R.S.A.No. 4308 of 2006 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4308 of 2006 (O&M) Date of decision: 2.9.2009 Margaret A Skinner and others ......Appellants Versus M/s Bright Star Development (P) Ltd. and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Rajesh Garg, Advocate, for the appellants. Mr.Arun Jain, Sr.Advocate with Mr.Amit Jain, Advocate, for respondent No.1. **** SABINA, J. Plaintiff-M/s Bright Star Development (P) Ltd filed a suit for mandatory injunction, which was decreed by the Additional Civil Judge (Sr.Divn.), Hisar vide judgment and decree dated 4.10.2005. In appeal, the said judgment and decree were upheld by the District Judge, Hisar vide judgment and decree dated 4.9.2006. Hence, the present appeal by the defendants. R.S.A.No. 4308 of 2006 (O&M) 2 Brief facts of the case, as noticed by the trial Court in para Nos. 2 to 5 of its judgment, are as under:- “2. It is the case of plaintiff that M/s Bright Star Development (P) Ltd. Registered Office J-1 Udyog Nagar Nangloi, Delhi is incorporated under the Companies Act and Shri Satpal is one of its Director who has been duly authorised and empowered to engage the counsel and file present suit vide Resolution dated 1.11.1994 passed in the meeting of Board of Directors. 3. The defendants represented to the plaintiff that they are joint owners in possession of the land measuring 104 kanals 13 marlas comprised in Khasra Nos. 1038 situated within the Municipal Limits of Hansi, Tehsil Hansi, District Hisar, and agreed with the plaintiff to sell the land measuring 8 acres 7 kanals 19 marlas out of abovesaid land for a total sale consideration of Rs.3,04,71,000/- (Three crore four lacs seventy one thousands only) and a sum of Rs. 50,00,000/- (Fifty lacs) as earnest money was paid by the plaintiff. It was agreed that sale deed would be got registered after obtaining clearance certificate from Income-tax Department and obtaining permission from the Reserve Bank of India u/s 31(1) of the Foreign Exchange Regulations Act, 1977, within one year or earlier from the date of receipt of R.S.A.No. 4308 of 2006 (O&M) 3 permission. On 19.12.1990 defendants informed to the plaintiff that they have obtained necessary permission from Reserve Bank of India. That the plaintiff requested the defendants to get the sale deed executed and registered after receiving the balance amount. On this Lt. Col. Mishael, James R.Skinner and Jaswant Singh told the plaintiff that they would get the sale deed executed and registered after getting the fresh Power of Attorneys from their principals on 19.12.1991 or they will arrange the attendance of all the owners for execution and registration of the sale deed. On 19.12.1991 authorised representative of the company remained present during all working hours in the office of Sub Registrar, Hansi for getting the sale deed executed and registered in favour of the company. The plaintiff learnt from the office of Sub Registrar, Hansi that the sale deed will not be registered about said land because of letter dated 13.12.1991 received from the Divisional Town Planner-Hisar whereby Sub Registrar was directed not to register the sale deed in respect of said land as it was under the process of acquisition. This factum that land was in the process of acquisition was concealed by the defendants and they had intentionally allured the plaintiff to purchase suit land which was not free from acquisition process. The land in R.S.A.No. 4308 of 2006 (O&M) 4 dispute was proposed to be acquired by the Haryana Government vide Notification No.LACT (F)-92/NTLA/122 dated 18.3.1992. After this notification final notification under Section 6 of Land Acquisition Act has also been issued by the Haryana Government vide Notification dated 16.3.1993 and thus the land could not be transferred by the defendants. According to agreement, in case of any unforeseen hitch on account of which the defendants may be debarred to execute the sale deed in favour of plaintiff, the defendants were liable to return the amount received by them as earnest money with interest @ 8 % per annum. Hence, defendants are liable to return the earnest money of Rs.50 lacs with interest of Rs.16 lacs making total amount of Rs.66 lacs only. Defendants were asked several times to pay the same amount but to no avail, Hence, this suit. 4. Suit is resisted on behalf of defendants with objection that the plaintiff has no right to file present suit, suit has not been presented according to law, suit is not maintainable in the