Dismissed

Banta Singh v. Thana Singh and Ors.

Punjab & Haryana HC29 Apr 2014RSA/2274/2010

Case brief

AI extract

What is this about?

This Court dismissed an appeal filed by Banta Singh against a lower appellate Court decree modifying a trial Court decree. The lower Court awarded refund of earnest money with interest instead of specific performance. This Court held no substantial question of law arose as the lower Court exercised valid discretion and granted a lesser relief than claimed damages.

What did the court decide?

Appeal dismissed with costs of Rs. 2,000 to be deposited with the Mediation and Conciliation Centre.

Banta Singh Vs Thana Singh and Ors. — Specific Performance | Punjab & Haryana HC (2014)

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Date of decision: 29^th April, 2014

Banta Singh

� Appellant

Versus

Thana Singh and others

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� Respondents

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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Whether to be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. Sandeep Khunger, Advocate for the appellant.

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Mr. Vinod Khunger, Advocate for respondent No.1.

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Appellant, who along with proforma respondents No.1 and 2 was defendant before the trial Court, has filed the instant appeal against the judgment and decree of the lower appellate Court vide which decree of the trial Court has been modified by ordering relief of refund of the earnest money along with interest @ 12% per annum from the date of execution of the agreement to sell in question till passing of the decree and @ 6% per annum from the date of decree till realization of the decretal amount, instead of the relief of specific performance of the agreement to sell in question.

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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While modifying the decree of the trial Court, the lower appellate Court, taking into consideration various factors including that there was a money transaction between the parties, held that the intention of the parties was not to sell/purchase the land in dispute by way of the agreement to sell in question. However, keeping in view the fact that execution of the agreement to sell in question was duly proved, the lower appellate Court held that plaintiff:respondent No.1 was entitled to a decree for recovery of �3,70,000 as refund of the earnest money along with interest @ 12% per annum from the date of execution of the agreement to sell in question till the date of passing of the decree and @ 6% per annum from the date of decree till actual realization of the decretal amount.

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It is a matter of record that RSA No.290 of 2010 filed by the plaintiff:respondent against the aforesaid judgment and decree of the lower appellate Court has been dismissed by this Court vide judgment dated 30.03.2010. While upholding the judgment and decree of the lower appellate Court on the appeal filed on behalf of the plaintiff:respondent, who was aggrieved from the modification of the judgment and decree of the trial Court whereby his suit for specific performance of the agreement to sell in question was decreed, this Court observed as under:

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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The defendant:appellant filed the instant appeal submitting that the lower appellate Court, while modifying the judgment and decree of the trial Court, has directed refund of a sum of �3,70,000, which was received by way of earnest money, along with interest as noticed above and the same is against the relief claimed by the plaintiff:respondent as by way of alternative relief the plaintiff had only prayed for recovery of �3,70,000 as refund of the earnest money and �73,000 as compensation and damages for breach of terms of the agreement and had accordingly affixed the Court fee on the said amount and in view of the aforesaid fact, the lower appellate Court erred in granting interest @12% per annum on the refund of earnest money from the date of execution of the agreement till passing of the decree and future interest, as the same was not the prayer of the plaintiff:respondent.

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However, in the grounds of appeal, the appellant has submitted that the following substantial questions of law arise in this appeal for consideration:

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(i) Whether the judgments and decrees passed by both the courts below are perverse?

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(ii) Whether the alternative relief of refund of earnest money could be ordered by the learned District Judge when it is proved that the said agreement was just to secure the repayment of the loan amount?

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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(iii) Whether the learned District Judge could order the refund of earnest money especially when the agreement was proved to be got typed subsequently over the signatures of the appellant and even the attesting witnesses were not present at the time when the alleged agreement was executed?

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(iv) Whether the agreement to sell could be held to be a genuine document wherein total sale consideration was fixed as �4,43,000 and out of which virtually whole of the sale consideration amounting to �3,70,000 was paid at the time of execution of the alleged agreement and the date for execution of the sale deed was fixed after more than a year?

