RAJ SINGH Vs. INDER JEET

JUDGEMENT

(1.) This defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging the judgment and decree dated 23- 5-2001 passed by the Addl. District Judge, Rohtak who has reversed the findings of the Civil Judge (Jr. Division) Rohtak recorded in his judgment and order dated 7-12-1999. The Civil Judge has recorded the finding that there was an agreement to sell executed by the defendant-appellant on 7-6-1995 and the plaintiff-respondent was always ready and willing to perform that contract. However, the suit of the plaintiff-respondent was decreed to the extent of awarding of alternative relief by directing the defendant-appellant to refund the earnest amount of Rs.1,90,000/- received by him from the plaintiff-respondent in the form of cash as well as draft.The basic reason followed by the learned Civil Judge for declining the specific performance of the contract by execution of the sale deed was that the plaintiff-respondent did not verify the title of the suit land as it was mortgaged with Rohtak Primary Co-operative Bank. The other reason was that the plaintiff-respondent has himself prayed for the refund of the earnest money as an alternative relief. However, the Id. Appellate Court by placing reliance on a judgment of this Court in the case of Mohinder Singh v. Guljit Singh, 2000 (126) Pun LR 115 has concluded that once the lawful agreement is proved then the requirement of equity Would be to enforce such an agreement instead of granting alternative relief of damages especially when the plaintiff is shown to be ready and willing to perform his part of the contract. The prayer for alternative relief could not be construed as a waiver or abandonment of the relief in the main suit. Finding that facts and circumstances of the case in hand are similar to that of Mohinder Singh's case (supra), the lower Appellate Court decreed the suit of the plaintiff-respondent in his favour by passing a decree that he is entitled to specific performance of agreement dated 7-6-1975. A direction has been issued to the defendant-appellant to get the sale deed registered by getting the land redeemed, if any, on the receipt of balance amount of sale consideration of Rs.49,500/- which was to be paid by the plaintiff-respondent within 60 days from that judgment i.e. 23-5-2001. It was further observed that if the defendant-appellant fails to get the sale deed executed after redeeming the suit land from mortgage the plaintiff-respondent would be entitled to get the sale deed executed through the Court after getting the land redeemed. He was also entitled to consequential relief of recovery of mortgage amount from the defendant-appellant with future interest @ 9% p.a. from the date of decree till realisation. Accordingly the finding recorded by the trial Court granting the alternative relief of damages was reversed.

(2.) Shri Narinder Hooda, learned counsel for the defendant-appellant has argued that the only question which arise for the consideration of this Court is whether the discretion exercised by the trial court in granting alternative relief deserves to be interfered with or not.

(3.) After hearing the learned counsel. I am of the considered view that this appeal deserves to be dismissed as there are concurrent findings of facts on the issue that an agreement to sell was validly executed on 7-6-1995 for valuable consideration. It has also been proved under issue No.3 that the plaintiff-respondent had been ready and willing to perform his part of the contract and there was failure on the part of the defendant appellant who did not appear before the Sub-Registrar where the sale deed was to be executed. The finding in this regard has been recorded under issue No.1 also. Whenever there is proof of execution of agreement to sell and readiness and willingness on the part of the plaintiff-respondent is proved then unless the enforcement of specific performance result into unfairness the specific performance has to be ordered. In this regard, reliance may be placed on a judgment of the Supreme Court in the case of Surya Narain Upadhyaya v. Ram Roop Pandey, 1995 Supp (4) SCC 542 : (AIR 1994 SC 105) and also on the observations made in Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhaai Haribhai Patei, (2001) 5 SCC 101 : (AIR 2001 SC 1462). It is further appropriate to mention that non disclosure of the mortgage of land is a circumstance which would weigh against the defendant-appellant rather than against the plaintiff-respondent. Therefore, exercise of discretion by the Id. lower Appellate Court deserves to be approved and specific performance of the agreement has to be ordered. Therefore, I am of the view that no substantive question of law in fact arises for the consideration of this Court because an omission to mention lien on the property would be an irrelevant consideration and inequitable benefit to the defendant-appellant.