In this regular second appeal, the High Court dismissed the challenge against the lower courts' decree. The lower courts held the appellant liable to refund earnest money received under an agreement to sell, rejecting the claim for specific performance due to conflicting evidence and prior litigation findings.
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.490 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No.490 of 2013 (O&M) Date of decision: 01.12.2014
Mukhtiar Kaur
... Appellant
Vs.
Surjit Kaur and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:Mr. D.S.Gill, Advocate for the appellant.
AMIT RAWAL J.
The present regular second appeal is at the instance of appellant/defendant No.1 against the judgment and decree dated 09.03.2011 whereby decree of specific performance of agreement to sell dated 15.07.1999 was passed in favour of the respondent/plaintiff and against the defendants.
Plaintiff-respondent instituted the suit in the year 2003 and sought the relief of specific performance of the agreement to sell dated 15.07.1999 on the premise that appellant/defendant No.1 had entered into an agreement to sell, aforementioned, of land measuring 36 kanals 4 marlas being ½ share out of land measuring 72 kanals 8 marlas for a total sale consideration of 5 lacs out of which the defendants no.1 and 2 had received 50,000/- as earnest money on 18.05.1999 and further amount of ` 4,30,000/- through their power of attorney-defendant No.3. As per the agreement, the sale deed was to
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be executed in favour of plaintiff on 15.07.1999. On that date, a sum of ` 4,30,000/- was received by defendants No.1 and 2 through defendant No.3, their power of attorney but after receiving the earnest money, extended the date for execution of sale deed to 19.05.2000. In the suit, plaintiff-respondent also challenged the sale deed dated 2.5.2000 executed by defendant No.1 in favour of defendants No.4 to 6 being illegal, null and void and without consideration. The aforementioned sale deed was in respect of the land measuring 18 kanals 2 marlas being ½ share of defendant No.2. Readiness and willingness on the part of plaintiff/respondent was also specifically pleaded.
Defendants No.2, 3 and 7 despite service did not put in appearance and they were proceeded against ex-parte whereas defendants No.1, 4 to 6 put in appearance and filed their written statement. Defendant No.1 in her written statement stated that neither she had executed any agreement to sell in favour of plaintiff on 18.05.1999 nor any further earnest money was received. It was further submitted that on 15.7.1999, no extension in the date for execution of sale deed was made through her power of attorney. Defendants No.4 to 6, in their written statement, being subsequent vendee, had taken the plea of bonafide purchaser for a valuable consideration on the basis of registered sale deed dated 2.5.2000 and sought the protection under clause (b) of Section 19 of the Specific Relief Act,1963.
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The trial Court on the basis of oral and documentary evidence concluded that defendants No.1 and 2 are real sisters and they executed agreement to sell Ex.P2, on 18.5.1999 in favour of plaintiff to sell their respective shares and at that relevant time received a sum of 50,000/- as earnest money and subsequently, through their power of attorney Pritam Singh, PW-9, received another sum of 4,30,000/- and executed another agreement Ex.PW9/B on 15.7.1999 whereby the date for execution of agreement to sell was extended up to 19.5.2000.
The argument of the appellant-defendants that since, they have been grown up children, it was highly improbable nor any occasion accrued for them to appoint Pritam Singh as Attorney, did not find favour, with the trial Court on the premise that nothing had come on record to show that Pritam Singh was not an honest and loyal person of defendants No.1 and 2. Rather Pritam Singh admitted that he after having received an amount of 4,30,000/- from the plaintiff on 15.7.1999, had handed over to both the defendants i.e. defendants No.1 and 2. The trial Court also found that sale deed dated 2.5.2000 executed by defendant No.2 qua her share in favour of defendants No.4 to 6 also recited that on 18.5.1999 and a sum of 25,000/- was received.
