Punjab-Haryana High Court
Joginder Singh vs Pawan Kumar on 14 February, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.3218 of 2011 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3218 of 2011 (O&M) Date of decision: 14.2.2012 Joginder Singh ....Appellant Vs. Pawan Kumar ....Respondent CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr. L.S.Sidhu, Advocate for the appellant.
***** G. S. SANDHAWALIA, J, (Oral).
Civil Misc. No.8885-C of 2011 Prayer made in this application is for condonation of delay of 156 days in re-filing the appeal.
The application is allowed in view of the averments made in the application, which are supported by affidavit. The delay of 156 days in refiling the appeal is condoned.
Civil Misc. No.8886-C of 2011 This is an application for making up the deficiency of court fee on Memo of Parties.
The Civil Misc. application is allowed and the applicant is allowed to make good the deficiency of court fee, which has already been affixed.
R.S.A.No.3218 of 2011
1. The present appeal has been filed by the defendant, who is aggrieved against the concurrent findings of the Courts below whereby suit of the plaintiff for specific performance has been decreed to the extent that RSA No.3218 of 2011 -2- **** the plaintiff has been held entitled to recover the amount of earnest money of Rs.1,70,000/- alongwith interest at the rate of 6% per annum from the date of agreement i.e. 17.5.2004 till realization of the entire decretal amount.
2. The case of the plaintiff was that the defendant entered into agreement to sell the land measuring 9 kanals with the plaintiff at the rate of Rs.2 lacs per acre and Rs.1,70,000/- had been paid as earnest money. The agreement was scribed by Lakhvir Singh, Document Writer and witnessed by Avinash Sood and Rattan Singh and the sale deed was to be executed by 20.5.2005. The land being under mortgaged, it was agreed that the defendant would get it redeemed before execution of the sale deed in favour of the plaintiff. The plaintiff was always willing and ready to perform his part of the contract and appeared on 23.5.2005 before the Sub Registrar, Dharamkot with the balance sale consideration since registration work at Dharamkot was done only three days in a week i.e. Monday, Wednesday and Thursday. The presence of the plaintiff was got marked by moving an application in the office of the Sub Registrar. Since the appellant threatened to alienate the land in question to some other person, the suit had been filed.
3. The defendant in his written statement denied the execution of the agreement in favour of the plaintiff. The defence taken was that Master Mangat Ram was Commission Agent at Dharamkot and Hardev Singh and Baljit Singh sons of Joginder Singh defendant were customers of said Commission Agent. Baljit Singh was a friend of Mangat Singh and had studied together and due to their friendship, defendant became the customer of said Mangat Ram and they used to sell crop at the shop of Mangat Ram. Mangat Ram had since died, his son Kala was doing the RSA No.3218 of 2011 -3- **** business of commission agent. Baljit Singh remained customer of Mangat Ram for about three years and now both had left the shop of Mangat Ram now run by his son Kala Ram and settled their account with Mangat Ram and his son Kala. The plaintiff was relative of Mangat Ram and had no concern with Baljit Singh and Hardev Singh and defendant being resident of village Badhni Kalan, Tehsil and District Moga, which is far away from village of the defendant was not a cultivator and doing the business at Badhni Kalan and did not have any land at village Kot Sadar Khan which was the village where the suit land was situated. The price of the land was very less from the actual price of the suit land. It was alleged that the agreement in question was forged, fabricated and was result of fraud and prepared by impersonation. Accordingly, it was pleaded that question of readiness and willingness did not arise.
