R.S.A.No.1973 of 2007 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No.1973 of 2007
Date of decision: 7.7.2009
Maninder Kaur and another
......Appellants
Versus
Pritam Chand
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.S.S.Sandhu, Advocate,
for the appellants.
Mr.Rajinder Goyal, Advocate,
for the respondent.
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SABINA, J.
Plaintiff- Pritam Chand filed a suit for recovery of
Rs.77,000/- (principal amount of Rs.50,000/- and Rs.27,000/- as
interest thereon) against the defendants. The suit of the plaintiff was
partly decreed by the Civil Judge (Sr.Divn.) Kaithal vide judgment
and decree dated 7.8.2004 for recovery of earnest money of
Rs.50,000/-. In appeal the interest was also allowed to the plaintiff
R.S.A.No.1973 of 2007 2
on the principal amount by the District Judge, Kaithal vide judgment
and decree dated 13.2.2007. Hence, the present appeal by the
appellants-defendants No.2 and 3.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. The plaintiff filed this suit on the averments that
defendants had entered into an agreement to sell a house
bearing No.450/12, MCK, for Rs.3,85,000/- vide a written
arguments to sell dated 3.1.1996. The defendants also
received Rs.50,000/- by way of earnest money on
3.1.1996. The target date for execution and registration
of sale deed was 15.7.1996. The plaintiff was always
reading and willing to perform his part of the contract and
he was even present on 15.7.1996 in the office of Sub
Registrar with the balance sale consideration etc., but the
defendants failed to turn up for executing the sale deed.
Later on, it had turned out that one Smt.Gurcharan Kaur
along with her son and daughters had filed a suit for
permanent injunction against the present defendants, on
the allegations that they (plaintiffs of that suit) were
owners in possession of the house in question. Vide
orders dated 15.6.1996 passed in the said civil suit, the
present defendant were restrained from selling the house.
So the plaintiff asserted that it had become impossible for
R.S.A.No.1973 of 2007 3the defendants to complete the sale deed and hence, the
plaintiff had become entitled to refund of his earnest
money of Rs.50,000/- along with interest at the rate of
18% per annum and costs. Hence, this suit.
3. The defendants in their joint written statement
admitted the execution of the agreement for sale and
receipt of Rs.50,000/- as earnest money. However, it was
pleaded that the defendants were always ready and
willing to perform their part of the contract and it was the
plaintiff who had failed to perform his part of the contract
and so has forfeited the earnest money. It was also
pleaded that suit was not maintainable in the present form
and only a suit for specific performance of the contract
was maintainable.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is entitled for recovery of
Rs.77,000/- with interest @ 18% per annum on the
ground alleged in the plaint? OPP
2. Whether the plaintiff has no locus-standi to file
the present suit? OPD
3. Whether the suit of the plaintiff is not
maintainable? OPD
4. Relief. “
R.S.A.No.1973 of 2007 4
After hearing learned counsel for the parties, I am of the
opinion that the present appeal deserves to be dismissed.
In the present case, the suit of the plaintiff for recovery of
earnest money of Rs.50,000/- was decreed. The appellants did not
challenge the said judgment and decree by way of an appeal. In
fact, the plaintiff went in appeal challenging the part of the judgment
and decree, whereby interest was not granted to him on the amount
of earnest money. Thus, the controversy involved in this appeal is as
to whether interest could be awarded on the amount of earnest
money or not. The agreement to sell in question was entered
between the parties on 3.1.1996 and the defendants received
Rs.50,000/- as earnest money. The defendants were unable to
execute the sale deed on account of injunction order passed by the
Civil Court on 15.6.1996 restraining the defendants from executing
the sale deed. The said civil suit was filed by one Gurcharan Kaur
and her children against the present defendants, wherein the order
dated 15.6.1996 was passed. The fact remains that in case the
defendants were not in a position to execute the sale deed, they
should have returned the earnest money to the plaintiff. However,
the defendants kept the money with them for a very long period. In
these circumstances, the finding of the learned District Judge,
Kaithal, while allowing the interest to the plaintiff on the amount of
earnest money, cannot be said to be perverse. The plaintiff has
been held entitled to pendente lite interest @ 9% per annum and
R.S.A.No.1973 of 2007 5
future interest @ 6% per annum on the earnest money. The said
rate of interest cannot be said to be on a higher side.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
July 07, 2009
anita