R.S.A. No. 4782 of 2002 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 4782 of 2002 (O&M) Date of Decision : 21.1.2009 Kamlesh Dhamija .......... Appellant Versus Gurbachan Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sanjeev Gupta, Advocate for the appellant. Mr. S.K. Sharma, Advocate for respondents No. 1 & 2. Mr. C.B. Goel, Advocate with Mr. Manu Sharma, Advocate for respondent No.3. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 27.11.1999 and 7.6.2000 passed by the learned courts below vide which suit filed by the plaintiff-appellant for recovery of earnest money of Rs. 75000/-, has been ordered to be dismissed. The plaintiff-appellant entered into an agreement of purchase with defendants No.1 & 2 on 25.7.1991. It was agreed between the parties that sale deed would be executed on 24.1.1992. One of the stipulations in the agreement was that on or before 15.9.1991 the defendants have to deposit a sum of Rs. 2,00,000/- in the R.S.A. No. 4782 of 2002 (O&M) -2- State Bank of Patiala, Sirsa. It was also stipulated in the said agreement that in the event of non-deposit of Rs. 2,00,000/- on or before 15.9.1991, the earnest money would stand forfeited. The case set up by the plaintiff was that on 15.9.1991 being a holiday he went to the bank on 16.9.1991 and prior thereto approached defendants No. 1 & 2 for possession so as to enable him to deposit the amount in the bank. It was further pleaded that in spite of the fact that he had gone to deposit the amount in the bank but amount was not accepted, because defendants No.1 & 2 did not come present. No fault could,thus, be found with the plaintiff / appellant so as to deny him right of recovery of earnest money. The case of the plaintiff further is that on 24.1.1992 plaintiff went to the office of Sub Registrar to get the sale deed executed, however, respondent-defendants No.1 & 2 did not come present and consequently a notice was issued to defendants No.1 & 2 on 15.2.1994. As defendants No.1 & 2 failed to perform their part of contract, therefore, suit for recovery was filed. The suit was contested by defendants No.1 & 2 by taking a plea that as the plaintiff-appellant failed to deposit the amount with the bank on or before 15.9.1991 in terms of the agreement entered into between the parties, the amount of earnest money stood forfeited and, therefore, he was not entitled to maintain the suit. It was also pleaded that the plaintiff was not willing to perform R.S.A. No. 4782 of 2002 (O&M) -3- his part of contract and, therefore, cannot claim back the earnest money, which stood forfeited. The learned Courts below on appreciation of evidence have recorded a concurrent finding that the suit was not competent : firstly for the reason that the plaintiff has not enforced his agreement for sale; secondly the plaintiff has not chosen to file a suit for specific performance and merely filed a suit for recovery. The learned Courts below also held that even though in the statement made in the court plaintiff had stated that he had gone to the State Bank of Patiala to deposit Rs. 2,00,000/- in bank but defendants did not turn up. The statement can not be believed as he did not explain as to why the amount was not deposited. Furthermore, the Courts held that the plaintiff chose not to examine any official of the State Bank of Patiala to prove the fact that he intended to deposit a sum of Rs. 2,00,000/- and had completed formalities in this regard. No application is forthcoming. The Courts held that the best evidence was withheld, therefore, adverse inference was to be drawn against the plaintiff. Consequently, it was held that the plaintiff has failed to perform his part of the contract. The learned counsel for the appellant vehemently contends that the findings recorded by the learned Courts below are perverse as it was for the defendants-respondent to have handed over possession so as to enable him to deposit the amount. It is also the contention of the learned counsel for the appellant R.S.A. No. 4782 of 2002 (O&M) -4- that once it was proved that he had gone to the office of Sub Registrar on 24.1.1992 where the defendants-respondent did not appear then it had to be held, that the findings that the plaintiff was not willing to perform his part of contract, cannot be sustained. The plaintiff after getting himself marked present before the Sub Registrar, did not take any steps for enforcement of contract. No suit for specific performance has been filed. Therefore, it could not be said that he was willing to perform his part of contract. The concurrent finding of fact recorded by the learned Courts below that the plaintiff was not willing to perform his part of contract cannot be challenged in this regular second appeal as this Court cannot reappraise the evidence to come to a conclusion different from the one arrived at by the learned Courts below unless it is perverse. This appeal raises no question of law muchless substantial question of law for consideration by this Court. No merit. Dismissed. 21.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE