute with the proposition as laid down by the Hon'ble Supreme Court of India in the cases cited as Veluyudhan Sathyadas Vs. Govindan Dakshyani 2002(2) PLJ 152 and M/s Glitter Buildcon Pvt. Ltd. Versus Sanjay Grover 2004(1) RCR© 20. However as stated above, there is nothing on record which dis-entitles the plaintiff-appellants from grant of the relief of specific performance. The last contention of the learned counsel is also of no help to him. RSA No. 2812 of 1995 9 Simply because a penalty clause has been imposed in the agreement to sell that would not dis-entitle the plaintiff-appellant from claiming the specific performance of the agreement to sell. Such a clause is penalty clause for violation of terms but is not an alternative to the specific performance. A perusal of the terms of contract indicates stipulation for damages was made only for the purpose of securing performance of the contract and not for the purpose of giving an option of paying money in lieu of specific performance. In a suit for specific performance of an agreement to sell, claim of damages is an alternative relief and does not dis-entitle the plaintiff to the main relief of specific performance. I am supported in my view by the judgment of the Hon'ble Apex Court cited as Manzoor Ahmed Margray V. Gulam Hassan Aram & Others JT 1999(8) SC 34 and Moti Lal Jain Vs. Ramdasi Devi & others 2000(3) Civil Court Cases 610(SC). No other point has been argued. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. November 21 , 2008 (RAKESH KUMAR GARG) nk JUDGE