RSA No.3365 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3365 of 2008 (O&M) Date of decision: .2008 Dilbagh Singh ......Appellant Versus Keshwa Nand and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Binderjit Singh, Advocate for the appellant. Rakesh Kumar Garg, J . This second appeal is by defendant No.2-Dilbagh Singh challenging the judgment and decrees of the Lower Appellate Court whereby it has been held that the plaintiff-respondent is entitled to the decree for specific performance of agreement of sale dated 21.2.2004 on payment of balance sale consideration by him and the defendant-appellant Dilbagh Singh has been directed to join the execution and registration of sale deed of suit property by defendant No.1 Gurmail Singh for conveying valid title in favour of plaintiff-respondent failing which the plaintiff shall be entitled to get the sale deed executed and registered from the Court in accordance with law and further the impugned sale deed No.854 dated 20.5.2004 executed by defendant No.1 in favour of the appellant has been declared null and void and further the suit of the plaintiff-respondent for permanent injunction has been decreed restraining the appellant from alienating the suit property. Briefly stated, the case of the plaintiff is, that defendant No.1 (respondent No.2 in this appeal) executed an agreement of sale dated RSA No.3365 of 2008 (O&M) 2 21.2.2004 of the suit property in favour of plaintiff (respondent No.1 in this appeal) after having received an earnest money of Rs.72,000/- . in the presence of witnesses. The total sale consideration was Rs.1,50,000/- and the balance of the sale consideration was to be paid at the time of execution of the sale deed on 19.5.2004. The plaintiff was present before the Sub Registrar Talwandi Sabo on 19.5.2004 with balance sale consideration amount and other misc. expenses, however, defendant No.1 did not turn up. It is the further case of the plaintiff that defendant No.1 has executed the impugned sale deed of the suit property in favour of the appellant on 20.5.2004. The plaintiff approached the defendants and they agreed to execute the sale deed thereof in favour of the plaintiff on 21.5.2004 but none of them honoured their promise. The plaintiff remained ready and willing and is still ready and willing to perform his part of contract and the impugned sale deed dated 20.5.2004 executed by defendant No.1 in favour of defendant No.2 (now appellant) is illegal, null and void and not binding upon the plaintiff. Thus, the plaintiff prayed for a decree for declaration and specific performance of agreement of sale dated 21.2.2004 and in the alternative, a decree for recovery of RS.1,44,000/- along with interest and costs and a decree for permanent injunction as well. Upon notice, defendant No.1 Gurmail Singh appeared and filed written statement taking various legal objections. On merits, the averments made in the plaint were controverted. It was denied that defendant No.1 received an earnest amount of Rs.72,000/-. Defendant No.1 denied the factum of execution of sale deed dated 21.2.2004 in favour of the plaintiff and prayed for dismissal of the suit. The Defendant No.2 (now appellant) appellant filed his separate written statement taking various legal objections and further stating that he is a bona fide purchaser for consideration without notice on RSA No.3365 of 2008 (O&M) 3 the basis of sale deed dated 20.5.2004 and as such is protected thereunder. The Defendant No.2 also asserted in his written statement that he had no knowledge of any agreement of sale purported to have executed by defendant No.1 in favour of plaintiff. The defendant No.2 prayed for dismissal of the suit of the plaintiff. On conclusion of evidence and arguments, the trial Court vide impugned judgment and decree dated 8.2.2008 decreed the suit of the plaintiff for the alternative relief for recovery of Rs.72,000/- from defendant No.1 (now respondent No.2) along with interest and costs. It is pertinent to mention here that while decreeing the suit for the alternative relief, the trial Court held that the plaintiff (now respondent No.1) has proved the execution of agreement of sale by the defendant No.1 in his favour on 21.2.2004 and has also proved that he was ready and willing to perform his part of agreement on 19.5.2004 i.e. the date fixed for execution of the sale deed by defendant No.1 in favour of the plaintiff, however, defendant No.1 was not ready to perform his part of the contract. It was also held by the trial Court that the plaintiff is still ready and willing to perform his part of contract. The trial Court also held that defendant No.2 (now appellant) is a bona fide purchaser for consideration without notice and therefore, the plaintiff (now respondent No.1) is not entitled to declaration as prayed. It was also held that the plaintiff is not entitled to the relief for specific performance and is entitled to the alternative relief for recovery of Rs.72,000/- along with interest. Feeling aggrieved by the aforesaid impugned judgment and decree of the trial Court vide which the relief of specific performance of the agreement of sale was declined to the plaintiff, he filed an appeal. While