R.S.A. No. 1301 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1301 of 2009 (O&M) Date of Decision : 24.3.2009 Onkar Nath and another ....Appellants Versus Majhail Singh & another ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.M.K.Dogra, Advocate for the appellants. ..... MAHESH GROVER, J. This is a defendants' second appeal against the judgments of the learned trial Court dated 12.1.2004 and the first Appellate Court dated 27.11.2008. A suit for specific performance was filed by the plaintiffs/respondents seeking enforcement of the agreement to sell dated 14.12.1996 regarding the suit property for a total consideration of Rs.1,95,000/- out of which it was alleged that Rs.75,000/- were paid as a part payment at the time of execution of the agreement to sell. The sale deed was to be executed upto 31.3.1998 on payment of the balance sale consideration. Ram Parkash, who was the executor, died on 27.9.1997. He was unmarried and was survived by his legal representatives who are the present appellants and who inherited his R.S.A. No. 1301 of 2009 (O&M) -2- property which included the suit property. It was alleged by the plaintiffs that on the appointed day they remained present in the office of the Sub-Registrar with the balance amount of consideration but the appellants failed to appear. Prior thereto, legal notices dated 15.11.1997 and 21.3.1998 were sent through registered post as also by UPC asking the appellants to abide by the agreement. The appellants, who contested the suit, pleaded fraud and denied that Ram Parkash had ever executed the agreement or ever received any amount pursuant to that. It was pleaded that the notice which was given on 15.11.1997 was duly replied to. The following issues were struck by the learned trial Court :- 1. Whether Ram Parkash executed an agreement to sell dated 14.12.96 in respect of suit property in favour of the plaintiffs?OPP 2. Whether the plaintiffs remained ready and willing and are still ready and willing to perform their part of contract of the agreement to sell?OPP 3. Whether the plaintiffs are entitled to possession of the suit property by way of specific performance of the agreement to sell dated 14.12.96?OPP 4. If issue No.3 is not proved whether the plaintiffs are entitled to recovery of Rs.1,95,000/- from the defendants as damages for breach of the contract by the defendants?OPP R.S.A. No. 1301 of 2009 (O&M) -3- 5. Whether the plaintiffs have no locus standi to file the present suit?OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the plaintiffs have concealed the material facts from the court, if so its effect?OPD 8. Whether the plaintiffs have no cause of action to file the present suit?OPD 9. Relief. Upon appraisal of evidence both the Courts below concluded that the execution of agreement to sell dated 14.12.1996 has been validly proved and so was the passing of the part sale consideration of Rs.75,000/- to the deceased Ram Parkash. The willingness and readiness of the plaintiffs/respondents to perform their part of the agreement was substantially proved as they have produced cogent evidence to show that they were present in the office of the Sub-Registrar where they got themselves marked and were having Rs.1,20,000/- in the shape of two demand drafts of Rs.60,000/- each. The plaintiff's suit was accordingly decreed and it was directed that the appellants shall execute the sale deed. Aggrieved by the aforesaid findings, the appellants are in regular second appeal. It has been contended by the learned counsel for the appellants that there was no clause in the agreement which contemplated the specific enforcement of the agreement and the only clause which could be resorted to in the event of the failure to R.S.A. No. 1301 of 2009 (O&M) -4- honour the agreement was the return of double the amount of earnest money which was paid. It was thus contended that the specific enforcement of the agreement could not have been ordered. I have heard the learned counsel for the appellants and have perused the impugned judgments. The contention of the learned counsel for the appellants as noticed above has to be rejected. The specific enforcement of an agreement under the Specific Relief Act is the remedy which is afforded by a statute to an incumbent. The same does not have to be compressed into an agreement for even if it is not mentioned in the agreement, the legal remedy which is available to a person cannot be either altered or taken away by reading a clause in the agreement. Consequently, the contention is totally misplaced. The next contention that has been raised by the learned counsel for the appellants is that the only clause that could be enforced in the event of the violation of the terms of the agreement was the return of double the earnest amount is also misplaced. In any eventuality, it is open to the courts while dealing with the suits for specific performance to grant any of the alternate relief which may include the relief in the terms of the agreement or otherwise. Section 20 of the Specific Relief Act is unambiguous in its terms but the discretion that has to be exercised by the Courts has to be based on sound reasoning and if the Courts come to the conclusion that the agreement is capable of being enforced and if thereafter such a course is resorted to then it cannot be said that merely because the discretion under Section 20 of the Specific Relief Act was not resorted to the R.S.A. No. 1301 of 2009 (O&M) -5- decree for specific enforcement of the agreement to sell could be termed to be bad. A perusal of the facts shows that the plaintiffs/respondents led cogent evidence to establish the execution of the document Ex.P1. Tarlochan Lal scribe appeared as PW1 and admitted that the agreement was scribed by him and that Ram Parkash, who executed the agreement, received the earnest money in his presence. PW3 Ujagar Singh is the marginal witness who has also admitted to the same effect. Similarly, readiness and willingness is also proved as the plaintiffs/respondents proved that they were present in the office of the Sub-Registrar on the appointed day along with two demand drafts of Rs.60,000/- each which was the amount required to be paid pursuant to the agreement to sell. In this view of the matter, all the three ingredients which are required to be satisfied in a suit for specific performance of an agreement to sell stood satisfied and therefore the Courts were very well within their rights to have passed the decree in the shape as it has been done. There is thus no infirmity in the findings recorded by the Courts below. Dismissed. 24.3.2009 (MAHESH GROVER) JUDGE dss