RSA No. 3488 of 2008 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3488 of 2008 Date of Decision: 17.7.2009 Ram Singh and others ......Appellants Versus Ram Singh and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 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: Shri Rajesh Sethi, Advocate, for the appellants. HEMANT GUPTA, J. (Oral). Defendant Nos. 1 to 3 and the legal heirs of defendant No. 4 are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit of the plaintiff for refund of his share of earnest money was decreed. Defendant Nos. 1 to 4 entered into an agreement with plaintiff Chunni Lal and defendant No. 5 Nathi Singh for sale of agricultural land on 17.10.1996 on receipt of Rs.5,25,000/- as earnest money. The sale deed was to be executed in favour of the plaintiff and defendant No.5 or their nominee on 20.1.1997 and the balance sale consideration was to be paid at RSA No. 3488 of 2008 (2) the time of execution and registration of the sale deed. But before the said date, on 2.1.1997, the aforesaid agreement was cancelled and a new agreement was executed by defendants No.1 and 4 with defendant No.5 and other persons. It was alleged by the plaintiff that defendant No.5 has colluded with defendant Nos. 1 to 4 and has refused to execute the sale deed in respect of the share of the plaintiff. As the agreement dated 17.10.1996 could not be performed, the plaintiff sought recovery of his share of the earnest money. Both the Courts have decreed the suit for recovery of the share of the earnest money paid by the plaintiff. Learned counsel for the defendant-appellants has vehemently argued that the plaintiff had the option to seek specific performance of the agreement in respect of the entire property agreed to be sold by the defendants, but he cannot sue for refund of his share of the earnest money. The said argument in the first instance, seems to be plausible, but in the facts of the present case, I do not find that such argument has any basis to stand. The stand of the defendants is that agreement dated 17.10.1996 was cancelled on 2.1.1997 by defendant No.5, who alone executed the agreement on 17.10.1996. Puran-DW2, one of the defendants, has admitted in his examination that agreement dated 17.10.1996 was got cancelled by Nathi and cancellation deed is signed by Nathi. Mark-A is the agreement dated 2.1.1997 cancelling the earlier agreement. The said agreement recites the execution of agreement dated 17.10.1996 with Chunni-plaintiff. It also contains name of the plaintiff at the end of it but does not bear signatures of the plaintiff. Though the agreement dated 2.1.1997 has not been formally proved, but in view of pleaded case of the defendants and the statements of the witnesses DW1-Satbir and DW2- RSA No. 3488 of 2008 (3) Puran, it is apparent that Mark-A is the only document of cancellation of the agreement. In the absence of any other document produced to prove document dated 2.1.1997, the Courts could very well rely upon the said document. In evidence, the plaintiff has produced reply to a notice given on behalf of defendant Nos. 1 to 4, wherein it is mentioned that the agreement has already been cancelled on 2.1.1997, meaning thereby that the appellants have frustrated the contract even before the last date of agreement and thus, the plaintiff was justified in seeking refund of the amount of earnest money to the extent paid by him. Such is the case set up by defendant Nos. 1 to 4 in the written statement as well. In view of the above, the decree passed by the Courts below for refund of the amount proved to be received by defendant Nos. 1 to 4 from the plaintiff, does not suffer from any patent illegality or irregularity, which may give rise to any substantial question of law in the present appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 17-07-2009 ds