present form, suit has not been filed by authorised person, plaintiff has not come to the court with clean hands and has suppressed material facts, suit is false and frivolous, suit is hopelessly time barred and suit is barred under the provisions of Order 2 Rule 2 CPC R.S.A.No. 4308 of 2006 (O&M) 5 etc. 5. Defendants have admitted the agreement to sell the suit land with the plaintiff-company as Sh.Vijay Bansal who was proclaiming himself as managing Director of M/s Bright Star Development (P) Ltd. Hisar have approached Mr.J.R.Skinner through Sh.B.K.Jain son of Sh.Jaswant Singh Jain Manager of Skinner’s estate and GPA holder of some other members of the Skinner family and expressed his willingness to purchase the land of the defendants comprising in Khasra No.1038 measuring nine acres situated within Hansi Municipal Limits, abutting Delhi Hisar Road in a prime area. Initially a preliminary agreement was executed on 14.7.1990 for the purchase of suit land @ Rs.700/- per square yards against an advance of Rs. 10,00,000/- only. It was also stipulated between the parties that another Rs.40,00,000/- would be paid at the time of execution of the agreement and balance was agreed to be paid at the time of execution of sale deed which was to be executed within one year of the date of receipt of permission of Reserve Bank of India. Consequently, in due course final agreement dated 9.11.1990 was executed by Sh.J.R.Skinner for himself and as General Power of Attorney for Albert Skinner, C.H.Skinner, Douglas Skinner R.S.A.No. 4308 of 2006 (O&M) 6 (since deceased) and Mrs. Sylivia A. Mahendroo, Lt. Col. M.A.R. Skinner for self and as GPA for Mrs. Lillian E. Sale and Sh.Jaswant Singh Jain as GPA for Mrs. K.M. Cunningto for the sale of 8 acres 7 kanals and 19 marlas land. Another Rs.40,00,000/- were paid through cheques dated 23.10.1990 drawn on Union Bank of India, Hisar by the plaintiff. In consequence of aforesaid agreement, the defendant applied for permission to the Reserve Bank of India on 17.11.1990 which was granted vide letter dated 7.12.1990 Sh. J.R.Skinner promptly dispatched this permission to Sh.Vijay Bansal by registered post vide his letter dated 12.12.1990 and intimated him their readiness and willingness to executed the conveyance deed as stipulated. Sh.Vijay Bansal received this letter on 19.12.1990. This deed was thus to be executed on or before 19.12.1991. Thereafter, certain strange proceedings and affairs of company astonished the defendants. Sh.Vijay Bansal soon after the execution of the aforesaid agreement on or before 22.11.1990 started making agreements for further sale of the suit land with all and sundry @ Rs.2000/- to Rs.2,500/- per square yards co-venanting with his prospective vendees to execute the sale deeds in their favour by 15.7.1991. He was then called by Sh.J.R.Skinner in the month of April, 1991. He R.S.A.No. 4308 of 2006 (O&M) 7 was then shocked to learn that he contemplated conveyance in parts from the defendants, which was straightway refused by the defendants. Sh.Vijay Bansal tried to impress and coax defendant No.3 and his such a endeavour revealed that the plaintiff-company lacked liquidity and was on a look out to supplement funds from diverse sources. On 16.11.1991 Sh.Vijay Bansal representating the plaintiff-company again approached defendant No.3 in the presence of Sh.Jaswant Singh and his son Sh.B.K.Jain requested him to extend some time for the execution of the sale deed which request him to extend some time for the execution of the sale deed which request was also declined by Sh.J.R.Skinner vide his letter dated 20.11.1991. Subsequent events clearly reveal that thereafter plaintiff company hatched a conspiracy with some unscrupulous elements to create circumstances so as to take benefit of the ridder in the agreement regarding unforeseen legal hitch. The plaintiff company through its Managing Director Sh. Vijay Bansal procured the expert services so as to create legal hitch by playing foul and a forged agreement to sell was got prepared on behalf of Skinners in favour of some fictitious persons Ramdhari of village Satrod regarding the suit land some time in the month of November 1991. R.S.A.No. 4308 of 2006 (O&M) 8 Sh.L.R.Goyal Advocate since deceased got prepared this agreement and sought services of Sh.Radhey Shyam Deed Writer, Hisar. According to him, agreement was drafted in the presence of two persons not known to him on a stamp paper of value of Rs.3/- which was neither attested by the witnesses nor executed