It is not out of place to mention here that 18.5.1999 was
the date when the agreement to sell Ex.P2 was executed. With regard to contention of the defendants that as to whether plaintiff-
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respondent would be entitled to the specific performance of agreement to sell or not, the trial Court noted that the brother of husband of the plaintiff and sons of brother of husband of plaintiff had filed a suit for declaration and permanent injunction against defendants No.1 and 2 i.e. Mukhtiar Kaur daughter of Daan Singh, wife of Balbir Singh and Gurdev Kaur daughter of Daan Singh wife of Puran Singh.In that suit, defendants No.4 to 6 i.e. respondents No.4 to 6 in the present case were also arrayed as defendants.They raised the plea that they are bonafide purchasers of the suit land for a valuable consideration in respect of sale deed executed by defendant No.1-Mukhtiar Kaur and the trial Court found that respondent-plaintiff, herein, did not contest the plea. The said suit was ultimately decided by judgment dated 27.11.2003 whereby defendants No.4 to 6 i.e. respondents No.4 to 7 herein were held to be bonafide purchasers for consideration and were found to be in possession of the land having been purchased vide sale deed from defendant No.1-Mukhtiar Kaur and the said finding was never challenged by the present plaintiff, so, therefore, held that respondent-plaintiff was not entitled for the relief of specific performance of agreement to sell dated 8.5.1999 and accordingly, granted alternative relief for the recovery of ` 2,40,000/-along with interest @ 9% per annum from 15.7.1999 till the filing of the present suit against defendant No.1. Plaintiff has also been held entitled to recover the pendente-lite interest at the rate of 6% per annum till the realization
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of the entire amount from defendant No.1.
The said finding of the trial Court was assailed by plaintiff as well as defendant No.1-Mukhtiar Kaur by filing two separate appeals and the lower Appellate Court upheld the judgment and decree dated 09.03.2011 of the trial Court and dismissed both the appeals.
Mukhtiar Kaur-defendant No.1 instituted the present regular second appeal challenging the impugned judgment and decree whereby she has been directed to refund ` 2,40,000/- along with interest as ordered by the trial Court.
Learned counsel appearing on behalf of the appellantdefendant No.1 submitted that both the Courts below did not take into consideration that appellant had denied the execution of 'Power of Attorney' in favour of Pritam Singh on account of the fact that there are other family members including her husband and sons to manage and control the family affairs, therefore, there was no reason for her to give 'Power of Attorney' to Pritam Singh. He further submitted that both the Courts below failed to consider the fact that in an earlier suit, respondent was also party to that suit and had never asserted any right under the agreement to sell and therefore, the present regular second appeal deserved to be allowed as it involves substantial questions of law to be adjudicated by this Court.
I have heard learned counsel for the appellant-defendant
No.1-Mukhtiar Kaur.
I do not find force in the submissions made by learned
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counsel for the appellant and findings of the Courts below are based upon the appreciation of the evidence and material on record and finding of fact has been established. It is a matter of record that Gurdev Kaur had already executed a sale deed qua her share in favour of the plaintiff. Both the Courts below found that since the plaintiff-respondent did not contest the earlier suit instituted by defendant No.1 in favour of defendants No.4 to 6 i.e. respondents No.4 to 6 (herein) and receipt of earnest money had been admitted by Mukhtiar Kaur while executing a sale deed in favour of defendants No.4 to 6 and subsequent earnest money has also been accepted, therefore, trial Court rightly ordered the refund of earnest money i.e. a sum of ` 2,40,000/- along with interest @ 9% per annum from 15.7.1999 till the filing of the present suit and future interest at the rate of 6% per annum.
No fault can be found with the findings of fact rendered by
both the Courts below.
No substantial question of law arise for determination of
this Court.
Accordingly, the appeal is dismissed.
(AMIT RAWAL) JUDGE
December 01, 2014 savita
SAVITA DEVI KADIAN 2014.12.15 11:48 I attest to the accuracy and authenticity of this document High Court Chandigarh
Mukhtiar Kaur
Surjit Kaur and others
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
