RSA No.3919 of 2008 - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.3919 of 2008 (O&M) DATE OF DECISION: 18.01.2010 **** Lachhmi Bai . . . . Appellant VS. Om Parkash . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Ashok Aneja, Advocate for the appellant. **** RAKESH KUMAR JAIN J. The defendant is in second appeal against the judgment and decree of both the Courts below whereby, suit filed by the plaintiff for specific performance was decreed as under: “It is ordered that the suit of plaintiff for specific performance of agreement to sell dated 23.7.2003 regarding suit land is dismissed. However, the suit of the plaintiff for recovery of Rs.45,000/- is decreed with interest @ 18% per annum form 23.7.2002 to 24.4.2003 @ 12% per annum from 25.4.2003 to 18.8.2006 and @ 6% per annum from 19.8.2006 till recovery. The plaintiff shall be entitled to proportionate costs. In order to secure this amount the defendant is restrained from alienating her share in the land measuring 7 kanals bearing Rect. No.44 Killa No.9/1 (0-4), 12/3(6-16) as per jamabandi for the year 1998-99 of village Bahader Ke, Tehsil RSA No.3919 of 2008 - 2 – Jalalabad, District Ferozepur till the payment of decretal amount is made to the plaintiff. The defendant being aggrieved against the aforesaid decree, preferred first appeal, which was dismissed by the learned First Appellate court by observing that : “As far as the execution of the agreement of sale dated 23.7.2002 by the present appellant in favour of respondent Om Parkash is concerned, it stands amply proved from the evidence adduced by the respondent – plaintiff. The plaintiff has examined Prem Chand, one of the attesting witnesses of the agreement of sale, who has tendered into evidence his affidavit Ex.PW1/A categorically disclosing that on 23.7.2002, Lachhmi Bai – defendant entered into an agreement to sell in favour of Om Parkash plaintiff at the rate of Rs.80000/- per acre and out of the total sale consideration, she also received a sum of Rs.45000/- as earnest money. It was scribed by the regular deeds writer namely Hardeep Singh DW2, Who has also submitted his affidavit Ex.PW2/A deposing that he scribed the agreement of sale dated 23.7.2002 at the instance of Lachhmi Bai in favour of Om Parkash and contents thereof were read over and explained to her and thereafter, she appended her thumb impression. Not only this, he also made an entry at serial No.285 dated 23.7.2002 in his register which has been maintained by him in respect of the scribe of the above said agreement of sale Ex.P1. Besides the attesting witness and the scriber, Om Parkash plaintiff himself appeared in the witness box and re-iterated the material facts. Moreover, the present appellant lachhmi Bai did not deny her thumb impression on the agreement of sale and in such a situation, the burden shifts upon her to establish as to under what circumstances her thumb RSA No.3919 of 2008 - 3 – impression appeared on the agreement of sale Ex.P1. The contention of the learned counsel for the appellant qua the execution of the sale deed is absolutely without any substance. So, this Court is of the considered view that no interference of this Court is justified in the findings arrived at by the learned Lower Court regarding issue No.1 and as such the same are affirmed. As far as the contentions of the learned counsel for the appellant with regard to the forfeiture of the earnest money is concerned, again the same are beyond pleadings and cannot be taken into consideration. The authority relied upon by the learned counsel for the appellant captioned as V. Lakshmanan Vs. BR Mangagiri & ors. (Supra) is of no help to him. In the case in hand, the defendant – appellant did not admit the execution of the agreement of sale deed 23.7.2002 Ex.P1, rather she totally denied the same. There is nothing on the record to suggest either in the pleadings or in the evidence brought on record by the defendant – appellant before the learned lower court that she has been ready and willing to perform her part of the contract. So in such a situation, the question of forfeiture of the earnest money does not arise at all. In the above captioned case, the proposed vendor had categorically admitted the execution of the agreement in the written statement as well as in the reply to the notice, but in the instant case, the present appellant – defendant was neither ready and willing nor she ever showed such an intention at any point of time. So in such a situation, this Court is of the considered view that the learned trial Court has rightly concluded that the present appellant – defendant is liable to pay the earnest money alongwith interest. So the findings of the learned lower Court on issue No.2 are also affirmed and in RSA No.3919 of 2008 - 4 – view of affirmation of the findings on issues No.1 and 2, no interference of this Court is justified in the findings recorded by the learned Lower Court on issue No.4. The suit for specific performance or in the alternative suit for recovery of earnest money alongwith interest is legally maintainable and as such, the findings on issue No.4 are also affirmed.” Still aggrieved, defendant has come in second appeal as the defendant does not want to return the earnest money, which has to be ordered to be returned with interest. In this regard, following questions have been framed: “(a) Whether the judgments and decrees of both the courts below are perverse? (b) Whether the suit for alternative relief can be decreed if the plaintiff fails to prove his readiness and willingness to perform his part of contract? (c) Whether the amount of earnest money stand forfeited if the sale deed is not executed within the stipulated period? (d) Whether the finding of the Court below is the result of mis-reading of evidence.” Ironically, learned counsel for the appellant has failed to substantiate any of the question of law, which have been framed in the appeal as no meaningful argument has been raised during the course of hearing because all the question which have been raised are basically questions of facts. While deciding issue No.2, the findings recorded by the trial Court is as under: “In order to prove this issue Om Parkash plaintiff while appearing as PW1 tendered into evidence his RSA No.3919 of 2008 - 5 – affidavit Ex.PW3/A. It is mentioned in this affidavit that the plaintiff remained ready and willing to perform his part of the contract. Due to holiday on 13.4.2003 the defendant was informed by the plaintiff to come to the office of Joint Sub Registrar, Guruharsahai for executing the sale deed on 10.4.2003. The plaintiff remained present there but defendant did not turn up. Then the plaintiff moved application to Joint Sub Registrar, in this regard. Ex.P4 is that application. As per Ex.P1, the date of specific performance was 13.4.2003. It was holiday on that date on account of Baisakhi. The plaintiff appeared before the Joint Sub Registrar on 10.4.2003, which was working day. The plaintiff filed this suit on 24.4.2003. He did not wait for period of three years for filing this suit. As such, I hold that the plaintiff remained ready and willing to perform his part of the contract. Therefore, issue No.2 is decided in favour of the plaintiff.” In view of the above discussion, I do not find any merit in the present appeal as no question of law much less substantial is involved in it. Hence, the same is hereby dismissed without any order as to costs. (RAKESH KUMAR JAIN) JANUARY 18, 2010 JUDGE vivek