by any party in his presence and even the date of agreement was not mentioned at the foot thereof at the asking of Sh.L.R.Goyal Advocate, who promised together this Deed Writer’s Register completed in due course but despite visits of Deed Writer, the same was not got completed by him. This agreement which was actually executed in the last week of November 1991 this agreement was ante- dated as executed on 12.2.1990 and signatures of Sh.J.R.Skinner and Sh.Jaswant Singh Jain, GPA were forged presumably from the original agreement dated 9.11.1990 already in the possession of the plaintiff- company. This forged agreement was got attested by Raj Kumar son of Sher Singh and Vinod Kumar son of Sh.Lakhpat Rai, resident of Hisar. This agreement was executed for fixed price of Rs.20 lacs and Rs.1 lac was shown as earnest money paid sale was stipulated to be completed upto 31.3.1992 after getting the land vacated from alleged occupiers. Sequallent to these preparation R.S.A.No. 4308 of 2006 (O&M) 9 of forged documents, a civil suit was filed in the civil court at Hisar on 3.12.1991 by Sh.L.K.Aggarwal Advocate and without filing of original agreement, and interim stay was obtained from the court restraining the defendants from alienating the subject land till 24.12.1991. Notice of this suit was served on Sh.Jaswant Singh Jain GPA on 5.12.1991. On the same day in the evening Sh.Vijay Bansal met Sh.Jaswant Singh confronted him with the State of things and asked him to persuade his principals to settle with him failing which he will put the skinners in trouble. Sh.Jaswant Singh did not fell prey to the hoax of Sh. Bansal and told him to remain straight in dealings. Subsequent thereto, judicial record of the court was also forged and tampered certified copy of the plaint showing the Sub Registrar as party to the suit Ramdhari Vs. M.A.R. Shinner and others was submitted before the Sub Registrar on 6.12.91 with a view to mislead him to believe that he is party to the suit and hence bound by the injunction of the court. After coming to learn about these facts, defendant No. 3 Sh. J.R Skinner reported the matter to S.S.P. His ar vide his complaint dated 24.12.1991 whereupon FIR No. 15 dt. 11.1.1992 was registered in police-station Civil Lines, Hisar against Sh. Vijay Kumar Bansal, his counsel L.R. Goyal Advocate, R.S.A.No. 4308 of 2006 (O&M) 10 Ramdhari and his counsel Sh. L.C. Aggarwal and others under Sections 464,465,468,469,461,467,474/120-B and 109 IPC. Investigation of this case reveal that Ramdhari son of Dhoop Singh r/o Satrod as a fictitious person and there is no such person existed in three Satrods. Sh. Vijay Bansal did not stop here. He manipulated someone in the office of District Town Planner Hisar and procured from there a letter dated 13.12.1991 asking the Sub Registrar, Hansi not to register any conveyance deed in respect of suit land as the same is under process of acquisition by the State. However, actually the notification u/s 4 of Land Acquisition Act from which the process starts was issued only on 18.3.1992. All these exercise was done by the plaintiff-company because it lacked liquid cash to complete the bargain and Rs.50,00,000/- earnest money had to be retrieved by hook and crook to save the sinking ship. Even as late as on 19.12.2001 the plaintiff-company was not ready with the required cash and was playing snakes and ledders to avoid agreement and to refund of earnest money. In the backdrop of above discussed facts and circumstances, it is clearly evident that the plaintiff who had restored to all sorts of forgery, is not entitled to any sort of claim against the defendants under the principles of equity, justice and R.S.A.No. 4308 of 2006 (O&M) 11 good conscience. With these averments all other facts mentioned in the plaint are stated to be wrong and denied and dismissal of the suit is prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff M/s Bright Star Development (P) Ltd. 10 K.M.Stone, Delhi Road, Hisar is a registered company incorporated under the Companies Act ? OPP 2. Whether the plaintiff is entitled for mandatory relief of injunction to the effect that defendants be directed to return the earnest money under the agreement dated 9.11.1990 between the parties with interest upto dated @ 8% per annum as prayed for? OPP 3. Whether the suit of the plaintiff is not properly presented according to law, if so, to what effect? OPD 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Whether the suit of the plaintiff has not been filed by duly authorised person and same is not maintainable under Order 29 Rule 1 CPC? OPD 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 7. Whether the plaintiff has not come with clean R.S.A.No. 4308 of 2006 (O&M) 12 hands, if so to what effect? OPD 8. Whether the suit of the plaintiff is hopelessly time barred? OPD 9. Whether the suit of plaintiff is bad for mis- joinder and non-joinder of necessary parties? OPD 10. