R.S.A. No.1730 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1730 of 2007 Date of Decision:25.11.2008 Gurcharan Singh .....Appellant Vs. Gurcharan Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. A.S. Sibia, Advocate for the appellant. Mr. I.S. Mann, Advocate for the respondent. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 19.2.2007 passed by the Court of learned Additional District Judge, Muktsar whereby he dismissed the appeal preferred against the judgment/ decree dated 5.9.2006 rendered by the Court of learned Additional Civil Judge (Senior Division), Muktsar whereby he decreed the suit for possession by way of specific performance of agreement to sell dated 11.4.2000 which was later on extended on 7.3.2001 of the suit land measuring 18 kanal 19 marlas with the direction to the defendant to execute the sale deed within a period of 60 days in favour of the plaintiff and if he failed to do so, the latter would be at liberty to approach the Court for execution of the same after depositing the balance sale consideration in the Court. The facts which led to the filing of the suit are that the R.S.A. No.1730 of 2007 -2- defendant mortgaged the suit land with possession in favour of the plaintiff for a consideration of Rs.2 lacs for a period of 3 years on 20.5.1999 vide registered mortgage deed and being in exclusive possession of the same delivered possession to the plaintiff- mortgagee who is entitled to adjust the mortgage money in the sale consideration. The agreement to sell was executed on 11.4.2000. As per the same, out of the total sale consideration of Rs.4,82,125/-, an amount of Rs.2 lacs was received as earnest money. On 7.3.2001, the date for execution and registration of the sale deed was extended from 25.3.2001 to 25.11.2001. On the said date, the defendant further received Rs.50,000/- as additional earnest money. The stipulated date, i.e., 25.11.2001 being holiday, the plaintiff requested the defendant to reach the office of the Sub-Registrar for executing the sale deed on 26.11.2001 on which date, the plaintiff went there and appeared before the Sub-Registrar, Muktsar with balance sale consideration as well as registration charges and remained present there, but the defendant did not turn up. The plaintiff has always been ready and willing to perform his part of the contract and is still ready and willing to perform the same. He also served a notice upon the defendant on 1.12.2001 to execute and register the sale deed, but he refused to receive the notice. On these allegations, the suit was filed for specific performance. In his written statement, the defendant inter-alia pleaded that at present, the value of the land is Rs.3 lacs per killa though earlier it was Rs.4 lacs per killa and as such, the question of selling it at the rate of Rs.2,03,000/- per killa does not arise. The execution of the mortgage deed for a consideration of Rs.2 lacs has been denied. However, it has been admitted that the plaintiff is in possession of the disputed land since 1998. R.S.A. No.1730 of 2007 -3- It has been denied that the answering defendant had agreed to sell the suit land or received the alleged earnest money. As alleged, the plaintiff is doing the finance business under the name and style `M/s Gurcharan Singh Bal and Sons'. The answering defendant had obtained Rs.65,000/- from the plaintiff in 1995. The plaintiff paid Rs.25,000/- on behalf of the answering defendant to the Land Mortgage Bank and after adding interest from 1995 to 1998 at the rate of 3% per mensem, they entered into an agreement to mortgage regarding the land in dispute and the period of such agreement was extended from time to time. Lastly, it has been prayed that the suit may be dismissed. The following issues were framed:- 1. Whether defendant agreed to sell his property with the plaintiff for Rs.2,30,000/- per acre and received Rs.2,00,000/- as earnest money on 11.4.2000? OPP 2. Whether plaintiff has been and is still ready and willing to perform his part of agreement? OPP 3. Whether suit is within limitation? OPP 4. Whether plaintiff concealed material facts from the court, if so, to what effect? OPD 5. Whether suit is not maintainable in the present form? OPD 6. Whether plaintiff is entitled for specific performance of agreement dated 11.4.2000? OPP 7. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed earlier. Feeling aggrieved therewith, the defendant went up in appeal, R.S.A. No.1730 of 2007 -4- which has been dismissed by the First Appellate Court. Being undaunted and dissatisfied therewith, he has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. A.S. Sibia, Advocate representing the appellant urged with a good deal of force that indeed the alleged agreement was executed as a collateral security for the loan which was obtained by him from the plaintiff- respondent. He further made a submission that it is such a case in which the relief of specific performance could not be granted and only alternative relief could be given. To controvert these submissions, Mr. I.S. Mann, appearing on behalf of the respondent- plaintiff argued that the appellant has not adduced any cogent evidence showing that the disputed agreement was executed as a collateral security. He further puts that the grant of alternative relief in no manner would compensate the plaintiff- respondent. I have well considered the rival contentions. The substantial question of law which arises for determination is as to whether the Civil Court should grant the decree for alternative relief, i.e., for recovery of money instead of decree for possession by way of specific performance qua the land in dispute. The defendant- appellant has admitted that the land in dispute was mortgaged by him with the plaintiff. He has put forth that he had executed the agreement for mortgage and not for sale of the land. On the one hand, it has been argued that the agreement to sell was executed as a collateral security for payment of the loan; on the other hand, it is being alleged that it was not the agreement for sale rather it was the agreement for R.S.A. No.1730 of 2007 -5- mortgage which was executed. Thus obviously, inconsistent pleas have been taken. There is no plea in the written statement that the agreement in dispute was executed as a collateral security. Raj Kumar Batra, PW3, scribe of the agreement to sell dated 11.4.2000 by way of his evidence in the form of affidavit has proved that on 11.4.2000, the defendant executed the agreement to sell dated 11.4.2000 Ex.P.3 by receiving a sum of Rs.2 lacs as earnest money and further proved that the defendant got extended the date for execution of the sale deed vide writing Ex.P.4 by receiving an additional amount of earnest money to the tune of Rs.50,000/- in their presence. As agreed upon between the parties, the sale deed was to be executed and registered on 25.11.2001. As emerges out of his evidence, the sale agreement was attested by Babu Ram PW5 and Kuldeep Singh PW6. For a little while, if it is assumed that the disputed agreement was executed as a measure of collateral security, in that eventuality, there was no occasion for the defendant- appellant to extend the period for execution and registration of the sale deed in pursuance thereof. There is overwhelming evidence on the record in proof of the fact that the agreement was executed for the sale of the disputed land and not as a collateral security. More to the point, the defendant- appellant has not let in luculent evidence to prove that Ex.P.3 was executed for the purposes of collateral security. It stands established on the record that the plaintiff throughout remained ready and willing to perform his part of the contract. Admittedly, he is in continuous possession of the land in dispute since long. The performance of contract does not involve some hardship on the defendant, which he could not foresee. The defendant has not produced any evidence to prove that he will be placed in a dis-advantageous position or face hardship if specific performance of the R.S.A. No.1730 of 2007 -6- agreement in dispute is allowed. So, the doctrine of comparative hardship which has been statutorily recognized in India, does not come into play. Consequently, the specific performance of the disputed sale agreement cannot be denied. Accordingly, the substantial question of law stands determined against the defendant- appellant. On going through the concurrent findings returned by both the Courts below, it transpires that the same warrant no interference. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. November 25, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No