RSA No.4125 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4125 of 2008
Date of Decision:15.12.2008
Dalip Kaur
....appellant
Versus
Harjit Pal Singh
.....respondent
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Ms.Shweta Bawa,Advocate
for the appellant
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RAKESH KUMAR GARG J.
As per the averments made in the plaint, the plaintiff Harjit
Pal Singh alleged that on 25.6.2002, the defendant Dalip Kaur agreed to
sell her land measuring 16 Marlas, fully described in the title of the plaint
for a sum of Rs. 2 lacs and after receiving a sum of Rs. 50,000/- executed
an agreement to sell dated 25.6.2002 in favour of the plaintiff in the
presence of the attesting witnesses. The sale deed was agreed to be
executed and got registered by the defendant on or before 20.6.2003. It is
alleged by the plaintiff that he has always been ready and willing and is still
so ready and willing to perform his part of the contract, but the defendant
Dalip Kaur backed out from the agreement and failed to execute the sale
deed as agreed. Hence the plaintiff filed this suit for grant of decree for
specific performance of the agreement to sell dated 25.6.2002 or in the
alternative for the recovery of Rs. 2 lacs with interest.
The defendant contested the suit and filed her written
statement, wherein she denied having executed the alleged agreement to
sell the property in question in plaitniff’s favour or having received any
earnest money there under from the plaintiff. The defendant has contended
that in fact she borrowed a loan of Rs. 50,000/- from the plaintiff, out of
RSA No.4125 of 2008 2
which some amount has already been returned by her and she is also
ready to pay the remaining amount also. It is contended that the plaintiff
has got executed the agreement to sell from the defendant in lieu of the
above said loan. The house in question is the only residential house of the
defendant and, therefore, she could not have agreed to sell the same.
With these contentions, the defendant prayed for the dismissal of the
plaintiff’s suit.
After hearing the learned counsel for the parties and
considering the evidence adduced by the parties, vide Judgment and
Decree dated 09.06.2008, the trial Court decreed plaintiff’s suit for the
alternative relief for the recovery of Rs.50,000/- with costs and with interest
@ 9% per annum with effect from the date of execution of the agreement
Ex. P1 till the date of decree and future interest @ 6% per annum with
effect from the date of decree till its realization.
Aggrieved by the aforesaid judgment and decree of the trial
Court, the plaintiff filed an appeal for modifying the judgment and decree of
the trial Court and for passing a decree for possession of the suit land by
way of specific performance of the agreement to sell Ex.P-1. It is pertinent
to mention here that defendant has not challenged the findings of the trial
court by filing an appeal before the Lower Appellate Court.
The Lower Appellate Court vide its judgment and decree
dated 03.09.2008 accepted the appeal filed by the plaintiff and modified the
decree of the trial Court and passed a decree of specific performance of
the agreement to sell dated 25.06.2002 in favour of the plaintiff and
directed the appellant/defendant to execute the sale deed in favour of the
plaintiff in respect of suit property after receiving the balance consideration.
While allowing the appeal, the District Judge, Faridkot
observed as under:
“In this case, the respondent-defendant has not denied the
RSA No.4125 of 2008 3execution of the agreement, but she contends that the
agreement was got executed from her by the plaintiff as a
collateral security for the repayment of the loan raised by
her from the plaintiff, but the learned Lower Court instead of
directing the respondent-defendant Dalip Kaur to execute
the sale deed in terms of the agreement to sell Ex. P-1 has
passed a money decree for a sum of Rs. 50,000/- which
was paid by the plaintiff to the defendant towards earnest
money, along with interest, in favour of the plaintiff.
Perhaps it weighed with the learned Lower Court that the
document in question was a collateral security. However, to
my mind, no such collateral security has been proved by the
respondent. As per the respondent-defendant, in the past
she had raised a loan of Rs.50,000/- from the appellant-
plaintiff, which has been partly repaid by her and partly
remains to be paid. However, in support of her contention,
the respondent-defendant did not lead any cogent and
convincing evidence. She could not produce any document
showing that in fact she had raised a loan from the plaintiff.
She also could not prove that she has since returned a part
of the loan to the appellant, as contended by her before the
learned Lower Court. No writing, no pronote and no receipt
regarding the repayment has been produced, which itself
proves that the document Ex. P1 was in fact intended and
executed by the defendant as an agreement to sell the suit
property and not merely a collateral security. Thus, the plea
set up by the defendant that the agreement Ex. P1 was got
executed from her by the plaintiff as a security for the
repayment of the loan raised by her from the plaintiff,
RSA No.4125 of 2008 4remains unproved. On the other hand, the appellant-plaintiff
has successfully proved the execution of the agreement to
sell Ex. P-1 as well as the passing of consideration sum
there under. He has also proved that he throughout
remained ready and willing and is still so ready and willing
to perform his part of the contract. Under these
circumstances, instead of granting the alternative relief and
passing a money decree, the learned lower Court should
have passed a decree for specific performance of the
agreement to sell dated 25.6.2002 Ex. P1.”
Learned counsel for the appellant has vehemently argued
that in this case the plaintiff-respondent has failed to prove that he was
always ready and is still ready to perform his part of the contract. The
plaintiff-respondent has not been able to show and prove that on the
stipulated date, he remained present in Tehsil complex or did get his
presence marked by filing an application and nothing has come on the file.
Even the plaintiff-respondent did not serve any notice upon the appellant to
get the sale deed executed immediately after sale deed. The notice is
stated to have been sent by the plaintiff on 01.08.2005, whereas the
execution of the sale deed was allegedly fixed on 20.06.2003. These facts
clearly show that respondent was not ready to get the sale deed executed
as he knew that the agreement itself was not the sale of the land and in
these circumstances, the version of the appellant-defendant that she never
intended to sell her only residential house and in fact the agreement was
as security, should have been executed. The learned counsel has further
argued that the Lower Appellate Court has wrongly modified the decree
passed by the trial Court as from the facts it is proved that it was not a case
for grant of decree for specific performance of an agreement to sell.
I have heard learned counsel for the appellant. However, I
RSA No.4125 of 2008 5
find no merit in the arguments raised by the learned counsel for the
appellant. In this case, the appellant has not denied the execution of the
agreement but she contended that the agreement was got executed by her
as a collateral security for the repayment of the loan raised by her from the
plaintiff. However, the appellant has failed to prove her plea. As per the
appellant, she had raised loan of Rs.50,000/- from the plaintiff-respondent
which had been partly repaid by her and partly remains to be paid.
However, in support of her contention, she neither lead any cogent
evidence nor could produce any document in support of her argument.
She even could not prove that she has returned a part of the loan to the
appellant. Thus, the plea set up by the appellant that the agreement Ex.P-
1 was got executed from her by the plaintiff as a security for the repayment
of the loan raised by her, remains unproved.
On the other hand, on appreciation of evidence, the
Courts below recorded a finding of fact that plaintiff remained ready and
willing to perform his part of the contract and in fact these findings of the
trial Court have never been challenged by the appellant as admittedly no
appeal was filed by the appellant against the judgment and decree of the
trial Court. There is nothing on record which would disentitle the plaintiff-
respondent from the grant of a decree for the specific performance of the
agreement to sell, in question.
Thus, no fault can be found with the findings recorded by
the Lower Appellate Court.
No substantial question of law arises.
Dismissed.
(RAKESH KUMAR GARG)
JUDGE
15.12.2008
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