In a second appeal concerning a suit for specific performance where the relief of refund of earnest money was granted, the High Court dismissed the appeal. Upholding lower courts' decisions, the bench held that the enhancement of interest from 6% to 12% was justified and no error of law was committed.
The second appeal was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No. 2934 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH
RSA No. 2934 of 2010 (O&M) Date of Decision: 26.2.2014
Dalip Singh
.....Appellant
Versus
Dhanbir
.....Respondent
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Rakesh Gupta, Advocate for the appellant.
Mr. B.R.Gupta, Advocate for the respondent.
1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?
RAMESHWAR SINGH MALIK J.
Defendant is in second appeal, against the concurrent findings of facts recorded by both the learned courts below, in a suit for possession by way of specific performance of agreement to sell dated 3.6.1999, whereby only the alternative relief of refund of earnest money, was granted in favour of plaintiff-respondent.
In order to avoid repetition, facts of the case as recorded by the learned District Judge in para 2 and 3 of the impugned judgment,
read as under:-
Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
RSA No. 2934 of 2010 (O&M)
2
“Briefly stated the facts of the case as emanating from the dings of the parties are that defendant Dalip Singh was the owner in possession of 1/5th share in 118 kanals 16 marlas of agricultural land situated within the revenue estate of village Arnoli Tehsil Guhla District Kaithal as detailed in para No.1 of the plaint. His share comes to be 23 kanals 15 marlas of land in this total holding. He had agreed to sell this land to the plaintiff at the rate of Rs. 1,70,000/- per acre. A written agreement was executed between the parties 3.6.1999. As per this agreement the defendant had received a sum of Rs. Two lacs as earnest money at the time of execution of this agreement. The remaining sale consideration was to be paid and received at the time of execution and registration of the sale deed. The date for the same was fixed as 2.6.2000. It was further agreed between the parties that in case the defendant failed to execute the sale deed in terms of the above agreement the plaintiff would be at liberty to get the agreement specifically enforced by filing a civil suit. It was further agreed that in case in the plaintiff failed to perform his part of contract dated 3.6.1999 the agreement was to be treated to have cancelled and earnest money forfeited. The date of execution of the sale deed was extended up to 24.1.2002 as per endorsement having been made on this agreement itself on 27.5.2000 (Ex.P4). The plaintiff had been ready and willing to perform his part of contract but the defendant did not come forward to execute the sale deed. Accordingly having served the defendant with notice dated 22.3.2002 requesting him to get the sale deed
Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
RSA No. 2934 of 2010 (O&M)
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executed, the plaintiff filed the suit for seeking specific performance of the above agreement on 1.6.2002.
The defendant having put up appearance filed his written statement. Therein he denied to have entered into any such agreement. He also denied to have received the alleged earnest money. He further added that he and the plaintiff both were the customers of Commission Agent Tarsem Lal at Patiala and Bhunheri. The defendant was in need of Rs. 30,000/- he approached that Tarsem Lal commission agent to borrow this amount. That Tarsem Lal demanded the security for the payment of aforesaid amount and asked him to execute the agreement to sell in respect of his land as security in favour of the plaintiff. The defendant agreed to do so and he executed that agreement to sell on 3.6.1999. He had received the alleged amount of Rs. 30,000/and repaid the same alongwith interest thereon after harvesting the paddy crop in the month of October 1999. When the defendant demanded back that agreement executed by him as security that Tarsem Lal stated that the same was lost and was not traceable. The defendant believed him in toto. With these averments the defendant pleaded that in fact the plaintiff in connivance with that Tarsem Lal had played a fraud upon him and virtually he had never agreed to sell any land to the plaintiff nor did he execute any such agreement. With these averments the defendant prayed for dismissal of the suit.”
On completion of pleadings of the parties, learned trial court
framed the following issues:-
Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
RSA No. 2934 of 2010 (O&M)
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“1. Whether the plaintiff is entitled to the specific performance of the agreement to sell dated 3.6.1999?OPP.
2. Whether the plaintiff is entitled to the possession of the suit property?OPP
3. Whether the plaintiff has suppressed the true and material fact from the Court and its effect?OPD
4. Whether the agreement in question is not enforceable?OPD
5. Relief.”
With a view to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff was entitled only for alternative relief of refund of earnest money. Accordingly, suit was partly decreed denying the relief of specific performance of the agreement to sell, directing the defendant to pay an amount of `2 lacs to the plaintiff alongwith simple interest @ 6% per annum from the date of filing of the suit. Defendant did not file any appeal. However, plaintiff filed the appeal seeking relief of specific performance. The learned District Judge, Kaithal, vide impugned judgment and decree dated 1.4.2009 partly allowed the appeal of the plaintiff raising rate of interest from 6% to 12% per annum. Modifying the decree to the extent indicated above, appeal was dismissed denying the relief of specific performance. Hence this appeal at the Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
RSA No. 2934 of 2010 (O&M)
5
instance of defendant only against interest part which was enhanced by the learned District Judge from 6% to 12% per annum.
