Punjab-Haryana High Court
Mohinder Singh vs Darshan Kumar on 24 July, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No.1327 of 2013 (O&M)
Date of decision: 24.7.2013
Mohinder Singh
-----appellant(s)
Vs.
Darshan Kumar
-----Respondent(s)
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Ms. Gurvir Kaur, Gill, Advocate.
for the petitioner.
---
RAKESH KUMAR GARG, J.
CM No.3562 of 2013:
For the reasons mentioned in the application, delay of 34 days in filing this appeal is condoned.
CM No.3563 of 2013:
The application is allowed subject to all just exceptions.
RSA No.1327 of 2013 (O&M):
This is defendant's second appeal, challenging the judgment and decree of the trial Court dated 18.10.2010, whereby Kumar Ashwani in a suit for possession by way of specific performance of 2013.07.26 16:13 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1327 of 2013 2 agreement of mortgage dated 9.11.2001, a decree has been passed against the appellant and in favour of the plaintiff- respondent for recovery of a sum of Rs.1 lac along with interest @ 8% per month from the date of execution of agreement till the filing of the suit with future interest @ 6% per annum from the date of filing of the suit till its realization and judgment and decree dated 18.10.2012 of the lower Appellate Court, dismissing the appeal against the aforesaid judgment and decree of the trial Court.
As per the averments made in the suit, the appellant entered into an agreement dated 9.11.2001 with the plaintiff- respondent to mortgage the suit land for Rs.1,30,000/- and received a sum of Rs.1,00,000/- as earnest money from him and agreed to execute the registered mortgage deed in favour of the plaintiff-respondent on or before 8.11.2002. According to the plaintiff-respondent, the defendant-appellant failed to execute the mortgage deed in his favour, which necessitated filing of the instant suit.
In the written statement, ownership of the defendant regarding property in dispute is admitted. Remaining averments of the plaint have been denied. It is submitted that the defendant never entered into any agreement for mortgage of the land. The alleged agreement is forged, fabricated, fake, false and antedated document. Receipt of earnest money or terms and conditions of Kumar Ashwani 2013.07.26 16:13 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1327 of 2013 3 the agreement are specifically denied. It is submitted that in fact, it is the plaintiff who was the commission agent of defendant, cleverly got thumb impressions of defendant on stamp papers and later on converted those stamp papers as agreement in question. Once the defendant neither agreed to transfer the rights of property, nor ever received any earnest money, question for performing of the part of contract does not arise. Remaining averments of the plaint were denied. Thus, the dismissal of the suit was prayed.
The trial Court after considering the evidence on record and hearing learned counsel for the parties, held that the agreement in question was executed between the parties and the appellant received a sum of Rs.1,00,000/- as earnest money. However, the said document was executed only as a collateral security to secure the loan amount. It was further held that since the appellant had received a sum of Rs.1,00,000/-, the plaintiff was entitled to recover the same along with interest.
The first appellate Court upheld the findings of the trial Court on issue No.1, however, reversing the findings on issue No.2 in favour of the plaintiff-respondent upholding the alternative relief in his favour, dismissed the appeal.
Learned counsel for the appellant has vehemently argued that both the Courts below reached to erroneous conclusions and have granted alternative relief of recovery in Kumar Ashwani 2013.07.26 16:13 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1327 of 2013 4 favour of the plaintiff-respondent against the evidence on record and therefore, following substantial questions of law arise in this appeal:-
"a) Whether in view of the findings on issue no.1 and 2 by the ld. Trial Court the findings on issue no.3 can be decided in favour of respondent/plaintiff?
b) Whether the ld. Appellate Court committed illegality by reversing the findings on issues no.1 and 2 returned by the Trial Court in absence of any appeal filed by the plaintiff/respondent?
c) Whether both the Courts below reached to the palpable erroneous conclusions and granted the alternative relief of recovery in favour of the respondent/plaintiff in the facts of the case?
d) Whether the document Ex.P-1 found and held to be executed for security purposes then the same can be taken as negotiable instrument for recovery without any corroborative documents?
A perusal of the impugned judgments and decrees would show that both the Courts below, on appreciation of evidence, have recorded a concurrent finding that the appellant executed the document dated 9.11.2001 and received a sum of Rs.1 lac as earnest money.
Nothing has been argued before this Court to challenge the findings of the Courts below on the question of Kumar Ashwani 2013.07.26 16:13 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1327 of 2013 5 execution of the document in question and receipt of a sum of Rs.1,00,000/- as earnest money, though the appellant has taken a specific stand that the document in question is the result of fraud. In view thereof, no fault can be found in the judgments and decrees of the Courts below, whereby the plaintiff-respondent has been given alternative relief of recovery of Rs.1,00,000/- from the appellant.
No substantial question of law, as raised, arises in this appeal.
Dismissed.
July 24, 2013 [RAKESH KUMAR GARG]
ak JUDGE
Kumar Ashwani
2013.07.26 16:13
I attest to the accuracy and
integrity of this document
High Court Chandigarh