VIJAY KUMAR Vs. ASHOK KUMAR LAROIA AND OTHERS

JUDGEMENT

(1.) This order of mine shall dispose of two Regular Second Appeals bearing No.2803 and 4279 of 2013. RSA No.2803 of 2013 was filed at the instance of the plaintiff and RSA No.4279 of 2013 by the defendants as the trial Court decreed the suit of the plaintiff seeking specific performance of the agreement to sell dated 18.12.2003 in respect of plot No.1361, Sector 26, Panchkula agreed to be sold for a total sale consideration of Rs.6,09,000/- + Rs.91,000/- = Rs.7,00,000/- against the payment of Rs.91,000/-, whereas, Rs.21,000/- has been paid in cash and Rs.70,000/- paid by cheque no.123576 dated 17.12.2003. However in appeal, the Lower Appellate Court reversed the finding against the plaintiff qua exercise of discretion under Section 20 of the Specific Relief Act, 1963 (hereinafter referred to as "1963 Act") and converted the suit for refund of earnest money along with interest @ 12% from the date of filing of the suit till its realization. Mr.R.K.Gupta, learned counsel appearing on behalf of plaintiff - Vijay Kumar submits that the stipulated date for execution and registration of the sale deed was fixed 15.02.2004. The Lower Appellate Court has gone into the arena of conjectures and surmises by holding that the agreement to sell was not signed by plaintiff - Vijay Kumar, as he has signed on behalf of Govind Mohan. The defence taken by the defendants was that they got impression that Govind Mohan was Vijay Kumar. No doubt, on the stipulated date, as per the terms and conditions of the agreement to sell, as well as the provisions of HUDA bye-laws, the vendor was required to obtain NOC/submit an application for permission to transfer the plot by depositing the transfer fees. Since he did not deposit the same by the aforementioned date but applied on 16.04.2004 by depositing a sum of Rs.5,000/-, vide Ex.P9 and the application is dated 19.04.2004.

(2.) Accordingly, the parties had agreed to execute and register the sale deed on 23.08.2004, but the defendants did not appear on the date fixed before the office of Sub Registrar Panchkula despite the fact that plaintiff had prepared a demand draft dated 23.08.2004 of balance amount of Rs.6,09,000/-, preceding to the stipulated date for execution and registration of the sale deed. The legal notice dated 03.08.2004 was sent. If at all, the defendants had any grievance with regard to the identity of Vijay Kumar, they could have easily rebutted in evidence by filing a written statement. The defence taken in the written statement was an after thought.

(3.) In support of his aforementioned contention, he has relied upon the ratio decidendi culled out in judgment rendered by Hon'ble the Supreme Court in Alka Bose vs. Parmatma Devi and others, 2009 1 RCR(Civ) 450 and the judgment of this Court rendered in RFA No.1504 of 1977 titled as Gian Singh and others vs. Smt. Devinderjit Kaur.