Regular Second Appeal No. 4710 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4710 of 2011 (O&M) Date of decision : November 30, 2011 Smt. Trishla Devi Jain ....Appellant versus Smt. Vineeta Singla ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kuldeep Singh, Advocate for Mr. GS Hooda, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 13701.C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of 56 days in refiling the appeal is condoned. RSA No. 4710 of 2011 Defendant Trishla Devi Jain has filed the instant second appeal having failed in both the courts below. Respondent-plaintiff Vineeta Singla filed suit against defendant-appellant for specific performance of agreement to sell dated Regular Second Appeal No. 4710 of 2011 (O&M) -2- 16.12.2003. The plaintiff alleged that the defendant agreed to sell the suit plot to the plaintiff for Rs 17,61,360/- at the rate of Rs 3280/- per square yard vide agreement-cum-receipt dated 16.12.2003. The plaintiff paid Rs 50,000/- as token money to the defendant at the time of agreement whereas further amount of Rs 1,50,000/- towards token money was paid to the defendant vide two cheques dated 17.12.2003. Sale deed was to be executed upto 15.2.2004. Permission from Municipal Corporation, Faridabad (MCF) and Haryana Urban Development Authority (HUDA) was to be obtained by the defendant for transfer of plot to the plaintiff. Plaintiff further gave cheque dated 30.12.2003 for Rs 50,000/- towards further part payment of the sale consideration, but the said cheque was not encashed by the defendant. Since it happened to be holiday on 14.2.2004 and 15.2.2004, the plaintiff sent letter and telegram to the defendant to execute the sale deed either on 13.2.2004 or on 16.2.2004. Accordingly, the plaintiff remained present in the office of Sub Registrar on both the said dates with requisite amount but the defendant did not turn up and committed breach of the agreement although the plaintiff has always been ready and willing to perform her part of the contract. It was also alleged that the agreement on behalf of the plaintiff was signed by her husband. The defendant, inter alia, pleaded that she had agreed to sell suit property to plaintiff's husband at the rate of Rs 4580/- per square yard i.e. for total consideration of Rs 24,59,460/-. Receipt of earnest money of Rs 2 lacs was admitted. Plaintiff's husband obtained signatures of Regular Second Appeal No. 4710 of 2011 (O&M) -3- defendant on blank printed proforma in which plaintiff was mentioned as proposed vendee and agreed rate was mentioned to be Rs 3280/- per square yard instead of Rs 4580/- per square yard. The defendant also alleged that to avoid resumption of the plot, the defendant raised construction by spending Rs 6,40,000/-. She also paid Rs 1,00,138/- and Rs 42,960/- to concerned authorities for extension fee, water connection charges, share in common walls etc. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Faridabad vide judgment and decree dated 6.10.2010 decreed plaintiff's suit but also allowed the defendant's claim for additional amount spent on construction etc. First appeal preferred by the defendant stands dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 6.5.2011. Feeling still dissatisfied, the defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The defendant in her written statement has virtually admitted the impugned agreement although pleaded that the agreement was with plaintiff's husband and not with the plaintiff and it was also alleged that the agreed rate was Rs 4580/- per square yard although Rs 3280/- per square yard was filled in agreement which is in printed proforma. The plaintiff has also led sufficient evidence to prove due execution of the agreement by the defendant. The plaintiff also remained present in the office of Sub Registrar Regular Second Appeal No. 4710 of 2011 (O&M) -4- on 13.2.2004 and 16.2.2004 as per oral and documentary evidence led by her. The plaintiff also filed the suit immediately on 24.4.2004. Thus, it is manifest that the plaintiff has always been ready and willing to perform her part of the contract. In fact, it is not even the case of the defendant that the plaintiff was not ready or willing to perform her part of the contract. The plaintiff even got prepared bank drafts Exs. P14 to P19 for the balance sale consideration. Counsel for the appellant vehemently contended that agreement has been executed by plaintiff's husband and not by the plaintiff herself and therefore, the agreement cannot be specifically enforced. Reliance in support of this contention has been placed on judgment of this Court in Vipan Kumar vs Smt. Asha Lata Ahuja and others, 2010(7) RCR (Civil) 1317. I have carefully considered the aforesaid contention but the same cannot be accepted. It is pleaded in the plaint itself that the agreement has been executed on behalf of the plaintiff by her husband. The plaintiff as well as her husband have stepped into witness box and have owned the agreement on behalf of the plaintiff. Written agreement also depicts that the agreement was executed in favour of the plaintiff and on her behalf, it was signed by her husband. Consequently, it cannot be said that the agreement is not enforceable at the instance of plaintiff. The position might have been different if the plaintiff had disowned the agreement. The plea of the defendant that agreed sale price was at the rate Regular Second Appeal No. 4710 of 2011 (O&M) -5- of Rs 4580/- per square yard cannot be accepted because it is categorically mentioned in the agreement that the agreed sale price was at the rate of Rs 3280/- per square yard. Oral evidence led by the defendant to the contrary cannot be accepted to displace the contents of the written document admittedly executed by the defendant. Counsel for the appellant also contended that the agreement is not duly stamped. However, no such objection appears to have been raised when the agreement was admitted in evidence. Consequently, in view of section 36 of the Indian Stamp Act, no such objection can be raised at subsequent stage. Counsel for the appellant relied on judgment of Calcutta High Court in the case of Smt. Indrawati Tiwari vs Sheo alias Sew Saran Sharma and Ors., 2008(2) ICC 664. However, in that case, the agreement was sent to Collector for payment of deficient court duty after impounding the agreement. Even according to this judgment, the plaintiff cannot be non-suited on this ground. There is concurrent finding by both the courts below decreeing suit of the plaintiff. The said finding is based on proper appreciation of pleadings and evidence of the parties and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in exercise of second appellate jurisdiction. Concurrent finding recorded by the courts below to decree suit of the plaintiff is the only reasonable finding that can be arrived at on the basis of pleadings and evidence of the parties. No question of law much less Regular Second Appeal No. 4710 of 2011 (O&M) -6- substantial question of law arises for adjudication in the instant second appeal. The appeal is completely meritless and is accordingly dismissed in limine. ( L.N. Mittal ) November 30, 2011 Judge 'dalbir'