C.R. No. 1263 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 1263 of 2011 Date of Decision: 21.9.2011 Aligibatt and others ....Petitioners. Versus Salwinder Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Suresh Kumar Arya, Advocate for the petitioners. Ms. Ravinder Kaur, Advocate for the respondent. AJAY KUMAR MITTAL, J. 1. The grievance raised in this petition filed under Article 227 of the Constitution of India by the defendant-petitioners is for setting aside the order dated 11.12.2010 whereby their prayer for seeking permission to deposit the amount of Rs.74,000/- along with interest at the rate of 1% per month from the date of decision along with cost of Rs.7046.25 was declined by the trial court. 2. Briefly stated, the facts necessary for adjudication of the present petition as narrated in the petition, are that respondent No.1 filed a suit for joint possession as owner by specific performance of the agreement to sell dated 8.10.2001 for sale of land measuring 13 kanal 4 marlas situated at village Kiri Afgana on payment of balance sale consideration or in the alternative the relief of recovery of Rs.1,50,000/-. The share of Zenat was 72/1348 and that of Aligibatt was 192/1348 total C.R. No. 1263 of 2011 -2- measuring 264/1348 out of the land measuring 67 kanals 8 marlas. Zenat had died leaving behind defendants No.1 to 6 as her legal heirs. Aligibatt and Zenat agreed to sell their 264/1348 share for a total sale consideration of Rs.1,48,500/- on 8.10.2001 and a sum of Rs.90,000/- was paid as earnest money. The balance amount was payable on 10.10.2002 at the time of execution of the sale deed. The plaintiff-respondent was ready and willing to perform his part of the agreement and remained present in the office of Sub Registrar, Kahnuwan, Tehsil and District Gurdaspur with balance sale consideration but the defendant did not come present and he got his presence marked there on 5.11.2008. A legal notice was issued to the defendant for execution of the sale deed but to no avail. The plaintiff- respondent approached the civil court for specific performance of agreement to sell dated 8.10.2001. Upon notice having been issued, the petitioners filed a written statement pleading that their mother had taken loan from the petitioners for leveling the land and they never intended to sell the suit land to the plaintiff. After the death of mother of the defendants, defendant No.5 executed a sale deed in favour of the plaintiff of land measuring 1 kanal 15 marlas to discharge the liability of the loan and at that time, the plaintiff agreed to return this agreement of sale to the defendants which was written for the purposes of security. The trial court vide judgment and decree dated 11.6.2010 decreed the suit of the plaintiff for a primary relief of recovery of an amount of Rs.74,000/- along with interest at the rate of 1% per month w.e.f. 8.10.2001 till the realization of the whole amount. It was also ordered that if the defendants fail to satisfy the money decree by deposit of the amount in the court within the period of three months from the date of judgment, the plaintiff shall be entitled to deposit the balance sale consideration thereafter and get specific performance of the agreement to sell dated 8.10.2001. The petitioners applied for the certified copy of the judgment and decree on 12.6.2010. C.R. No. 1263 of 2011 -3- However, the application was lost by the copying agency. The certified copy was prepared on 14.10.2010 and the same was obtained by the petitioners on 18.10.2010. Thereafter, the petitioners filed an application on 27.10.2010 seeking permission to deposit the aforesaid amount which had been declined by the trial court vide order dated 11.12.2010. Hence, the present revision petition. 3. I have heard learned counsel for the parties. 4. Learned counsel for the petitioners submitted that the trial court vide judgment and decree dated 11.6.2010 while allowing the alternative plea of the plaintiff-respondent had allowed the defendant- petitioners to deposit the amount of Rs.74,000/- along with interest at the rate of 1% per month and cost of Rs.7046/-. The copy of the said judgment and decree was received on 18.10.2010. Prior thereto, the defendants-petitioners were informed on 8.10.2010 by the copying branch that the application moved by the petitioners on 12.6.2010 vide application No. 4370 of 12.6.2010 had been lost. It was further submitted that thereafter an application was filed on 27.10.2010 seeking permission to deposit the aforesaid amount which has been erroneously declined vide order dated 11.12.2010. It was also stated that till date the plaintiff- respondent had not deposited the balance sale consideration. 5. On 23.2.2011, this Court after hearing the contention of learned counsel for the petitioners had noticed as under:- “After hearing counsel for the petitioner and going through the decree dated June 11, 2010, it appears that the main relief which was granted to the plaintiff- respondent was the recovery of amount of Rs.74000/- along with interest till realization of the whole amount, meaning thereby, that decree could have been executed by the defendant-petitioners decree holder for recovery. C.R. No. 1263 of 2011 -4- The alternative relief of specific performance seems to be in the nature of penalty measure which seems to be in consonance with the principles of specific relief as enshrined under the Specific Relief Act, 1963. First part of the decree gives unlimited period to the plaintiff- respondent to recover interest on the decretal amount of Rs.74000/- but the second portion of the decree curtails the said right and imposes a condition that in case the amount is not deposited by the defendant-petitioners within a period of three months from the date of judgment, the plaintiff would be entitled to the relief of specific performance of the agreement to sell on depositing balance of sale consideration. Counsel for the petitioners has submitted that till date the balance of sale consideration has also not been deposited by the plaintiff-respondent. In view of the above circumstances, prima facie the order passed by the lower Court refusing permission to the defendant-petitioners to deposit the decretal amount with interest is illegal and unjust. The application of the defendant-petitioners could have been allowed by directing the defendant-petitioners to deposit the additional interest as mentioned in the decree.” 6. Learned counsel has produced a challan acknowledging that a sum of Rs.1,65,410/- stands deposited on 16.3.2011 which included element of interest till the date of deposit. 7. Learned counsel for the respondent could not dispute the legal and factual averment of the learned counsel for the petitioners. 8. In view of the above and the fact that the amount has been C.R. No. 1263 of 2011 -5- deposited, the present revision petition is allowed and the order dated 11.12.2010 is set aside. Accordingly, the time for deposit of the amount is extended till the date of deposit made by the petitioners. September 21, 2011 (AJAY KUMAR MITTAL) gbs JUDGE