MEHAR SINGH Vs. RAM KISHAN (DECEASED) THROUGH LRS

JUDGEMENT

(1.) This is the defendant's second appeal aggrieved by the judgment passed by the Court below. The trial Court partly decreed the suit and allowed recovery of the earnest amount with 10% interest. The first Appellate Court modified the judgment and allowed specific performance of the agreement.

(2.) Defendant Mehar Singh entered into an agreement to sell land measuring 5 kanals 10 marlas to the plaintiff vide agreement dated 20.8.2005 comprised in khasra no. 1029 (1-12), 1031(1-11), 1033 (2-16), khatoni No. 305, khasra No. 1032 (1-2) khatoni No. 310 Rect. No. 1030/1 (0-9) shown in jamabandi for the year 2001-2002 situated in the revenue estate of village Ahirka, district Jind @ Rs. 6,98,000.00 per acre. The total consideration agreed was Rs. 4,80,000.00. The earnest amount of Rs. 2,40,000.00 was paid at the time of agreement. The agreement was scribed by Ajit Singh Saini, a document writer. A receipt below the agreement was signed in token of having received the earnest amount. It was agreed that the sale deed was to be executed on or before 20.9.2005. The plaintiff was given a right to get the sale deed executed through Court. On failure to get the sale deed registered by the plaintiff on or before the date fixed, the earnest amount was to be forfeited. The plaintiff was given liberty to get the sale deed executed in his own name or in the name of any other person and the defendant would have no objection. The sale deed was to be executed with all rights in the common land, right to water and right of way. The plaintiff claimed that the date of agreement was extended to 21.9.2005 at the request of the defendant. On the next day, he and his son reached the office of Sub Registrar along with the defendant and stamp papers worth Rs. 38,400.00 were purchased in the name of Veer Bhan for executing the sale deed for total consideration of Rs. 4,80,000.00. The defendant along with the plaintiff and his son and the witnesses went to the document writer and the sale deed was being scribed and the first page had been written on a stamp paper worth Rs. 25,000.00 when all of a sudden, the defendant refused to execute the sale deed and got the time extended till 21.10.2005 on the same terms and conditions. The plaintiff took the balance money and along with the witnesses visited the office of the Sub Registrar on 21.10.2005 but the defendant did not turn up. He filed an application before the Sub Registrar and got his presence marked to show his readiness and willingness. The plaintiff waited for the defendant the whole day but the defendant did not come. It was pleaded that Sub Registrar returned the application in original to the plaintiff as there was no provision to get the presence marked. The plaintiff had taken the plea that he was ready and willing to perform his part of the agreement and since the stamp papers had been purchased and to avoid the documents being wasted he returned them to the competent authority and Rs. 3840.00 (being 10%) was deducted and his plea was that it was liable to be adjusted towards the sale consideration. The plaintiff sent a legal notice. The defendant did not send his reply nor executed the sale deed. It was also pleaded that the plaintiff was suffering loss of Rs. 2400.00 per month and he could have earned interest on the amount and the defendant was liable to pay Rs. 4800.00 per month besides other damages.

(3.) The defendant took preliminary objections that the suit was not maintainable and material facts had been suppressed and the suit was filed only to cause harassment. The execution of the agreement was denied. It was pleaded that no sale consideration was fixed between the parties and therefore question of receiving any amount or earnest money did not arise. The defendant also denied that he had signed or thumb marked the agreement. It was pleaded that the agreement was a result of fraud and forgery. It was pleaded that in fact the defendant had entered into an agreement for sale in respect of this land with Veer Bhan son of the plaintiff on 19.2.2005 and the last date for execution of the sale deed was fixed as 21.8.2005 and on the date of execution of the alleged agreement, the agreement with Veer Bhan was subsisting and there was no reason that he would enter into another agreement. The defendant claimed that Veer Bhan did not have sufficient funds for execution and registration of the sale deed and the earnest money was forfeited. His plea was that the plaintiff in collusion with his son had forged the agreement. It was admitted that the agreement referred to by the plaintiff had the same set of attesting witnesses and there was a doubt regarding the legality of the agreement. It was denied that the plaintiff had purchased any stamp papers or those were returned. It was pleaded that the plaintiff under the garb of this agreement was pressurizing him to return the amount that had been paid as earnest money by his son.