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(v) Whether the alleged agreement to sell was a result of fabrication as the signatures of the appellant were obtained on blank papers and blank entries in the register just with a view to secure the repayment of remaining loan amount?

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A perusal of the substantial questions of law, as framed, would show that in fact there is no substantial question of law, which could be said to be arising in this appeal from the arguments raised on behalf of the appellant.

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It may further be relevant that noticing the aforesaid contention of the appellant, this Court passed the following order on 09.01.2012:

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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A perusal of the aforesaid motion order dated 09.01.2012 would show that this Court directed the appellant to deposit the earnest money of �3,70,000 plus �73,000 along with interest @6% per annum from the date of decree till the date of deposit. It is not in dispute that the aforesaid amount has been deposited by the appellant and the same has also been released in favour of the plaintiff: respondent. Thus, it may be inferred that the grievance of the appellant with regard to grant of interest @6% per annum from the date of decree till its payment has not been accepted by this Court and even the appellant has paid the said amount.

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At this stage, it may further be noticed that grant of interest pendente lite is at the discretion of the Court even if such relief is not claimed specifically and cannot be interfered; and thus, the dispute remains with regard to the interest @12% per annum from the date of execution of the agreement to sell in question i.e. 21.11.2000 till the date of filing of the suit i.e. pre:suit period. Thus, the controversy between the parties remains to the following extent:

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“Whether plaintiff:respondent could have been granted interest @ 12% per annum for the pre:suit period instead of �73,000 claimed as damages?”

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However, the learned counsel for the appellant has placed reliance upon the following paragraph of a judgment of the Karnataka

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High Court in %�&'��()((&&(��(+(,,(��)�-��#�.�� (&,)(*(/$�#�.��.()(/()(0(��1,'(��2)�! 2012 AIR CC 2870:

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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This Court is not inclined to accept the observations made by Karnataka High Court in **�()((&&(��(+(,,(!�3(4�* (supra) as in the aforesaid case, no alternative relief was claimed and the suit was for specific performance of the contract. It may further be added that the Court has the power to mould and grant the necessary relief, and a lesser relief can always be granted.

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It may further be noticed that in the instant case admittedly, the plaintiff:respondent had claimed a sum �73,000, over and above the earnest amount of �3,70,000, as damages; whereas the interest @ 12% per annum as granted by the lower appellate Court for the pre:suit period, if calculated, is much less than the amount of damages as claimed by the plaintiff:respondent, which according to the appellant, should have been granted to him by the lower appellate Court and in fact a lesser relief has been granted to the plaintiff:respondent.

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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At this stage, it may further be noticed that the lower appellate Court has upheld execution of the agreement to sell in question and has modified the decree of the trial Court granting specific performance of the agreement to sell in question by awarding refund of the earnest money along with interest, as noticed above, while exercising its jurisdiction under Section 20 of the Specific Relief Act. It is well settled that such discretion can be interfered only if such discretion is exercised in an arbitrary and whimsical manner. No such argument has been raised before this Court that said exercise of its jurisdiction under Section 20 of the Specific Relief Act is arbitrary or whimsical in any manner. Not only this, it is equally well settled that the Court has inherent power to mould the relief, and a lesser relief can always be granted by the Court.

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It may also be noticed that while dismissing RSA No.290 of 2010 vide judgment dated 30.03.2010, this Court has already observed that there are no reasons to interfere with the judgment of the lower appellate Court and assuming for the sake of arguments even if the relief is granted, as argued by the appellant, the same will amount to passing of two contradictory judgments by this Court in the same suit, which is not permissible.

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No other argument has been raised.

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For the reasons recorded above, this Court is of the opinion that no substantial question of law arises at all in this appeal.

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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Thus, this appeal is dismissed with costs which are assessed at �2,000. Let the costs be deposited with the Mediation and Conciliation Centre of this Court within one month from today.

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Singh Rattan Pal 2014.05.12 14:23 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

Banta Singh v. Thana Singh and Ors.

Case brief

What is this about?

What did the court decide?

Banta Singh v. Thana Singh and Ors.

Case brief

What is this about?

What did the court decide?

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