R.S.A. No.1730 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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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.
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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