RSA No.3091 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL NO.3091 OF 2010 DATE OF DECISION: 2 nd March, 2012 Megh Raj .... Appellant Versus Subhash Rani & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. * * * * PRESENT: Mr. Malkeet Singh, Advocate for the appellant. Mr. J. S. Bandhohal, Advocate for the respondents. * * * * L.N. MITTAL, J. (ORAL) Megh Raj-plaintiff who was partly successful in the trial Court but has been completely non-suited by the lower appellate Court has filed this second appeal. Plaintiff-appellant filed suit against defendant Baljinder Singh @ Barjinder Singh (since deceased and represented by respondents as his legal representatives) alleging that the defendant agreed to sell the suit land measuring 2 kanals 16 marlas to the plaintiff for Rs.32,237/- (Rupees thirty two thousand two hundred thirty seven) and received Rs.10,000/- (Rupees ten thousand) as earnest money and executed agreement dated 03.07.1996. Sale deed was to be executed within fifteen days of sanction of mutation of inheritance of defendant's father in favour of defendant and other legal heirs. However, he kept on putting off the execution of the sale deed on one pretext or the other. Meanwhile wife of defendant filed suit for maintenance against him along with permanent injunction. In that suit, defendant initially admitted claim RSA No.3091 of 2010 -2- of the present plaintiff but later on, in connivance with his wife, refused to execute the sale deed. The said suit was dismissed as withdrawn on 27.05.2000. After withdrawal of said suit, the plaintiff requested the defendant to execute the sale deed but he failed to do so. On approaching the Patwari on 12.07.2000, the plaintiff learnt that inheritance mutation of defendant's father had already been sanctioned in favour of defendant and other legal heirs. The plaintiff always remained ready and willing to perform his part of the contract but the defendant committed breach thereof. Accordingly plaintiff sought possession of the suit land by specific performance of the aforesaid agreement and also claimed permanent injunction. The defendant in the written statement denied the plaint averments. Execution of the impugned agreement was denied. Receipt of earnest money was also denied. Agreement was alleged to be result of fraud. The agreement was also alleged to be vague as no khasra number and khewat number of the land had been mentioned in it. It was also pleaded that suit is barred by limitation. Various other pleas were also raised. Learned Civil Judge (Junior Division), Mohali vide judgment and decree dated 24.12.2008, instead of decreeing the suit for specific performance of the agreement, decreed the suit for refund of earnest money of Rs.10,000/- along with interest @ 6% per annum from the date of filing of suit till recovery. Plaintiff by filing first appeal against judgment and decree of the trial Court sought specific performance of the agreement. Defendant filed cross-objections in the appeal seeking dismissal of the suit. Learned Additional District Judge, Mohali vide judgment and decree dated 25.11.2009 dismissed the plaintiff's appeal and allowed cross-objections filed by defendant and dismissed the suit in toto being barred by limitation. Feeling aggrieved, plaintiff has filed this RSA No.3091 of 2010 -3- second appeal. I have heard learned counsel for the parties and perused the case file. As regards limitation, counsel for the appellant contended that in suit filed by defendant's wife Subhash Rani (respondent No.1 herein) against the defendant, to which present plaintiff was also party, temporary injunction was granted vide order dated 12.05.1999 thereby restraining defendant herein from alienating the suit land and restraining the plaintiff herein from purchasing the same and the said suit was dismissed as withdrawn on 27.05.2000 and therefore, the instant suit filed on 17.08.2000 cannot be said to be time barred. There is considerable merit in the contention. Sale deed was to be executed in favour of plaintiff on sanctioning of inheritance mutation of father of the defendant. The said inheritance mutation was sanctioned on 29.11.1996. Plaintiff's plea that he was not aware of sanction of the said mutation till 12.07.2000 when he contacted halka Patwari and learnt of the sanction of the mutation, is completely untenable because defendant's brother had also agreed to sell his share in the land of his father and defendant's brother executed sale deed dated 25.02.1997 in favour of the plaintiff and consequently at that time, the plaintiff became aware of sanctioning of inheritance mutation of defendant's father. Consequently limitation period started on expiry of fifteen days therefrom because the sale deed was to be executed within fifteen days of sanction of mutation. Consequently limitation period was upto 12.03.2000. However in the meantime, there was temporary injunction order dated 12.05.1999 restraining the defendant from alienating the suit land. The said injunction stood vacated when suit filed by wife of the defendant was dismissed as withdrawn on 27.05.2000. So during the said period of a little more than one RSA No.3091 of 2010 -4- year, the plaintiff could not have filed suit for specific performance of the impugned agreement. Taking into consideration the same, the suit filed on 17.08.2000 is within limitation. Counsel for the appellant next contended that relief of specific performance of the agreement should be granted because the plaintiff always remained ready and willing to perform his part of the contract. This contention cannot be accepted in toto. Wife of defendant had filed her suit against defendant and present plaintiff on 16.07.1996 but there was no injunction order till 12.05.1999. So during that period, the plaintiff could very well have filed suit for specific performance of the agreement. However, during that period, the plaintiff did not take any step to seek specific performance of the agreement. The plaintiff neither served any notice on the defendant nor filed suit for specific performance of the agreement. In addition to the aforesaid, description of the land agreed to be sold has not been given in the impugned agreement. In the absence of description of the land agreed to be sold in the agreement, the agreement is vague and cannot be specifically enforced. For the reasons aforesaid, the trial Court rightly granted relief of refund of earnest money instead of ordering specific performance of the impugned agreement. However, the trial Court granted interest only since the date of filing of suit and not since the date of agreement till date of filing of suit. The plaintiff is entitled to interest for the said period also. There is no reason to decline interest to the plaintiff for the said period. Besides it, interest @ 6% per annum granted by the trial Court is also inadequate. The agreement is dated 03.07.1996. At that time, interest rates were very high. Interest rates started declining some time in the year 2000 i.e. at the time of filing of the suit. RSA No.3091 of 2010 -5- In these circumstances, in my considered opinion, the plaintiff is entitled to interest @ 15 % per annum since the date of agreement till date of filing of suit, @ 12% per annum since the date of filing of suit till decree of the trial Court and @ 6% per annum since decree of trial Court till recovery. Substantial question of law arises in this second appeal as to whether finding of the lower appellate Court that the suit is barred by limitation is perverse and illegal and therefore, unsustainable. For the reasons already recorded, this substantial question of law is answered in favour of the plaintiff- appellant holding that suit is well within limitation and finding of the lower appellate Court to the contrary is perverse and illegal and is, therefore, set aside. Substantial question of law regarding period of interest as well as rate of interest to which the plaintiff is entitled, also arises for adjudication in this second appeal and the same is answered in the manner noticed in the preceding paragraph. As a necessary consequence of the discussion aforesaid, the instant second appeal is allowed partly. Judgment and decree of the lower appellate Court are set aside. Judgement and decree of the trial Court are modified. Suit filed by the present-plaintiff is decreed for recovery of Rs.10,000/- along with interest thereon @ 15% per annum since 03.07.1996 the date of agreement till 17.08.2000 the date of filing of the suit, @ 12% per annum since 17.08.2000 the date of filing of the suit till 24.12.2008 the date of decree of the trial Court and @ 6% per annum since 24.12.2008 the date of decree of the trial Court till recovery, with proportionate cost throughout. (L. N. MITTAL) JUDGE 2nd March .2012 'raj'