Learned counsel for the appellant submits that learned lower appellate court misdirected itself, while enhancing the rate of interest from 6% to 12% because of which the impugned judgment and decree were not sustainable. He further submits that since the learned District Judge has failed to appreciate the true facts of the case in the correct perspective, the impugned judgment was not sustainable in law. In support of his contention, he places reliance on two judgments in Tejram Vs. Patirambhau, AIR 1997 SC 2702 and Rajni Kumar Vs. Suresh Kumar Malhotra and another, AIR 2003 SC 1322. He prays for setting aside the impugned judgment and decree passed by the learned District Judge, by allowing the present appeal.
Per contra, learned counsel for the respondent vehemently contended that learned District Juge was fully justified on facts as well as in law, while granting interest @ 12% per annum on the amount of earnest money. He further submits that qua the entitlement of the respondent to receive the amount of earnest money, both the courts have recorded concurrent findings of facts. He concluded by submitting that no question of law was involved in the present suit and the same is liable to be dismissed.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, Kumar Amitthis Court is of the considered opinion that in the given fact situation 2014.05.13 13:09 I attest to the accuracy and integrity of this document
RSA No. 2934 of 2010 (O&M)
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of the case, no interference is warranted at the hands of the Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
Initially, appellant even denied the agreement to sell as well as the receipt of earnest money, however, he admitted the same during the course of evidence. In fact, execution of the agreement to sell was duly proved by the plaintiff by leading sufficient and cogent evidence. Further, his suit for specific performance was partly decreed by the learned trial court, granting him only the alternative relief of refund of earnest money alongwith interest at the rate of 6% per annum. Appellant-defendant did not file any appeal against the judgment of learned trial court. However, while partly allowing the appeal of the plaintiff, learned District Judge raised the rate of interest from 6% to 12%. Thus, present appeal is only against difference of rate of interest from 6% to 12%. Having said that, this Court feels no hesitation to conclude that learned courts below have committed no error of law, while passing their respective impugned judgments and decrees and the same deserve to be upheld.
Overall conduct of the parties to the litigation has always been a relevant factor to be considered by the courts. In the present case, overall conduct of the appellant does not entitle him for any relief. He has been changing his stand at different points of time as per his own suitability. It was totally unwarranted on the part of the appellant. Under the totality of facts and circumstances of the case, it cannot be said that learned District Judge exceeded his jurisdiction, Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
RSA No. 2934 of 2010 (O&M)
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while enhancing the rate of interest from 6% to 12% per annum and the impugned judgment deserves to be upheld, for this reason also.
Before arriving at a judicious conclusion, learned District Judge has recorded cogent findings in para 11 of the impugned judgment and the same read as under:-
“As far as the granting of interest by the lower court on the alleged amount of earnest money to the tune of Rs.two lacs which was admittedly received by the defendant from the plaintiff at the time of execution of the agreement is concerned, the same is certainly on lower side. Once the suit, instead of specific performance of the agreement, is to be decreed for recovery of earnest money certainly the plaintiff deserves to be adequately compensated. For that purpose the rate of interest as awarded by the lower court is hereby enhanced to 12 per cent per annum from 6 per cent per annum as awarded by the lower court and from the date of execution of the agreement of sale i.e. 3.6.1999 till the realisation of the whole of this amount instead of from the date of institution of the suit as ordered by the lower court.”
So far as the judgments relied upon by the learned counsel for the appellant are concerned, there is no dispute about the law laid down therein but on careful perusal thereof, the same have not been found to be of any help to the appellant, being distinguishable on Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
8
RSA No. 2934 of 2010 (O&M)
facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
During the course of hearing, learned counsel for the appellant failed to point out any patent illegality or perversity apparent on the record of the case, in either of the impugned judgments passed by the learned courts below. He also failed to put into service any substantiate argument, so as to convince this Court to take a different view than the one taken by the learned trial court as well as learned lower appellate court. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC. In this view of the matter, it is unhesitatingly held that both the learned courts below committed no error of law, while the impugned judgments and the same deserve to be upheld.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out. Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
RSA No. 2934 of 2010 (O&M)
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Resultantly, the instant second appeal stands dismissed,
however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE
26.2.2014 AK Sharma
Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document
2 issues framed by the court
Whether the High Court could interfere with the enhancement of interest rate from 6% to 12% under Section 100 CPC.
Whether the lower courts committed an error of law in enhancing the interest rate awarded for refund of earnest money.
Colour shows how this judgement treated each authority
Tejram Vs. PatirambhauReferred¶42
Tejram Vs. Patirambhau, AIR 1997 SC 2702 · Who else cites this
Rajni Kumar Vs. Suresh Kumar Malhotra and anotherReferred¶42
Rajni Kumar Vs. Suresh Kumar Malhotra and another, AIR 2003 SC 1322 · Who else cites this
Padmausundra Rao and another Vs. State of Tamil Nadu and othersDistinguished¶57
Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533 · Who else cites this
1 provisions across 1 enactments
Dalip Singh
Dhanbir
Rameshwar Singh Malik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