allowing this appeal and decreeing the suit of the plaintiff in toto vide impugned judgment and decree dated 13.8.2008, the Additional District RSA No.3365 of 2008 (O&M) 4 Judge, Bathinda affirmed the findings of the trial Court on issue Nos.1 and 2 recording that defendants No.1 and 2 have not preferred any cross- appeal or cross-objections against these findings of the trial Court and therefore, the same are not open to challenge. The Lower Appellate Court further held that defendant No.2 is not a bona fide purchaser for valuable consideration without notice and the plaintiff-respondent is entitled to the relief of specific performance of the agreement of sale dated 21.2.2004 and is further entitled to the declaration as prayed. Not satisfied with the findings of the Lower Appellate Court, the defendant No.2 (now appellant) who claims himself to be a bona fide purchaser for valuable consideration without notice of the suit property has filed this appeal challenging the findings of the Lower Appellate Court on issue No.3, 3A and issue No.9. Learned counsel for the appellant has vehemently argued that the alleged agreement of sale Ex.P-3 itself provides as to what was to happen if either the seller refuses to sell or the purchaser refuses to buy. Further elaborating this argument, learned counsel has argued that the terms and conditions of the agreement itself provide refund of the earnest money of Rs.72,000/- and penalty and nothing more and therefore, the Lower Appellate Court has erred in decreeing the suit of the plaintiff- respondent, as terms and conditions of the agreement cannot be added or subtracted in a manner which is alien to the intention to the parties to the agreement and which runs contrary to the terms and conditions thereof. Learned counsel has also argued that the relief of specific performance being discretionary and equitable and therefore, in the facts and circumstances of the case, the Lower Appellate Court was wrong in granting the relief to the plaintiff-respondent and thus, the judgment and decree of the Lower Appellate Court cannot be sustained at law. In support RSA No.3365 of 2008 (O&M) 5 of this argument, learned counsel has relied upon the judgments of the Hon'ble Apex Court and this Court in Dadarao & another v. Ramrao and others 2000(1) CCC 1999 (SC), Jagtar Singh v. Gurmit Singh and another 2006(1) CCC 329 (P&H), Jagan Nath and others v. Raj Kumar and others 1986 (2) PLR 101. I have heard learned counsel for the appellant. The contentions raised by the learned counsel for the appellant are without any merit. It is a matter of record that the findings of the trial Court with regard to execution of the agreement to sell and willingness and readiness of the plaintiff to perform his part of the contract have been affirmed by the Lower Appellate Court as there was no challenge to these findings by the appellant as he has not filed any appeal challenging the judgment and decree of the Lower Appellate Court. The short controversy which needs to be decided in this appeal is whether the appellant is a bona fide purchaser for valuable consideration without notice or not. The Lower Appellate Court has returned this finding against the appellant on the appreciation of evidence as it has been admitted by defendant No.1-Gurmail Singh while appearing as DW-1 that the sale deed in favour of the appellant was got executed by him without consideration. Even DW-2 Gurdeep Singh, the marginal witness of sale deed Ex.P-4 executed in favour of the appellant has admitted in his cross-examination that no consideration of the sale deed has passed, in his presence between the vendor and vendee namely defendants No.1 and 2. The Lower Appellate Court has also found from the perusal of sale deed Ex.P-4 that the endorsement of Sub Registrar is blank on the point of passing of sale consideration. The sale deed Ex.P-4 contains the recital that the consideration was received in advance for domestic expenses by the vendor. The onus to prove that sale deed Ex.P- RSA No.3365 of 2008 (O&M) 6 4 is supported with consideration was on the appellant. There is no other evidence except the statement of the appellant and DW-3 on this point. The said statements have been rebutted by the statement of the plaintiff- respondent and defendant No.1 on the record. No document was produced on record by the appellant to prove this fact that he purchased this property in dispute for consideration and thus, in view of above facts and circumstances even on reappreciation of evidence, the findings of the Lower Appellate Court cannot be set aside. The other argument of the learned counsel for the appellant is also without any merit. This Court in Mohini Kapoor and others v. Deepak Uppal and others 2006(2) CCC 160 (P&H) has held that specific performance of an agreement cannot be refused merely because there is a clause in agreement for payment of damages. Breach of contract to transfer immovable property must be specifically enforced as alternative relief of securing compensation in money would not be adequate. This authority is applicable to the facts of this case. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. , 2008 (RAKESH KUMAR GARG) ps JUDGE