Regular Second Appeal No. 2535 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2535 of 2009(O&M) Date of Order: 14.07.2009 Kehar Singh and others ....Appellants Versus Pirthi Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Gurmail Singh Duhan,Advocate for the applicant-appellants. RAJIVE BHALLA, J (Oral). C.M.No.7502-C of 2009 Prayer in this application is for condoning the delay of 7 days in re-filing the appeal. For the reasons stated in the application, delay of 7 days in re- filing the appeal is condoned. C.M. stands disposed of accordingly. C.M.No.7503-C of 2009 Prayer in this application is for making good the deficiency in Court fee. Counsel for the applicant-appellants states that as he has already made good the deficiency in the court fee, the delay, if any may kindly be condoned. For the reasons stated in the application, the delay in affixing the requisite court fee is condoned. C.M.No.7504-C of 2009 Allowed as prayed for. Regular Second Appeal No. 2535 of 2009 -2- C.M.No.7504-C of 2009 Regular Second Appeal No. 2535 of 2009 The appellants challenge the judgments and decrees dated 01.02.2007 and 13.02.2009, passed by the Additional Civil Judge (Senior Division),Kaithal and the Additional District Judge, Kaithal. The plaintiff-appellants filed a suit for specific performance of an agreement to sell dated 02.01.1999 allegedly executed by defendant/ respondent no.1, the General Power of Attorney holder of defendant/respondent no.2. In addition, the appellants prayed for grant of a decree of liquidated damages as set out in the agreement to sell. Respondent no.2, the owner of the suit land, filed a written statement denying that she had authorised respondent no.1 to execute any agreement to sell and for this purpose asserted that the General Power of Attorney dated 09.12.1994 does not authorise Respondent no.1 to alienate the land. Respondent no.1 denied the execution of the agreement by asserting that after the harvest of kharif 1998, he sold produce to the appellants against a receipt. The appellants have got the agreement to sell executed fradulently. It was asserted that the appellants were aware that the General Power of Attorney did not authorise respondent no.1 to execute a sale deed as the power of attorney was already on record in inter-parties proceedings for partition pending before the Collector, IInd Grade, Kalayat. From the pleadings of the parties, the trial court framed the following issues. “1. Whether the defendant no.1 in his capacity as General Attorney of defendant no.2 and on behalf of defendant no.2 entered into an agreement to sell for sale of the suit land with the plaintiff @ Rs.1,00,000/- per killa. If so to what effect?OPP Regular Second Appeal No. 2535 of 2009 -3- 2. Whether the defendant no.1 in his capacity as General Attorney of defendant no.2 and on behalf of defendant no.2 received a sum of Rs.1,50,000/- as advance money/part of the sale price from the plaintiffs, as alleged in the plaint?OPP 3. Whether the plaintiff is ready to perform his part of contract as alleged in the plaint? If so to what effect?OPD 4. Whether the plaintiffs have suppressed the true and material facts from the court. If so to what effect?OPD 5. Whether the defendants are entitled to special costs?OPD 6. Relief." Before the trial court the appellants gave up their prayer for specific performance but maintained their prayer for grant of damages. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit for refund of Rs.1,50,000/- received as earnest money. The trial court held that as respondent no.1 was neither owner nor authorised by the general power of attorney dated 09.12.1994 to enter into an agreement to sell, the appellants were entitled to a refund of the earnest money. The appellants filed an appeal praying that in addition to the refund of earnest money, the trial court should have granted liquidated damages as settled in the agreement to sell. The Additional District Judge, Kaithal, dismissed the appeal but enhanced the rate of interest on the earnest money to 7.5% per annum. Counsel for the appellants submits that in addition to the refund of Rs.1,50,000/- the courts below should have granted liquidated damages Regular Second Appeal No. 2535 of 2009 -4- as settled in the agreement to sell ,namely, double the amount of earnest money. In support of this arguments, counsel for the appellants has framed the following questions of law stated to be substantial questions of law: "(i). Whether the appellants are entitled for liquidated damages on account of illegal enjoyment of the earnest money by the respondent no.1 for about 10 years? (ii) Whether the learned courts below erred in not properly exercising discretion u/s 20 of the Spoecific Relief Act regarding grant of relief of decree for specific performance of contract? (iii) Whether the appellants are entitled to for decree for specific performance of the agreement to sell dated 02.01.1999 especially when they are in possession of suit land and were ready and willing to perform their part of agreement? (iv) Whether the appellants being in possession of the suit land are entitled to protection in terms of Section 53A of the Transfer of Property Act, 1882?:" I have considered the arguments addressed by counsel for the appellants and express my inability to accede to them or to hold that any substantial question of law arises for consideration. The first question relates to the appellants' claim for liquidated damages as set out in the agreement to sell. As a normal rule, liquidated damages set out in the agreement should be granted. However, in view of peculiar circumstances, of the present case, the courts below were right in directing refund of the earnest money alone. The courts below have returned concurrent findings that the appellants were aware of the fact that Regular Second Appeal No. 2535 of 2009 -5- the power of attorney did not authorise respondent no.1 to sell the land as it was already on record in partition proceedings pending, inter-parties. The first appellate court has affirmed this finding. The discretion exercised by the courts below while declining the appellants prayer for liquidated damages cannot be faulted. The first question of law is answered accordingly. The second and third questions of law pertain to the relief for specific performance. As recorded by the trial court this relief was given up by the appellants before the trial court. The appellants cannot, therefore, be allowed to raise this plea in second appeal. Even otherwise, as respondent no.1 was not authorised to execute an agreement or alienate property, there is no question of accepting the prayer for specific performance of the agreement to sell. The last question arises from a plea that the appellants are entitled to an injunction to protect their possession, as possession was delivered under the agreement to sell. As referred to hereinabove, both the courts below have held that the agreement to sell is a nullity. Consequently, the protection provided by Section 53A of Transfer of Property Act to a person to whom possession is delivered under an agreement to sell would not be available to the appellants. It would require mention that parties are co-sharers who are already pursuing litigation for partition of the land. As a result the prayer for grant of an injunction was rightly declined. In view of what has been stated hereinabove, as no question of law much less a substantial question of law arises for consideration, the concurrent findings recorded by the courts below are affirmed and the appeal is dismissed with no order as to costs. July 14, 2009 (RAJIVE BHALLA) nt JUDGE Regular Second Appeal No. 2535 of 2009 -6-