RSA No.2104 of 2009 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2104 of 2009 (O&M) Date of decision:28.09.2010. Manwinder Kaur @ Maninder Kaur ...Appellant Versus Darshan Kumar and others ...Respondents CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. S.S.Bhinder, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. This appeal is preferred by defendant No.5 against the judgment and decree of the Courts below whereby suit filed by the plaintiff for recovery of earnest money of `2,50,000 with proportionate costs along with interest at the rate of 6% per annum from the date of execution of agreement to sell dated 12.08.1998 till realization of the decretal amount, has been decreed and his prayer for specific performance was dismissed and the appeals filed by the plaintiff and defendant No.5 against the judgment and decree of the Trial Court was dismissed by the learned District Judge, Mansa on 03.02.2009. In brief, the plaintiff filed the suit for specific performance of the agreement to sell dated 12.08.1998 which was executed between the plaintiff and Harwinder Singh @ Wada (since deceased). The said vendor had allegedly received `2,50,000 towards earnest money and agreed to execute the registered sale deed in favour of the plaintiff after receipt of the entire balance sale consideration on or before 25.02.1999. However, RSA No.2104 of 2009 (O&M) -2- ****** the vendor did not perform his part of the contract and had died in the month of June, 1999. After his death, his property was inherited by his legal heirs who were persuaded by the plaintiff for registration of sale deed, but they did not oblige and ultimately, the plaintiff came to know that the vendor had already sold some part of the plot in dispute. The defendants denied the execution of agreement to sell claiming it to be forged and fabricated document. They alleged that the vendor was a habitual drinker, who, after consuming alcohol, used to become unconscious and at that time, the plaintiff might have got his signatures on blank papers and later on, in connivance with witnesses and stamp vendor, has got the alleged agreement prepared to which the defendants are allegedly not bound. In nut-shell, it was a case of denial of the agreement to sell on the ground of being forged and fabricated document. Defendant Nos.8 and 9, who were alleged to be the bona fide purchasers of the plot in dispute, filed their separate written statement and on the pleadings of the parties, the Trial Court framed issues including the issue as to “whether the defendants No.8 and 9 are bona fide purchasers of the part of suit property without notice and for value”. After considering the entire evidence in detail, the Trial Court had found that the entire suit property stands already sold, therefore, the agreement to sell Ex.P1 is not executable. Thus decree was passed for recovery of the earnest money along with interest @ 6% per annum. Both the Courts below recorded a concurrent finding of fact that defendants have failed to prove that the agreement to sell was a forged and fabricated document and as such, the decree of the Trial Court for recovery of earnest money was upheld. In the present appeal, only defendant No.5 has come forward to challenge the judgment and decree of the Courts below on the ground that the agreement to sell was not on proper stamp paper and the Courts below should not have decreed the suit for recovery of the earnest money as there was neither pleading nor issue in this regard. I have heard both learned counsel for the parties and perused the record with their able assistance. RSA No.2104 of 2009 (O&M) -3- ****** The appellant cannot be allowed to take this plea that the agreement to sell was not on proper stamp paper as he had pleaded total denial on the ground that the document is forged and fabricated which he has miserably failed to prove by leading cogent evidence. Moreover, the Court could grant relief of reimbursement of the earnest money if it ultimately finds that the agreement is not possible to be performed specially when the vendor had sold the property after the agreement with the plaintiff. The defendant, in no circumstance, could be allowed to retain the earnest money if he has deliberately avoided the agreement and sold the property to some other person because, in that eventuality, he would be having an unnecessary edge over the plaintiff. In view of the above discussion, I do not find any merit in the present appeal in order to take a view different from the view taken by the Courts below as I do not find any question of law much-less substantial involved in it as envisaged under Section 100 of the Code of Civil Procedure, 1908. Hence, this appeal is dismissed, however, without any order as to costs. September 28, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE