ORDER
Permod Kohli, J.
1. This Regular Second Appeal has been preferred by the defendant in the Suit No. 567/9-8-1978 filed by respondent No. 1 – plaintiff, Hazura Singh (now deceased) for specific performance of contract. Briefly stated the facts as apparent from the record, are that Ram Kishan and Gurdial Singh, appellants/defendants Nos. 1 and 2, respectively, executed an agreement to sell dated 30-12-1976 in favour of Hazura Singh, plaintiff-respondent for the sale of land measuring 20K-8M at the rate of Rs. 1000/- per bigha. In terms of the agreement, sale deed was to be executed and registered by 31-12-1977. The agreement further stipulated that on failure of the vendors to execute the sale deed, vendees are entitled to recover advance amount along with damages at the rate of Rs. 100/- per bigha. The agreement also specifies payment of advance amount of Rs. 7900/-. It is admitted case of the parties that the agreement in question was never implemented by the parties. In the meanwhile, a Suit No. 849/29-12-1977 came to be filed by defendants Nos. 4 and 5 wherein a collusive decree was passed in respect of the suit land in favour of Devinder Singh and Inderjit Singh, minor sons of Ram Kishan. On the basis of this decree, land in question was transferred in favour of the minors named above.
2. On failure of the vendors/appellants to execute the sale deed vendee Hazura Singh-respondent filed suit for specific performance of contract on the basis of the agreement to sell dated 30-12-1976, and pleaded that he was and is ready and willing to pay the balance sale consideration in terms of the agreement. He also mentioned that on the date fixed for execution of the sale deed, he approached the Sub-Registrar, Sirhind with the balance sale consideration for getting the sale deed executed in his favour. On finding that defendant Nos. 1 and 2 did not turn up, he filed the affidavit before the Sub-Registrar and got his presence marked. It is specifically mentioned that since the sale deed was to be executed on 31-12-1977, the said date and 1st of January, 1978, being holidays, he approached Sub-Registrar, Sirhind on 2-1-1978. He had earlier served a notice dated 26-12-1977 and another notice dated 3-6-1978 was also served asking the vendors to execute the sale deed. The plaintiff also challenged decree dated 2-1-1978 passed in Civil Suit No. 849 dated 29-12-1977 in favour of minor sons of Ram Kishan who were also impleaded as defendant Nos. 4 and 5 in the suit. The defendants-vendors in their written statement denied the execution of the agreement to sell and also the payment of advance money of Rs. 7900/- by the proposed vendees. During the course of the trial, it was brought on record that the defendants/vendees borrowed an amount of Rs. 7900/- as loan from the plaintiff-vendee and executed a pronote and a receipt for a sum of Rs. 7900/-. The amount was to be repaid by 25-12-1977. It was further agreed that if they fail to do so, they will execute the sale deed in favour of the plaintiff in respect of the suit land by 31-12-1977. This fact was duly incorporated in the agreement to sell. During the trial, the trial Court framed as many as seven issues which read as under :-
1. Whether the defendant numbers 1 and 2 have executed an agreement of sale dated 30-12-1976 in favour of the plaintiff? OPP.
2. Whether the plaintiff has been ready and willing to perform his part of the contract? OPR.
3. Whether the plaintiff is entitled to the specific performance of the contract? OPR.
4. Whether the decree dated 29-12-1977 is not binding on the plaintiff and is null and void as alleged? OPP.
5. Whether the agreement is null and void as alleged? OPD.
6. Whether the plaintiff is entitled to Rs. 9125/- as alternative relief? OPR
7. Relief.
3. While deciding issue No. 1, the trial Court returned findings that the defendants/respondents borrowed a sum of Rs. 7900/- from the plaintiffs arid executed a pro note and a receipt which were duly proved in evidence as Exs. P-1 and P-2, respectively. It also returned a finding that the defendants had executed an agreement simultaneously on the same date on which pronote and receipt were executed undertaking to sell the land measuring 20 kanals and 8 marlas, in the event of their failure to pay the loan amount of Rs. 7900/-. Based upon above findings, the trial Court decreed the suit for specific performance. Vide judgment and decree dated 14-8-1981, the trial Court directed the plaintiff to pay Rs. 4337.50P to the defendant Nos 1 and 2 by 31-8-1981 and a direction was issued to the defendant Nos. 1 and 2 to execute the sale deed in favour of the plaintiff by 10-9-1981, failing which the plaintiff shall be entitled to get the sale deed executed through Court in terms of the agreement. The said judgment and decree dated 14-8-1981 became subject-matter of challenge in two appeals, one preferred by the defendants-vendees being CA No. 23-T/1981 and other filed by Hazura Singh, plaintiff against the defendants. The defendants challenged the decree for specific performance as granted by the trial Court whereas the plaintiff filed the appeal for modification of the decree to the extent that he is entitled to recover damages from the defendants and the amount payable as well as sale consideration should be Rs. 3112/- after deducting Rs. 1225/- as an amount of damages. The First Appellate Court vide its judgment and decree dated 8-8-1983 dismissed the appeal filed by the defendants and allowed the appeal filed by the plaintiff and consequently directed the defendants to execute sale deed in favour of the plaintiff within one month from the date of the order, failing which the plaintiff shall be entitled to get the sale deed executed through Court. The First Appellate also recorded in tits judgment that the plaintiff has deposited a sum of Rs. 4337.50P in the trial Court in terms of its judgment. Both these judgments have been assailed in the present Regular Second Appeal.
4. At the time of admission of this appeal, on 17-1-1984 this Court passed the following order:
CM No. 2948-C/1983 in RSA No. 2414/1983
Present : Mr. Viney Mittal, for the applicant-appellants
Mr. Puran Chand, for the respondents.
Having heard the learned Counsel for the parties, I find that instead of disturbing the possession of the appellants/applicant on the suit land, it would be in the interest of justice if they are made to refund the earnest money (Rs. 7,900/-) alleged to have been paid at the time of execution of the agreement, Exhibit P-3, dated December 30,1976. Decree-holders are also allowed to withdraw the amount of Rs. 4,337/- which they have deposited in the lower Court in terms of the decree. All this is without prejudice to the rights of either of the parties to this litigation.
The learned Counsel for the applicant seeks time to make the payment of the above-noted amount of Rr 7,900/-. The case is adjourned to February 20, 1984. In the meantime, the respondents/decree-holders may also take steps for the withdrawal of the above-noted amount lying deposited in the trial Court.
Stay of dispossession to continue.
January 17, 1984
Sd/- Judge.
5. On 22-2-1984, another order was passed by this Court which reads as under:
CM No. 2948-C/1983 in RSA No. 2414/1983
Present : Mr. Viney Mittal for the applicant-appellants
Mr. Puran Chand, for the respondents.
The learned Counsel for the respondents accepts that in terms of my order dated 17th January, 1984, the appellants have paid Rs. 7900/- to the respondents. He, however, prays that the stay order granted vide order dated 8th December, 1983 be affirmed subject to the condition that the appellants are restrained from transferring the suit property in any manner till the final disposal of this appeal.
The appellants through their counsel undertake not to transfer the suit land till the final disposal of this appeal and, thus, the above-noted slay order dated 8lh De cember, 1983, stands affirmed.
22-2-1984
Sd/- Judge.
6. Both the sides have made detailed submissions on the controversy involved in the present appeal. However, learned Counsel for the appellant drew my attention to the orders dated 17-1-1984 and 22-2-1984. noticed hereinabove. From the above orders, it is evident that this Court, while hearing the matter on 17-1-1984 formulated an opinion that instead of disturbing the possession of the appellants, it would be in the interest of justice if they are made to refund the earnest money. On 22-2-1984, it is again recorded that the amount of earnest money of Rs. 7900/- has been paid to the plaintiffs-decree-holders. During the course of arguments, it has also been brought to my notice that the balance amount of sale consideration of Rs. 4337.50P which was deposited by the plaintiff-respondent before the trial Court after the passing of decree, has also been withdrawn by the plaintiff. Meaning thereby that the plaintiff has already received not only the earnest money which was paid to the appellants/defendants under the pronote and receipt which is also alleged to be the sale consideration, but has also withdrawn the balance amount of sale consideration earlier deposited after the passing of the decree by the trial Court. Let me examine the question whether the above act on the part of the plaintiff/respondent amounts to waiver of his right to seek the relief of specific performance. A Constitution Bench of Hon’ble Supreme Court in the case of Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan , defined the connotation “waiver” and observed as under:
53. …The generally accepted connotation is that to constitute “waiver,” there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is m agreement to release or not to assert a right, estoppel is a rule of evidence….
7. “Waiver” is thus a rule of conduct. This conduct on the part of the plaintiff/respondent amounts to waiver of his right for seeking specific performance of contract. It has been argued on behalf of the appellant/defendant that the amount of Rs. 7900/- was not a consideration for the agreement to sell and was merely a loan under the pronote and receipt duly executed by them in favour of the respondents/plaintiff. He further contended that since the consideration was a loan amount for which requisite documents were duly executed, the same also cannot constitute a consideration under the agreement to sell, particularly, when the plaintiff retained both the documents and produced the same in the Court. Without going into this aspect of the matter, I am of the considered view that the plaintiff by his act and conduct has rendered himself disentitled to seek relief of specific performance of agreement to sell. This opinion of mine is based on the observations of this Court duly recorded in the order dated 17-1-1984 that the defendants/vendors should not be made to suffer the decree, and their possession be not disturbed and it would be in the interest of justice if the earnest money is refunded. These observations recorded by this Court were never challenged by the respondents/plaintiffs. To the contrary, the plaintiff/respondent accepted the observations and in due implementation thereto, not only received the earnest money from the plaintiff, but also withdrew the balance amount of sale consideration deposited by him before the trial Court after passing of decree in his favour. Plaintiff/respondent was under no obligation to receive the amount of earnest money from the appellants/defendants or to withdraw the sale consideration of Rs. 4337.50P deposited by him in the trial Court. This Court only granted liberty to him to withdraw the amount. The plaintiff/respondent chose to withdraw the amount and also received the amount of earnest money. This is a clear act of waiver of his rights on his part. The conduct of the plaintiff/respondent is sufficient to deny him the relief prayed for in the suit. As a matter of fact, he has accepted the observations of this Court recorded on 17-1-1984 and has become a willing party to abandon his claim for specific performance of agreement to sell. It is under the above circumstances. I am not inclined to grant the relief of specific performance to the plaintiff/respondent and thus, the impugned decrees for specific performance cannot be allowed to be operated upon. From the pronote it appears that an amount of Rs. 7900/- was advanced on 30-12-1976 and it bears interest at the rate of 1.25% per mensem. Therefore, the plaintiff/ respondent is entitled to interest at the above-mentioned rate w.e.f. 30-12-1976 till 22-2-1984 when the amount was received by the plaintiff/respondent from the appellants/defendants. Plaintiff is also entitled to interest on Rs. 4337.SOP deposited by him in the trial Court after the passing of the decree dated 14-8-1981 at the same rate till the amount was withdrawn by him from the trial Court. Accordingly, the impugned judgments are modified to the extent that the plaintiff/respondents will be entitled to only the interest as directed above. If the interest amount is not paid within one month from today, plaintiff/respondent will be entitled to further interest on the interest amount at the rate of 6% per annum till the amount is paid.