R.S.A. No. 1120 of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 1120 of 2006
Date of Decision : 23.4.2009
Balkar Singh
....Appellant
Versus
Gurdit Singh
...Respondent
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr.S.K.Arora, Advocate
for the appellant.
None for the respondent.
...
MAHESH GROVER, J.
The contention of the learned counsel for the appellant is
that the learned trial Court in para 17 of its judgment has observed as
under :-
“17. In the light of above discussion, it is held that the
defendant did execute the agreement Ex.P1 and writing for
extension of time Ex.P2 and the same cannot be said to be
a forged and fabricated and fraudulent document. All these
issues are accordingly decided against the defendant and
in favour of the plaintiff.”
And despite the said observation it went on to hold that the agreement
might have been got executed from the defendant as a measure of
R.S.A. No. 1120 of 2006 -2-
security. The following reasons were detailed by the learned trial
Court for coming to the aforesaid conclusion :-
“i) Firstly, the agreement in question is not scribed
by a regular deed writer nor any such deed writer has been
produced as witness by the plaintiff;
ii) Secondly, despite having paid a sum of
Rs.1,80,000/- out of the total sale consideration of
Rs.2,80,000/-, the plaintiff did not insist upon getting the
possession of the suit land. This fact is evident as by way
of the present suit, the plaintiff has claimed the possession
of the property in dispute which means that the possession
was not delivered to him at the time of the execution of the
agreement. This further shows that there was no intention
of sale or purchase of land on the basis of the agreement
and further that it was executed only as a measure of
security for the refund of the money advanced through it;
iii) Thirdly, though the agreement was executed on
4.11.99 but the stipulated date for execution of the sale
deed was fixed a year after i.e. on 3.11.2000 which was
further extended to 27.12.2000. No explanation has been
given in the writing Ex.P2 as to why the stipulated date
was further deferred. Ordinarily, a person who has parted
with a sum of Rs.1,80,000/- on account of earnest money
would insist upon immediate execution of the sale deed
and would also insist upon at least getting the possession
of the property. This further shows that the plaintiff did
R.S.A. No. 1120 of 2006 -3-not intend to purchase the land in question.”
It is the contended case of the appellant that when the
findings regarding the validity of the agreement to sell have been
categorically recorded, the finding thereafter regarding the same
being for security purpose was totally erroneous. The findings were
affirmed by the first Appellate Court and the alternate relief for
recovery of the amount was granted to him in the following terms :-
“In the light of my findings on the aforesaid issues, the suit
of the plaintiff is decreed in the alternative for recovery of
Rs.1,80,000/-. The plaintiff is further held entitled to interest at the
rate of 9% per annum from the date of the suit till the date of the
decree and with future interest at the rate of 6% per annum till the
realization of the decretal amount. Decree sheet be drawn accordingly
and file be consigned to the record room.”
It is now contended by the learned counsel for the
appellant that the aforesaid findings are totally perverse. The grant of
relief under Section 20 of the Specific Relief Act by exercising the
discretion has resulted in great prejudice to the appellant.
During the course of arguments, it transpires that a Regular
Second Appeal bearing No.1625 of 2006 had been filed by the
vendor and the respondent was arrayed as defendant in the suit filed
by the appellant. In that appeal, the following order was passed :-
“This is defendant’s appeal filed against the
order dated 12.12.2005 passed by Additional District
Judge, Ferozepur vide which judgment and decree of the
trial Court granting alternative relief of Rs.1,80,000/- has
R.S.A. No. 1120 of 2006 -4-been affirmed.
Learned counsel argued that the relevant
documents are shrouded by suspicious circumstances. The
respondent being a commission agent was in a position to
get the thumb impression of the appellant on blank papers.
It is further argued that another circumstance which shows
that the documents are forged, is that the attesting
witnesses are the close relations of the respondent.
The arguments raised by learned counsel are
without any force. Admittedly, the agreement to sell has
been proved by the attesting witnesses and there is nothing
on record to show that the same has been found to be
forged. It is further argued that neither the deed writer nor
stamp vendor has been produced. This argument also
cannot be accepted, as non-examination of the above two
persons does not create any doubt in the execution of the
document.
Learned counsel lastly argued that the interest
awarded by the Courts below @ 9% per annum from the
date of suit till the date of decree, is on the higher side,
whereas, these days, all the Courts including the Apex
court have been awarding 6% per annum interest.
Accordingly, the judgments and decrees passed by the
Courts below are modified only to the extent that plaintiff
shall be entitled to interest from the date of suit till the
date of decree as well as future interest @ 6% per annum.
R.S.A. No. 1120 of 2006 -5-
Except the aforesaid modification in the rate of
interest, the appeal fails and it is dismissed in limine.”
A perusal of the aforesaid implies that the exercise of
discretion by the learned trial Court under Section 20 of the Specific
Relief Act has been affirmed with a minor modification regarding
grant of rate of interest. In this view of the matter, once the findings
which have been impugned in the present appeal have been affirmed,
the present appeal cannot be answered. It is also to be noticed that the
appellant was respondent in the aforesaid appeal. Since the findings
in the aforesaid appeal impugning this very judgment have already
been affirmed, the present appeal cannot be answered in favour of the
appellant.
Dismissed.
23.4.2009 (MAHESH GROVER)
JUDGE
dss