Dismissed

Harbans Singh v. Gurjang Singh and Anr.

Punjab & Haryana HC19 Feb 2010RSA/419/2010

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed the appellant's second appeal. The court upheld the lower courts' decree for specific performance of an agreement to sell land, rejecting the claim that the plaintiffs were not ready due to the property being mortgaged, as the agreement allowed the mortgage to remain.

What did the court decide?

The appellant's appeal against the specific performance decree was dismissed without any order as to costs.

Harbans Singh Vs Gurjang Singh and Anr. — Specific Performance | Punjab & Haryana HC (2010)

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RSA No.419 of 2010 (O&M)

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In the High Court for the States of Punjab and Haryana at Chandigarh.

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RSA No.419 of 2010 (O&M) Decided on February 19,2010.

Harbans Singh

-- Appellant

vs.

Gurjang Singh and another

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--Respondents.

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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN

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Present: Mr. D.S.Brar,Advocate,for the appellant

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Mr. Ravish Bansal,Advocate,for the respondents.

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Rakesh Kumar Jain, J :

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Defendant is in second appeal against judgment and decree of both the Courts below whereby suit filed by the plaintiff for specific performance of an agreement to sell was decreed, directing the defendant to get the sale deed executed and registered within a period of two months, failing which the plaintiff shall be at liberty to get the sale deed executed and registered through Court.

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In brief, facts of the case are that defendant agreed to sell his land measuring 36 kanals i.e. 720/4617 th share out of 230 kanals 17 marlas out of khewat No.48 of village Burj Masta Tehsil Faridkot to the plaintiffs vide agreement to sell executed on 4.2.2006 @ Rs.2,45,000/- per

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RSA No.419 of 2010 (O&M) 2

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acre against a total consideration of Rs. 11,02,500/-. out of which Rs. 3 lacs was received as earnest money and balance sale consideration of Rs.8,02,500/- was to be received on 15.6.2000 at the time of registration of sale deed. The land agreed to be sold was under mortgage with the bank and the defendant had agreed to redeem the same before registration of sale deed. In the alternative, it was agreed that in case, defendant fails to redeem the land after making the payment of loan amount to the bank, the same will be adjusted in the sale consideration. It was also alleged that plaintiffs have always been ready and willing to perform their part of the contract for which they had even served a registered notice to the defendant on 21.6.2006 (Ex.P-3), but the defendant did not come forward to execute the sale deed. Hence, the suit was filed.

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In the written statement, the defendant had taken the stand that the alleged agreement to sell is a forged and fabricated one and was never executed by him . All other averments made in the plaint were denied.

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On the pleadings of the parties, following issues were

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framed:-

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1.Whether the plaintiffs are entitled to the decree of possession by way of specific performance of agreement dated 4.2.2006 ?OPP

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2.Whether the plaintiffs are entitled to the alternative relief for recovery of Rs.11,02,500/- along-with interest as prayed for ? OPP

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3.Whether the suit of plaintiffs is not maintainable in the present form ? OPD

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4.Whether the plaintiffs have no locus standi to file the present suit ? OPD

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5.Whether the plaintiffs have no cause of action to file the present suit ? OPD

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RSA No.419 of 2010 (O&M)

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6.Whether the suit of the plaintiff is not properly valued for the purposes of Court fee ? OPD 7.Relief:

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Both the Courts below, after taking into consideration the evidence on record, have recorded a firm finding of fact that not only the agreement to sell has been duly executed between the parties but also the plaintiffs have always been ready and willing to perform their part of the contract and as such, the suit was decreed as prayed for.

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Before this Court, the defendant has raised only one issue that the plaintiffs were not ready and willing to perform their part of the contract as they had not got redeemed the mortgaged land from the bank. In this regard, learned counsel for the respondents has submitted that in the notice dated 21.6.2006 (Ex.P3), the defendant was requested to execute the sale deed after adjusting amount of land but still he did not come forward to execute the sale deed.

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Learned first appellate Court has also held in para 12 of its judgment as under:-

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“The argument of the learned counsel for the defendant that the plaintiffs have not got redeemed the suit land from the bank by making the payment cannot be treated as a breach of the contract. If the defendant is ready to get the sale deed executed, the mortgage will remain on the suit land and it is for the plaintiffs to pay the amount of loan to the bank and to get redeemed the property either before or after the execution of the sale deed”.

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In view of the above findings recorded by both the Courts below, I do not find any error in the judgment and decree nor there is

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RSA No.419 of 2010 (O&M)

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any substantial question of law either raised or argued before this Court by learned counsel for the appellant. Hence, the present appeal is dismissed, though without any order as to costs.

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February 19,2010 RR

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(Rakesh Kumar Jain) Judge

Harbans Singh v. Gurjang Singh and Anr.

Case brief

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Harbans Singh v. Gurjang Singh and Anr.

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