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC? OPD 11. Whether the suit of the plaintiff is hit by resjudicata and same is barred under Section 10 CPC? OPD 12. Relief. ” An agreement to sell was executed between the parties regarding 8 acres 7 kanals and 19 marlas of land for a total consideration of Rs. 3,04,71,000/-. Rs.50,00,000/- were paid as earnest money by the plaintiffs to the defendants. It was also agreed that the sale deed would be executed after getting clearance from the Income tax Department and after obtaining permission from Reserve Bank of India within one year or earlier from the date of receipt of permission. The plaintiff-respondent No.1 filed a suit for recovery of the earnest money as the sale deed could not be executed between the parties. Learned counsel for the appellants has argued that it was agreed between the parties that in case the sale deed could not be executed for any legal hitch, then the earnest money would be R.S.A.No. 4308 of 2006 (O&M) 13 returned to the plaintiff by the defendants. However, in the present case, there was no legal hitch and the plaintiff had itself not got the sale deed executed as it was unable to pay the balance sale consideration and was thus not liable to get the refund of the earnest money. Learned counsel has further submitted that the notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') regarding acquisition of land had come into force much later i.e. in March 1992. Learned senior counsel for the respondents, on the other hand, has submitted that the instructions were issued by the Sub Registrar not to register the sale deed and due to this reason, sale deed was not executed. Although notification under Section 4 of the Act had come force in March 1992 but proceedings regarding acquisition of the suit property were going on. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Initially the suit was filed by the plaintiff for mandatory injunction. Since vide said suit, the plaintiff was claiming relief of recovery and refund of earnest money, the plaintiff was asked to make good the court fee. The plaintiff made up the deficiency in court fee. Section 149 of the Code of Civil Procedure reads as under:- Power to make up deficiency of Court fees- R.S.A.No. 4308 of 2006 (O&M) 14 Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.” Thus, the plaintiff could be asked to make up the deficiency in court fee by the Court and deficiency of the court fee was made good by the plaintiff. Admittedly, the agreement to sell in question was executed between the parties on 9.11.1990. The last date stipulated for execution of sale deed was 19.12.1991. On 3.12.1991, Ramdhari instituted a suit against vendees and their General Power of Attorney holder restraining them from alienating the property measuring 80 kanals (which is part of the suit property). Ramdhari had also set up an agreement to sell in his favour. A stay order was granted by the Civil Court. The suit was dismissed in default on 30.4.1992. A letter was received by Sub Registrar that no conveyance deed should be registered with regard to khasra No.1038. The case of the plaintiff is that it had appeared before the Sub Registrar on 19.12.1991 and some representatives from the R.S.A.No. 4308 of 2006 (O&M) 15 Skinner’s family were also present. The case of the plaintiff further is that due to unforeseen incident the sale deed could not be executed. Acquisition proceedings had been initiated regarding the suit land. The notification under Section 4 of the Act was issued in March 1992. Thus, from the facts of the case, it is evident that the sale deed could not have been executed between the parties nor it can be executed now as the land in question has since been acquired under the land acquisition Act. Earlier the suit for injunction had been filed. In these circumstances, the learned District Judge rightly held that the agreement in question had been frustrated and therefore, the plaintiff was entitled to get the refund of the earnest money. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 02, 2009 anita