R.S.A. No. 2852 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2852 of 2008 (O&M) Date of Decision : 26.2.2009 Harish Chander & another .......... Appellants Versus Charanjit Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Gurcharan Dass, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 8438-C of 2008 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 510 days in refiling the appeal. For the reasons stated in the application, C.M. is allowed. The delay of 510 days in refiling the appeal is condoned. R.S.A. No. 2852 of 2008 This regular second appeal is directed against the judgments and decree dated 9.2.2004 and 22.8.2006 passed by the learned Courts below vide which in a suit filed by the plaintiff for specific performance the learned Courts decreed the suit for refund of earnest money with interest @ 12% per annum. The plaintiff-respondent brought a suit to enforce the R.S.A. No. 2852 of 2008 2 agreement of sale dated 6.11.1995 on the plea that defendant / appellant through his general power of attorney had entered into an agreement for sale of the house. The sale consideration was fixed at Rs. 2,40,000/- out of which Rs. 1,20,000/- was received as earnest money and the sale deed was to be executed on 3.9.1996. The case of the plaintiff/ respondent was that he was always ready and willing to perform his part of contract. The breach of contract was committed by the defendant / appellants and therefore he sought specific enforcement of the agreement. The suit was contested on the plea that the suit was false and frivolous and there was no contract of sale of property in question, that there was no legal, valid and subsisting contract between the parties, that alleged agreement dated 6.11.1995 is false and frivolous document. On merits, averments made in the plaint were denied. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether defendant through her general attorney Smt. Saroj wife of Brij Mohan entered into agreement to sell the suit property in favour of the plaintiff vide agreement dated 6.11.1995 and defendant through her attorney received Rs. 1,20,000/- as EM at the time of agreement ? OPP 2. Whether the general attorney received a sum of Rs. 10,000/- on 17.1.1996 about acknowledgment was given at the reverse of the agreement dated 6.11.1995 ? OPP 3. Whether the plaintiff is ready and willing to perform entire part of the agreement ? OPD R.S.A. No. 2852 of 2008 3 4. Whether the defendants have committed breach of agreement ? OPD 5. Whether the agreement in question is forged and fabricated document ? OPD 6. Whether the plaintiff is entitled to specific performance of the agreement. If so on what terms ? OPD 7. Whether the plaintiff is entitled to alternative relief of refund of advance money and payment of damages if so to what amount ? OPP 8. Whether the suit is false and frivolous and defendant is entitled to special costs ? OPP 9. Relief.” The learned trial Court on appreciation of evidence recorded a concurrent finding of fact that execution of sale agreement was proved. Though in view of findings recorded the decree of specific performance was required to be passed. However, keeping in view the peculiar facts and circumstances of the case and also that an alternative relief was sought the refund of earnest money along with interest and damages, the learned Courts invoked the provisions of Section 20 of the Specific Relief Act and decreed the suit for recovery of earnest money with an interest at the rate of 12% per annum from the date of advancement of earnest amount till realization. The learned counsel for the appellants contends that the judgments and decree passed by the learned Courts below are perverse as the same are outcome of misreading evidence. The learned counsel for the appellants further contends that the learned Courts below committed an error in accepting the execution of the R.S.A. No. 2852 of 2008 4 agreement though the attesting witnesses failed to state that they have signed the same in presence of each other. This plea of the learned counsel for the appellants cannot be accepted. Once the execution of the agreement was proved on record and the attesting witnesses admitted their signatures the learned Court rightly held that execution of agreement stood proved. The provisions of section 63 of the Transfer of Property Act are not applicable to prove agreement to sell. The plea is totally misconceived. No substantial question of law arises for consideration by this Court in this appeal. No merit. Dismissed. 26.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE