Punjab-Haryana High Court
Vinod Kumar Tanwar vs Jai Bhagwan on 25 February, 2012
Author: M.M.S. Bedi
Bench: M.M.S.Bedi
RSA No.3776 of 2011 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3776 of 2011 (O&M).
Decided on: February 25, 2012.
Vinod Kumar Tanwar
.. Appellant
VERSUS
Jai Bhagwan
.. Respondent
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CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI
***
PRESENT Mr.Mani Ram Verma, Advocate,
for the appellant.
M.M.S. BEDI, J.
CM No.10759-C-2011 For the reasons mentioned in the application, delay in filing of the appeal is condoned.
Misc. application stands allowed.
RSA No.3776 of 2011 Defendant has filed this second appeal under Section 100 CPC, aggrieved by money decree passed in favour of the plaintiff-respondent by the Courts below. The plaintiff-respondent had filed a suit for recovery of principal amount of ` 18,000/- and interest of ` 9,450/- along with future interest on the ground that the defendant had entered into an agreement of sale with the plaintiff to sell his plot measuring 200 sq. yards for a sum of ` 30,000/- and ...1 RSA No.3776 of 2011 (O&M) received earnest money of ` 5,000/- by executing a writing on his letter pad. The defendant-appellant was asked to execute the sale deed on different occasions but he failed to do so, as such, a notice was sent to the defendant which he replied levelling allegations against the plaintiff and mentioning that the cost of the plot mentioned therein has doubled the amount settled between the parties. In view of above background, the plaintiff-respondent sought refund of the earnest money of ` 18,000/- along with interest @ 18 per cent per annum. The defendant-appellant contested the suit claiming that the plaintiff had entered into an agreement of sale with defendant for purchase of plot on 14.3.2002 and he paid earnest money of ` 5,000/-. The date of payment of balance sale consideration was 15.5.2002, but the plaintiff-respondent failed to pay the balance sale consideration uptil 15.5.2002 and requested for 5-7 days to arrange the money and to get the sale deed registered. The time was extended by the defendant-appellant with a specific condition that if money was not paid within 5-7 days, the earnest money would be forfeited. The date to execute the sale deed seems to be extended by 31.5.2002. The plaintiff paid a sum of 13,000/- and prayed for 15-20 days more time to pay the remaining amount. Period for payment of remaining amount of ` 12,000/- was fixed up to 30.6.2002, but the plaintiff neither paid the balance amount nor approached the defendant for execution of the sale deed. The defendant had sent a message to the plaintiff, but the plaintiff did not get the sale deed executed. Meanwhile, the cost of the plot has ...2 RSA No.3776 of 2011 (O&M) doubled, as such, the plaintiff having violated the conditions of agreement of sale, his earnest money was liable to be forfeited. The plaintiff had sent a notice through his counsel to which the defendant had submitted the reply.
On the pleadings of the parties, the following material issues was framed:-
"Whether the plaintiff is entitled to recover a sum of ` 27,450/- along with interest @ 18 per cent per annum from the date till realisation as prayed for? OPP."
The Courts below, on appreciation of evidence, arrived at a conclusion that the agreement had been entered into between the parties vide writing EX.P1. In writing EX.P1, dated 14.3.2002, it was mentioned that if the plaintiff did not execute the sale deed on 15.5.2002, his earnest money would be forfeited but in the subsequent writing dated 31.5.2002, there is no mention of any condition regarding forfeiture of earnest money, in case the sale deed is not executed by 30.6.2002. In view of said circumstances, there was no justification for forfeiture of earnest money of the plaintiff by the defendant. Besides this, the Courts below arrived at a conclusion that the defendant has also not been able to establish that he had ever gone to the office of Sub Registrar on 30.5.2002 for execution of the sale deed. In view of defendant having failed to establish that he was willing to perform his part of the contract, the ...3 RSA No.3776 of 2011 (O&M) earnest money could not be said to have been forfeited.
It was argued before the lower appellate Court that the agreement EX.P1, was not stamped and could not be admitted in evidence. The lower appellate Court observed that since the document had been admitted by the defendant and the defendant had not disputed his signatures and no objection was raised when the document was exhibited, as such, the said admission could not be questioned at any stage of the suit or proceedings that it was not duly stamped as per Section 36 of the Stamp Act.
Mr.Mani Ram Verma, learned counsel for the defendant-appellant has vehemently contended that vide document EX.P1/1 dated 14.3.2002, the defendant, who is an advocate, has entered into an agreement with plaintiff-respondent to sell his plot measuring 200 sq. yards by 15.5.2002 on receipt of earnest money of ` 5,000/-. It was specifically mentioned in EX.P1 that in case the plaintiff fails to execute the sale deed, the earnest money would be forfeited. There is an endorsement under the document EX.P1 which has been written on the letterhead pad of defendant advocate that on 31.5.2002 another sum of ` 13,000/- had been received by him and remaining ` 12,000/- would be paid by 30.6.2002. It has been argued that the terms and conditions of original agreement dated 14.3.2002, stood extended till 30.6.2002 and the plaintiff-respondent having failed to pay a sum of ` 12,000/- and get the sale deed executed, the total amount of ` 18,000/- stood forfeited. He has argued that the document being not registered, is not admissible in evidence.
...4 RSA No.3776 of 2011 (O&M) Counsel for the appellant has sought to argue on the following law point: -
Whether EX.P1 has been misinterpreted by the Courts below and that whether EX.P1 is admissible in evidence.
I have heard the counsel for the defendant-
appellant, at length, and carefully considered his contention regarding the legal admissibility of document EX.P1. The defendant has admitted that agreement of sale was entered into between the parties for purchase of plot on 14.3.2002, on receipt of earnest money of ` 5,000/-. It is also admitted that the agreement was extended on 31.5.2002 with a promise that the sale would be executed on 30.6.2002. Document EX.P1, has been admitted by the defendant in his pleadings as well as in his evidence. No objection was raised at the time of exhibiting the said document. The document which is admitted and no objection is raised at the time of production of that document regarding deficiently stamped, it is not permissible for a party to question the admission of said document.
Section 36 of the Stamp Act, reads as follows:-
"36.Admission of instrument where not to be questioned: - Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
...5 RSA No.3776 of 2011 (O&M) Besides this, document EX.P1 is neither a pronote or promissory note. The defendant-appellant who himself being an Advocate and conversant with the legal provisions had not raised any objection at the time of admission of the document in evidence, would be deemed to have waived his right regarding the admissibility of the document. Moreover, the receipt of earnest money of ` 18,000/- is admitted by the defendant but his only claim is that the amount stands forfeited. The readiness and willingness of the defendant-appellant to execute the sale deed is also not established. In the reply to the notice received by him, he had mentioned that the value of the plot has doubled. In view of above circumstances, the question of law raised by the counsel for the defendant-appellant is answered in negative. Finding no substantial question of law involved in the matter warranting interference, the appeal is dismissed.
(M.M.S.BEDI) JUDGE February 25, 2012.
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