RSA No.3534 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3534 of 2007(O&M) Date of decision: 24.2.2009 Piara Singh ......Appellant Versus Naranjan Dass and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Mukal Aggarwal, Advocate for the appellant. * * * Rakesh Kumar Garg, J. This is defendant's 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 the agreement to sell dated 29.11.2001 was decreed. Briefly stated, the facts the case are that the plaintiff- respondents filed suit for specific performance in respect of the agreement of sale dated 29.11.2001 against the defendant-appellant. As per the plaint, the agreement was executed by the defendant-appellant @ Rs.2 lacs per acre and the total sale price of the land in question was Rs.3,80,000/-. It was also pleaded by the plaintiffs that Rs.3,00,000/- were paid by the plaintiffs to the defendant at the time of the execution of the agreement to sell. The plaintiffs also pleaded that the sale deed was to be executed and registered on or before 10.12.2002. The plaintiffs claimed that they had been ready and willing to perform their part of the contract. In the written statement, the defendant-appellant pleaded that the plaintiffs were running the Commission Agents' shop in the Grain Market at Zira and the defendant used to sell his crop at their shop. It was RSA No.3534 of 2007(O&M) 2 also pleaded that Commission Agents kept the signatures and thumb impression of the customers on the documents. The defendants further pleaded that price of the land in the village was Rs.5 lacs per acre and no prudent man would sell the land @ Rs.2,00,000/- per acre. The plaintiffs have no land in village Talwandi Jalle Khan where the land is situated. Even they have no relative in the village and as such, there is no question of purchasing the land in the said village. After recording of the evidence, the learned Additional Civil Judge, Senior Division, Zira, decreed the suit of the plaintiffs for specific performance vide judgment and decree dated 10.5.2007. Against the aforesaid impugned judgment and decree, the defendant-appellant approached the Lower Appellate Court which upheld the order of the trial Court. Still not satisfied, the defendant has filed the present appeal challenging the aforesaid judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have erred in law while granting the relief of possession by way of specific performance of the agreement of sale dated 29.11.2001 as this was not a fit case for grant of such relief as the appellant in his written statement has categorically pleaded that the respondents were Commission Agents and the facts of the case reveal that there was no intention of the parties to effect the sale of the land which was the subject matter of the agreement in question and in fact it was a security document on which his thumb impression were obtained by the plaintiff-respondents to secure the loan transaction. In support of his argument, learned counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court in the case of Manohar Lal alias Manohar Singh v. Maya AIR 2003 SC 2362 wherein the plaintiff was held entitled to refund of earnest money in RSA No.3534 of 2007(O&M) 3 a case of specific performance of the agreement. On the basis of the aforesaid argument, learned counsel for the appellant has stated that the following substantial question of law arises in this appeal: “Whether the agreement to sell got executed by the Commission Agent from his customer for securing the loan advanced to his customer can be specifically enforced against the customer? Learned counsel further prayed for acceptance of the appeal and setting aside the impugned judgment and decrees of the Courts below. I have heard learned counsel for the appellant. I find no merit in the contentions raised by him. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellant duly executed agreement Ex.P-1 in favour of the plaintiff-respondents for the sale of the land described therein and the plea of the appellant that the said agreement was a loan security document is baseless. The aforesaid findings have been returned by the Courts below taking notice of the facts proved on record that the appellant failed to explain the presence of this thumb impression in the register of the Deed Writer on the date of execution of the Agreement Ex.P-1 which was duly proved by PW-3 Shivcharan Dass in his affidavit Ex.PW3/A wherein he stated that the agreement was entered in his register and appellant Piara Singh thumb marked in his register against the relevant entry. The appellant has failed to explain as to how his thumb impression appeared in the Deed Writer register if the document Ex.P1 was only a security document obtained by a Commission Agent. The judgment relied upon by the appellant is of no help to him in the given facts and circumstances of the case. In Manohar Lal alias Manohar Singh's case RSA No.3534 of 2007(O&M) 4 (supra), the Courts below decreed the suit for specific performance of the agreement. However, in the appeal before the High Court, it was observed that the plea of the defendant that her thumb impression were obtained on some plain paper, cannot be outrightly rejected. Moreover, in that case, only a paltry amount of Rs.2,000/- was paid to the defendant as earnest money for purchase of land measuring 24 kanals @ Rs.10,000/- per acre and in those circumstances, the High Court held that it will be justified if instead of passing decree for specific performance of agreement to sell, the suit is decreed for refund of earnest money. In appeal, against the judgment of the High Court filed by the plaintiffs, the Hon'ble Supreme Court held as under: “On such facts, we cannot find fault with the view taken by the High Court that a just, legal and proper exercise of judicial discretion would be not to direct specific performance but to direct the refund of such consideration as was paid.” Thus, the aforesaid judgment of the Hon'ble Supreme Court in Manohar Lal alias Manohar Singh's case (supra) was altogether on different facts. It is also relevant to mention here that on the basis of its findings, the Courts below have exercised their judicial discretion to direct specific performance of the agreement in question. No fault can be found in the judicial discretion exercised by the Courts below by this Court while exercising its jurisdiction under Section 100 of the CPC. No substantial question of law arises in this appeal. Dismissed. February 24, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.3534 of 2007(O&M) 5