Harcharan Singh v. Sohan Singh

Mr. Vivek Goyal, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) CM No.12008-C of 2009 For the reasons mentioned in the application, delay of 45 days in refiling the appeal is condoned. CM stands disposed of. RSA No.3950 of 2009(O&M) This is defendant’s second appeal challenging the judgment and decree of the Lower Appellate Court whereby a money decree for recovery of earnest money along with damages for a sum of Rs.5,20,000/- in favour of the plaintiff-respondent and against the appellant by modifying the decree of the trial Court passed in favour of the plaintiff-respondent for possession by way of specific performance of the agreement to sell in question. As per pleadings, the plaintiff-respondent filed suit for specific performance of the agreement to sell dated 26.5.2001 alleging therein that the appellant agreed to sell his land measuring 16 kanals at the rate of Rs.2 lakhs per acre and received a sum of Rs.3,25,000/- towards earnest money and executed an agreement to sell in question in favour of the RSA No.3950 of 2009(O&M) 2 plaintiff in the presence of the attesting witnesses and the date for the execution and registration of the sale deed was stipulated as 25.11.2001. The appellant agreed that he would get the land in question redeemed from the Bank before the execution of the sale deed. According to the plaintiff-respondent, he was ready and willing to perform his part of the agreement. However, the appellant backed out from the contract and did not execute the sale deed as agreed. Hence, he was entitled to seek possession by way of specific performance of the agreement to sell in question or in the alternative for recovery of Rs.5,20,000 (Rs. 3,25,000/- as earnest money and Rs.1,95,000/- as damages). The aforesaid suit was contested by the appellant by filing written statement denying therein that he never agreed to sell the suit land in favour of the plaintiff-respondent. The execution of the agreement to sell and receipt of earnest money was denied. It was further contended that the alleged agreement was forged and fabricated document and was without consideration. It was further contended that the land in question was already under mortgage with the bank and, therefore, it was not possible for the plaintiff to get the agreement to sell in question executed from the defendant-appellant and the dismissal of the suit was prayed for. After hearing learned counsel for the parties and appreciating the evidence on record, the trial Court held that the agreement to sell in question was duly executed by the appellant and he also received a sum of Rs.3,25,000/- as earnest money. It was further found by the trial Court that the plaintiff-respondent always remained ready and willing and is still ready and willing to perform his part of the contract. Consequently, issues No.4 and 5 were also decided against the appellant and vide judgment and decree dated 4.6.2008, the suit of the plaintiff-respondent was decreed for possession by way of specific performance of the agreement to sell in RSA No.3950 of 2009(O&M) 3 question upon depositing the balance sale consideration by the plaintiff- respondent within one month. The appellant was further directed to execute and get registered the sale deed in favour of the plaintiff- respondent within a period of one month after getting the land redeemed from the Bank. In appeal, the appellant assailed the findings recorded by the trial Court on different issues by contending that the same were not based upon the facts of the case or the evidence on the file and were therefore, liable to be set aside. After appreciating the rival contentions, the Lower Appellate Court affirmed the findings of the trial Court on the issue of execution of the agreement to sell dated 26.5.2001 as well as the payment of earnest money amounting to Rs.3,25,000/- thereunder. However, while granting the relief, the Lower Appellate Court modified the decree of the trial Court and held that as per the conditions of the agreement to sell, the plaintiff- respondent was entitled to receive double the amount of earnest money i.e. Rs.6,50,000/- in case the sale deed was not executed in his favour. There is no dispute that the condition of double, the payment of the earnest money was incorporated in the agreement to sell in question, which stands duly proved. However, keeping in view the fact that the plaintiff-respondent has already restricted his claim to the alternative relief of Rs.5,20,000/-, the remaining relief was deemed to have been curtailed and consequently, the appeal filed by the plaintiff-respondent was partly accepted by the Lower Appellate Court and the judgment and decree of the trial Court was modified and a money decree for the recovery of Rs.5,20,000/- along with interest at the rate of 6% per annum with effect from the date of execution of the agreement to sell till its realization was passed. It was further held that in case the plaintiff-respondent has already deposited the balance sale RSA No.3950 of 2009(O&M) 4 consideration amount, he was entitled to withdraw the same. Still not satisfied, the defendant-appellant has filed the instant appeal claiming that he is not liable to pay any damages to the plaintiff- respondent on account of non execution of the sale deed in pursuance of the agreement to sell in question and it will be too harsh to pay a sum of Rs.1,95,000/- as damages/penalty in terms of the conditions of the contract. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial question of law arises in this appeal: “Whether the learned Appellate Court was right in law passing a decree for recovery of earnest amount of Rs.3,25,000/- and a further sum of Rs.1,95,000/- against the appellant, as damages for not performing his part of contract?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. Both the Courts below on appreciation of evidence have recorded a finding of fact with regard to the execution of the agreement to sell and receipt of earnest money of Rs.3,25,000/-. In fact, during the course of arguments, no fault could be found by the learned counsel for the appellant in the aforesaid findings recorded by the Courts below. Thus, the agreement Ex.P-1 stands duly proved. It is again not in dispute that as per the terms and conditions of the aforesaid agreement in question, it was agreed between the parties that if the vendor backed out from the agreement and refused to execute the sale deed in favour of the vendee, the vendee shall be entitled to receive double the amount of earnest money i.e. Rs.6,50,000/-. RSA No.3950 of 2009(O&M) 5 In view of the aforesaid condition in the agreement which stands duly proved, it does not lie in the mouth of the appellant that the condition of paying the amount of Rs.1,95,000/- would be too harsh upon him. In fact, the plaintiff-respondent had already restricted his claim to the extent of Rs.5,20,000 (i.e. Rs.3,25,000 as earnest money and Rs.1,95,000/- as damages), instead of sum of Rs.6,50,000/- (i.e. Rs.3,25,000 as earnest money and Rs.3,25,000/ - as damages as per the terms and conditions). Moreover, there is nothing on record to prove the contention of the appellant that the money decree passed by the Lower Appellate Court is very harsh and against the law. Even in the pleadings, the appellant has not pleaded any hardship to him on this account and the simple plea of denial of the execution of the agreement to sell in question has been taken up. In view of the aforesaid finding, I find no merit in this appeal. No question of law, much less substantial question of law, arises in this appeal. Dismissed. January 21, 2010 (RAKESH KUMAR GARG) JUDGE