RSA No.2016 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 2016 of 1989 1. Date of decision: 26.11.2011. Jaswant Singh ...Appellant Versus Lakha Ram ...Respondent 2. R.S.A.No. 2046 of 1989 Jaswant Singh ...Appellant Versus Lakha Ram ...Respondent CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA. Present: None for the appellant Mr. Vipin Kumar, Advocate for Mr. Amrik Singh Kalra, Advocate for Respondent No.1 ***** G.S.SANDHAWALIA, J (ORAL). By this common order, two appeals i.e. RSA Nos. 2016 of 1989 and 2046 of 1989 are being disposed off. The facts have been taken from RSA No.2016 of 1989 titled as 'Jaswant Singh versus Lakha Singh' as the issue involved in both the appeals are common and the parties are also same. The present appeal has been filed by the defendant/appellant aggrieved against the judgment and decree dated 9th November, 1987 passed by Sub-Judge Ist Class, Nakodar RSA No.2016 of 1989 -2- wherein suit for recovery of Rs. 34,000/- i.e. Rs.25,000/- as earnest money and Rs.9,000/- on account of interest use and occupation at the rate of 12% per annum with effect from 29.11.1982 to 28.11.1985 have been awarded. The said judgement and decree has been upheld by the learned Additional District Judge, Jalandhar on 25.05.1989. The case of the plaintiff-respondent was that the defendant executed an agreement on 29th November, 1982 to sell half share of land measuring 39 Kanals 11 marlas at the rate of Rs.40,000/- per acre. Out of the sale consideration, a sum of Rs.25,000/- was paid as earnest money whereas the sale deed was to be executed on 28.05.1983. It was also agreed that if the defendant failed to perform his part of the agreement then he will return double of the earnest money and if plaintiff goes back from his promise then the earnest money will be forfeited. The plaintiff always remained ready and willing to perform his part of the contract and on the stipulated date, he was present in the office of the Sub- Registrar to perform his part of the contract but the defendant did not turn up. Further it is claimed that son of the defendant challenged the ownership of the defendant in the suit land through separate suits. It was also prayed that the title of the defendant in the suit land was doubtful, therefore, the plaintiff is entitled to refund of his earnest money with interest @ 12% per annum. The said suit was contested by the defendant on the plea that he was always ready and willing to perform his part of the contract and rather the plaintiff has resiled from his promise, RSA No.2016 of 1989 -3- therefore, his earnest money be deemed as forfeited. The trial court after examining the pleadings and the evidence on the record, came to the conclusion that there was an admission on behalf of the defendant that there was litigation regarding the property which was ancestral property under Hindu Law. Therefore, in the property in dispute Harbhajan Singh son of the defendant has a right by birth and he claimed his right through suits which are Ex. P-3 and P-4 and that the plaintiff was impleaded as a party in both the suits. The defendant had failed to disclose the defect in his title to which he was bound under Section 55 of the Transfer of Property Act, 1882. Accordingly, the plaintiff had a right to claim his deposit back, as he had also gone to the Sub-Registrar and marked his attendance for getting the sale deed executed. Regarding the interest, the demand of the plaintiff @ 12% was held reasonable in view of Section 34 of CPC though it was not mentiond in the agreement between the parties. In appeal the defendant was also unsuccessful and the said finding was affirmed by the Additional District Judge and the appeal filed by the defendant-appellant was dismissed, while noticing that the appellant had undertaken to make the payment of the decretal amount within 3 months and he was directed to make the payment within three months from that day. Relevant portion is reproduced below: “The appellant has now undertaken to make the payment of the decretal amount within 3 months. So, as much, he is directed to make the payment of the said decretal amount within a period of 3 months from today. RSA No.2016 of 1989 -4- Decree sheet be prepared accordingly. File be consigned to record room.” The defendant then filed this appeal against the impugned judgments of the Courts below. The perusal of the grounds of appeal shows that the appellant contested the rate of the interest which was awarded on the ground that there was no clause of interest in the agreement and, therefore, the Courts below were not justified to grant interest for the period earnest money remained with the appellant. Section 34 of the Code of Civil Procedure provides that in the decree for payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged. Accordingly the Courts below have decreed the suit and held that the plaintiff is entitled to 12% interest per annum on the amount which the defendant retained and deprived the plaintiff of the use of the said amount. The grant of rate of interest is the discretionary power of the Courts below and which cannot be interfered in a Regular Second Appeal and there is no substantial question of law which arises from the facts and circumstances. Even otherwise no representation is there on behalf of the appellant regarding the said appeal even though the said appeal was listed for hearing yesterday also. Accordingly, the said appeal is dismissed without any order as to costs. (G.S.SANDHAWALIA) November 26, 2011 JUDGE hemlata