Hans Raj v. Krishna Rani & Ors.

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. V. Ramswaroop, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 7.9.2002 and 29.8.2007 passed by the learned Courts below vide which suit filed by the plaintiff-appellant for specific performance of agreement dated 19.3.2996 stands dismissed. The substantial question of law raised is that the findings of learned Courts below are outcome of misreading of evidence. The plaintiff claimed that in pursuance to the agreement to sell dated 19.3.1996 the defendant No.1 had agreed to sell booth No. 199 situated in the New Grain Market, Muktsar for total sale consideration of rupees six lac. It was claimed that a sum of Rs. 1.5 lacs was paid as earnest money. It was further agreed that sale deed would be executed on

15.4.1997. It is also the case set up by the plaintiff that prior to the date R.S.A. No. 1043 of 2008 2 fixed for the execution of the sale deed respondent-defendant No.1 filed a suit for permanent injunction wherein the parties had compromised and the plaintiff agreed to pay another sum of Rs. 50,000/- in addition to earnest money already paid. However, the date of execution of sale deed was not changed. The plaintiff further claimed that on 15.4.1997 he appeared before the Sub Registrar for execution of the sale deed but the defendant No.1 did not appear and, thus, it was proved on record that the plaintiff was willing and always willing to perform his part of contract. The suit was contested wherein the execution of the agreement to sell was not disputed. However, stand was taken that it was the plaintiff- appellant who was not willing to perform his part of contract. The learned Courts below on the evidence brought on record have recorded a concurrent finding of fact that the plaintiff / appellant was not willing to perform his part of contract. In order to come to this conclusion reliance has been placed on the notice issued by respondent- defendant No.1 asking the plaintiff to execute the sale deed. The plaintiff- appellant denied having received any such notice. However, in view of the statement made by PW-6 the Court held that the issuance and receipt of notice by the plaintiff-appellant stood proved. The learned counsel for the appellant has not been able to point out as to how the concurrent finding of fact is vitiated or is outcome of misreading of evidence. The contention of the learned counsel for the appellant that in that event he was entitled to receive double of the earnest money cannot be R.S.A. No. 1043 of 2008 3 accepted. Once it is proved on record that breach was on the part of the plaintiff-appellant the earnest money was to be forfeited. No ground is made out to interfere with the findings recorded by the learned Courts below as the findings cannot be said to be outcome of misreading of evidence. The appeal raises no substantial question of law. No merit. Dismissed.

6.2.2009 'sp' ( VINOD K. SHARMA ) JUDGE