4. On the basis of the pleadings, the trial Court framed the following issues:-
"1. Whether the plaintiff is entitled for specific performance of agreement of sale dated 17.5.2004 on the grounds as prayed for?OPP
2. Whether in the alternative, plaintiff is entitled for recovery of Rs.2,25,000/- on the grounds as prayed for?OPP
3. Whether the plaintiff has not come to the Court with clean hands?OPD
4. Whether the plaintiff has no locus standi to file the present suit?OPD
5. Whether the plaintiff is estopped to file the present suit by his own act and conduct?OPD RSA No.3218 of 2011 -4- ****
6. Relief"
5. The plaintiff examined three witnesses including himself whereas defendant examined himself apart from one Baljit Singh. Taking into consideration the evidence on record, the trial Court came to the conclusion that there was no bar for non agriculturist person to purchase the agricultural land and merely because the plaintiff was residing at a distance of 40 Kms. would not mean that he did not intend to purchase the agricultural land. The witnesses being well known persons and the agreement being scribed at Dharamkot also was not held to be suspicious circumstance since the plaintiff would induct known persons as marginal witnesses. The presence of the plaintiff was got marked before the Sub Registrar, Dharamkot vide application Ex.P2 on 23.5.2005. The fact that the land was not redeemed from the bank as per recital made in the agreement of sale was noticed and accordingly, it was held that the execution of the agreement Ex. P1 stood fully proved but since the land was mortgaged with the bank it would be a hardship for the plaintiff to get specific performance of the agreement as first charge of the bank was still in existence on the land. Accordingly, the plaintiff was held entitled to recover the said amount vide judgment and decree dated 28.2.2009 along with interest at the rate of 6% per annum from the date of the agreement i.e. 17.5.2004 till realization of the entire decretal amount.
6. Dissatisfied with the said decision, both the parties filed cross appeals before the Lower Appellate Court at Moga which vide judgment and decree dated 21.7.2010 had dismissed both of the appeals and upheld the order of the trial Court. Resultantly, the present Regular Second Appeal has been filed by the defendant.
7. Counsel for the appellant contends that the issue of whether RSA No.3218 of 2011 -5- **** agreement was forged and fabricated had not been framed, therefore, he has been gravely prejudiced. Secondly, the plaintiff was not ready and willing to perform his part of the agreement. The said submissions are not liable to be accepted. Admittedly, no effort has been made by the defendant to get the issues re-casted and get the same incorporated. After the written statement had been filed, the issues were framed, it was always open to the defendant to file an appropriate application to get the said issue re-casted. Even otherwise, once the specific defence was taken in the written statement, it was open to the defendant to lead evidence regarding this fact and he had failed to do so while examining himself apart from Baljit Singh, who is his son. Both the Courts below have noticed that the agreement in question stood duly proved since scribe and marginal witness PW-3 Avinash Sood had been examined, who also deposed regarding passing of consideration. The statement of Baljit Singh DW-2 was also taken into consideration where he had admitted that Mangat Ram was working as a Teacher in the Government Senior Secondary School, Dharamkot and, therefore, defence of the defendant that Mangat Ram was running a Commission Agent shop also has fallen flat on his face. Avinash Sood PW-3 attesting witness had clearly stated that stamp papers were purchased by Joginder Singh and the fact that the land was mortgaged with the bank finds mention in the agreement goes on to show that the defendant willingly entered into this agreement and this fact was incorporated in the agreement which was in personal knowledge of the defendant himself. The plaintiff being a resident of a village which was situated at a distance of 40 Kms. was not in a position to know the fact of mortgage and the same is only because the defendant himself had got the same incorporated in the agreement goes on to show that agreement in RSA No.3218 of 2011 -6- **** question was entered into between the parties. The fact that the suit was filed within a period of just after a year from the date when the presence was got marked by the plaintiff shows that the plaintiff was ready and willing to perform his part of contract. The Courts below have exercised their discretionary relief and denied the relief of specific performance and only ordered to refund the earnest money at a very reasonable rate of interest i.e. @ 6% per annum. No fault can be found in the reasoning adopted by the Courts below which do not suffer from any illegality or infirmity.
8. Thus, no question of law much less any substantial question of law arises from the facts of the present case which would warrant interference in Regular Second Appeal. Accordingly, the present appeal is dismissed in limine and judgments and decrees of the Courts below are upheld.
(G.S.SANDHAWALIA) JUDGE 14.2.2012 Pka