Dismissed

Birbal v. Dharam Pal and Ors.

Punjab & Haryana HC6 May 2014RSA/4056/2009

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against the first appellate court's refusal to grant specific performance of an agreement to sell. The court held that the lower courts did not act arbitrarily in denying relief, noting procedural lapses like improper court fee affixation, and found no ground to interfere regarding the refusal to award interest on the refund.

What did the court decide?

The appeal was dismissed; no relief was granted beyond the maintenance of the lower appellate court's decree.

Birbal Vs Dharam Pal and Ors. — Specific Performance | Punjab & Haryana HC (2014)

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RSA No.4056 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.4056 of 2009 (O&M) Date of decision:06.05.2014

Birbal

....Appellant

Versus

Dharam Pal and others

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....Respondents

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CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Whether reporters of local newspapers may be allowed to see judgment?

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To be referred to reporters or not?

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Whether the judgment should be reported in the Digest?

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Present:- Mr. Ashish Gupta, Advocate for Mr. Vikram Singh, Advocate for the appellant.

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RAKESH KUMAR GARG, J (ORAL)

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The appellant filed the instant suit seeking the relief as

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under:-

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“The plaintiff filed a suit for possession to effect that on 24.1.1991, defendant No.1 entered into an agreement to sell suit land measuring 8 bigha 4 biswas bearing khasra No.159/1(1-14),159/3(6-10) khatoni No.476 khewat No.166/136 min vide jamabandi 1991-92 situated at village Tiwala, for a consideration of Rs.1,95,000/- and for delivering the possession of land and getting the registry in favour of the plaintiff and setting aside the judgment

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Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.4056 of 2009 (O&M)

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and decree of exchange dated 16.1.1993 vide which exchanged property by defendant No.1 with defendants No.2 and 3 is illegal and against the facts and not binding upon the rights of plaintiff because it is mere paper proceedings just to defeat the right of the plaintiff and defendant No.2 and 3 have no concerned with the suit land.”

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The suit was dismissed with costs by the trial Court vide impugned judgment and decree dated 11.06.2003. However, appeal was accepted by the First Appellate Court vide impugned judgment and decree dated 31.3.2009 to the extent that respondent No.1 was directed to return the double amount of earnest money i.e. ` 50,000/within a period of two months from the date of order.

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Still not satisfied, appellant has filed the instant appeal challenging the judgment and decree of the lower Appellate Court to the extent of denial of relief of specific performance of agreement to sell in question alleging that following substantial questions of law arise in this appeal:-

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“a) Whether the judgments of Courts below are illegal, void and without jurisdiction?

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b) Whether the findings of the Courts below are suffering from in apparent perversity as the fact of it being contrary to law and facts on record?

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c) Whether the impugned judgment and decree do not

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Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.4056 of 2009 (O&M)

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suffer from an apparent, illegality and perversity because of ignoring the material piece of evidence have been direct impact on decision of the case?

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d) Whether the learned Court below has totally ignored the fact while decreed the suit with regard to double amount of earnest money whereas as per oral and documentary evidence, the agreement Ex.P1 dated 24.1.1991 is not disputed and the question of readiness and willingness is on the file and same has been proved in the marking and presence before the Sub Registrar on 30.9.1991 inspite that the Court was justified to return the double amount of earnest money.”

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Noticing the contention raised on behalf of the appellant, this Court passed the following order on 16.12.2010:-

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“Learned counsel for appellant inter alia contends that agreement to sell stood admitted and lower Appellate Court has also recorded finding that appellant was ready and willing to perform his part of the contract. It is also contended that defendant committed breach of contract as he did not clear loan of the bank taken against mortgage of the suit land, before the date stipulated for execution of the sale deed. It is also contended that lower Appellate Court even while granting relief of recovery of double earnest money did not grant any

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Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.4056 of 2009 (O&M)

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interest thereon.

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Notice of motion for 17.03.2011.”

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On the basis of the argument as raised before the motion Bench, learned counsel for the appellant has vehemently argued that relief of possession by way of specific performance of agreement to sell has been denied to the appellant without any rhyme or reason as agreement to sell in question is not in dispute and a finding has been recorded by the Courts below that appellant was ready and willing to perform his part of contract and in view of the aforesaid, he was entitled to the relief as claimed in this appeal.

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However, there is nothing on record to show that discretion under Section 20 of the Specific Relief Act has been exercised by the Courts below in an arbitrary or whimsical manner. In fact, perusal of the impugned order would show that while granting relief of alternative recovery, First Appellate Court after considering the facts and circumstances of the case found that appellant has even failed to affix the ad valorem Court fee which is mandatory but still granted him an opportunity to affix the Court fee and thereafter, granted a decree in his favour for an alternative relief. Thus, it could not be said that the said order was either whimsical or arbitrary.

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Thus, no fault can be found with the judgments and decrees of the Courts below whereby relief of specific performance has not been granted to the appellant.

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Faced with this situation, learned counsel for the

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Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.4056 of 2009 (O&M)

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appellant has submitted that he was entitled to interest on the amount of refund as granted by the lower Appellate Court and lower Appellate Court has erred at law while not granting the interest on the said amount.

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The contention as raised with regard to non payment of interest is also liable to be rejected as it could not be disputed before this Court that grant of interest is the discretion of the Court. Moreover, keeping in view the facts and circumstances of the case, appellant has been granted the relief of recovery of double the amount of earnest money and in view thereof, this Court is not inclined to interfere in the impugned judgment and decree of the First Appellate Court.

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Thus, no substantial questions of law, as raised, arise in this appeal.

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Dismissed.

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May 06, 2014 savita

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(RAKESH KUMAR GARG) JUDGE

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Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh

Birbal v. Dharam Pal and Ors.

Case brief

What is this about?

What did the court decide?

Birbal v. Dharam Pal and Ors.

Case brief

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