SWARAN SINGH Vs. BALWANT SINGH

JUDGEMENT

(1.) THIS order shall dispose of two appeals namely, RSA Nos. 1556 and 1557 of 2004 as common questions of law and facts have been raised. Facts are referred from R.S.A. No. 1556 of 2004. Both the appeals have been filed by the defendant-appellant challenging the judgment and decree dated 19.1.2004 passed by the learned Additional District Judge, Kapurthala, partly accepting the appeal of the plaintiff-respondent. The defendant-appellant has been directed to refund earnest money amounting to Rs. 1,75,000/- with interest at the rate of 12 per cent per annum from the date of execution of the agreement when Rs. 1,50,000/- was paid, and with effect from 13.5.1999 on the amount of Rs. 1,75,000/- when further sum of Rs. 25,000/- was paid till the date of the decree. Future interest at the rate of 6 per cent per annum has also been awarded and the suit of the plaintiff-respondent for possession by way of specific performance has been dismissed.

(2.) BOTH the Courts below have found that the agreement to sell Exhibit P-1 dated 12.5.1998 is void as the defendant-appellant belongs to Scheduled Caste and was permanently barred by Section 7 of the Nazool Lands (Transfer) Rules, 1956, as amended in 1991 (hereinafter referred to as 'the Rules') from alienating the Nazool Land as such land could only be inherited. It has further been found that under Section 65 of the Indian Contract Act, 1872 (for brevity, 'the Contract Act') the contract being void or having been discovered to be void, could not be specifically performed by issuing mandatory injunction. The lower Appellate Court has further found that the plaintiff- respondent has always been ready and willing to perform his part of the contract. It is appropriate to mention that the trial Court has dismissed the suit in toto but the lower Appellate Court came to the conclusion that the plaintiff-respondent was entitled to refund of the earnest money paid along with interest. The view of the learned Additional District Judge in this respect reads as under :

(3.) I have thoughtfully considered the submissions made by the learned counsel and am of the view that this appeal is liable to be dismissed because it has been concurrently found by both the Courts below that there is valid execution of the agreement Ex.P1 on 12.5.1998 between the parties. It has also been found by both the Courts below that the total sale consideration fixed in the agreement was Rs. 2 lacs and an amount of Rs. 1,50,000/- was paid as earnest money to the defendant-appellant on 12.5.1998. Lateron the date of execution of the sale-deed was extended and on 13.5.1999 another sum of Rs. 25,000/- was paid as is evident from the endorsement Ex.P2 of the instant date which was executed by the defendant-appellant. The date of execution of the sale-deed was extended to 21.5.2000.