IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1306 of 2008 Date of Decision: March 03, 2008 M/s Dimpi Bricks ......................Petitioner VERSUS Gurpreet Singh and another .........................Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Arun Palli,Sr. Advocate with Mr.Jai Bhagwan, Advocate for the petitioner. ** RANJIT SINGH J. Application filed under Order 39 Rules 1 and 2 CPC by the respondents has been allowed. The appeal filed against the said order is dismissed, which is now impugned before this Court through Civil Revision No. 1306 of 2008 { 2 } the present revision petition. The petitioner entered into an agreement with the respondents for digging and removing earth from the suit land measuring 40 bighas as described in the head note of the plaint. The rate fixed was Rs.66,000/- per killa and the earth could be dug up to 5 ft. The agreement was to be completed from 1.1.2005 till 30.6.2009. A sum of Rs. 7,20,000/- was paid at the time of agreement. Another amount of Rs. 6 lacs was paid on 15.2.2005 and Rs.6,60,000/- was to be paid upto 1.1.2007. It is alleged by the respondents, in the application filed, that the petitioner failed to make payment of the instalment of Rs.6,60,000/- up to 1.1.2007 . On the other hand it is pleaded by the petitioner that he had approached the respondents with two cheques of Rs.3 lacs each dated 1.1.2007 for making the payment and Rs.60,000/- was given in cash. The respondents, however, did not accept the amount through cheques and asked the petitioner to make payment in cash. The petitioner referred to the documents placed on record to show that he had then encashed these cheques but the respondents started claiming some additional amount and did not accept the payment. This necessitated serving of a legal notice by the petitioner on 8.1.2007. It is, thus, a case of the respondents that the payment was not made as agreed, whereas the petitioner claims that the respondents refused to accept the same. The Courts dealing with the application found that Civil Revision No. 1306 of 2008 { 3 } payment through cheques can not be called a valid payment and unless the cheque is encashed it does not amount to making of the payment as agreed. It is observed that it is yet to be proved if the petitioner had offered a sum of Rs.6,60,000/- in cash as claimed by him. In this background it is viewed that the respondents would be justified in refusing the petitioner to dig the earth as he has faulted in making the payment of instalment as due by 1.1.2007 It is further observed that the agreement can not specifically be enforced and the petitioner can have remedy of seeking damages. Mr. Arun Palli, Sr.Advocate, appearing for the petitioner, submitted with vehemence that in a suit filed by the respondents and while deciding the application for interim relief, the respondents could not have been given this relief which amounts to allowing the complete suit. He has referred to various documents to show that in fact, the cheques had been encashed but still the respondents refused to accept the payment . All these aspects would be seen by the Courts during the course of trial. Once the petitioners have not made payment to the respondents by the due date, the respondents are at liberty to object to the digging of the earth from a land which concededly is owned by the respondents. Even otherwise, I do not find any legal infirmity in the view that such a contract, requiring removal of earth up to a particular depth, can be enforced if a party wants to cancel the same, specially on account of the fault on the part of the opposite party entering into an agreement in this regard. Civil Revision No. 1306 of 2008 { 4 } The petitioner, if feels aggrieved, may have a remedy of filing a suit for damages as has been observed by the appellate Court . No case for interference otherwise is made out. Dismissed. (RANJIT SINGH) JUDGE March 03, 2008 anita