KULWINDER KAUR Vs. PARKASH CHAND KAPOOR CHAND

JUDGEMENT

(1.) Briefly stated facts of the case are that plaintiff M/s Parkash Chand Kapoor Chand Commission Agents, New Grain Market, Nabha, through its partner Rajinder Parsad, had brought a suit for specific performance, in alternative suit for recovery of Rs.3,80,000/- and for permanent injunction against Inderjit Singh, Smt. Kulwinder Kaur, Smt. Tejinder Kaur and Amarjit Singh.

(2.) As per version of the plaintiff, plaintiff is a partnership concern working as Commission Agent at New Grain Market, Nabha. It is registered with Registrar of Firms Punjab, Chandigarh. Defendant No.1 is a co-sharer in the land measuring 2 bigha 5 biswa comprised in Khewat No. 7 and the land measuring 100 bighas 6 biswas comprised in khewat No.8 and further land measuring 103 bighas 7 biswas comprised in Khewat No. 10 as entered in jamabandi for the year 1996-97 A.D. of village Bakhtari. Defendant No. 1 is recorded to be in possession of land measuring 22 bighas 17 biswas comprised in Khewat No. 8 Khatoni No. 25 and Khasra No. 493 min/5-0, 951/206/5-18, 953/207 min/2-1, 208/6-15, 209/3-3, situated in the revenue estate of village Bakhtari. Defendant No.1 entered into an agreement of sale with the plaintiff on 20.6.1996 regarding the sale of the land. That agreement was signed by defendant No.1 and Rajinder Parshad, partner of the plaintiff. It was attested by Vidya Sagar and Raghbir Chand witnesses. Defendant No.1 could not execute the sale deed in favour of plaintiff firm in accordance with the terms and conditions of agreement of sale by the due date and he requested the plaintiff firm to extend the time further for a month. Consequently, the date was extended from 15.11.1996 to 31.12.1996 and further an amount of Rs.35,000/- was paid by the plaintiff firm to defendant No.1 as part of sale consideration at that time. However, the defendant No.1 did not execute the sale deed in accordance with the terms and conditions of agreements of sale dated 20.6.1996 and 15.11.1996. He showed his inability to do so and requested the plaintiff to execute the sale deed by 30.11.1997 by further extending the time for execution of sale deed. The plaintiff agreed and extended the time and consequently agreement dated 31.12.1996 was executed by defendant No.1. The plaintiff firm through Rajinder Parshad approached defendant No.1 on 29.11.1997, with the balance sale consideration, expenses of stamps and registration and tendered the same to defendant No.1 asking him to execute the sale deed of the suit land but to no effect. On 1.12.1997 the date agreed, the defendant no.1 again did not turn up for completion of transaction. Rajinder Parshad partner who had attended the office of Sub Registrar, Bhawanigarh, got his presence marked by getting the affidavit attested from the Executive Magistrate, Bhawanigarh. Defendant No.1 had been delaying the matter on one pretext or the other. Consequently, plaintiff came to know that defendant No.1 had sold the land measuring 9 bighas 10 biswas of the land, which include suit land also, vide sale deed No. 412 of 20.5.1997 in favour of defendants No. 2 and 3 for an ostensible consideration of Rs.2,52,000/-. During pendency of the suit, defendants No. 2 and 3 had alleged in the written statement about execution of two sale deeds by defendant No.1 in their favour bearing No. 412 dated 20.5.1997 and 1787 dated 18.12.1996. Then the plaintiff came to know about execution of sale deed No. 1787 dated 18.12.1996, which was for an ostensible consideration of Rs.3,60,000/-. According to him this sale in favour of defendants No. 2 and 4, is a sham and bogus transaction brought by defendant No.1 in order to harm the interest of plaintiff. This sale deed is absolutely without any consideration and the vendees Amarjit Singh himself and Kulwinder Kaur through her husband Bhupinder Singh had notice of earlier agreements of sale executed by defendant No.1 in favour of the plaintiff. Therefore, the said sale deed is ineffective and inoperative as against the rights of the plaintiff. The plaintiff requested the defendant to get the sale deed executed, by setting aside the sale deeds executed by him in favour of defendants No. 2 and 3 and such defendants be asked to join defendant No.1 in executing the sale deed in favour of plaintiff, but to no effect. Therefore, the plaintiff brought the suit in question contending that it is entitled to the relief of possession of the suit property through specific performance of agreement of sale on payment of balance sale consideration of Rs.81,250/- by adjusting the earnest money. In case the court come to the conclusion that the plaintiff is not entitled to the relief of specific performance of agreements of sale for any reason, then in alternative plaintiff was entitled to refund of earnest money of Rs.2,35,000/- alongwith interest of Rs.1,45,000/- @ 18% per annum from the dates of agreements of sale till the date of suit and future interest @ 18% per annum from the date of suit till the realization. According to the plaintiff, it is entitled to this amount of Rs.1,45,000/- by way of damages also as the plaintiff has been deprived of use of this this amount of Rs.2,35,000/- as the amount remained with defendant No.1 from the dates of agreements of sale. The market rate of interest in the locality of Nabha is not less than 2% per month, however, the plaintiff claimed interest @ 1.5% per annum. It was calculated as Rs.1,45,000/-. That the plaintiff was entitled to relief of permanent injunction, restraining the defendants from alienating or transferring the suit land in favour of any person.

(3.) In the separate written statement filed by defendants No. 2 and 3, they have also taken up various legal objections. According to such defendants, the allegation that defendant No.1 had entered into an agreement of sale with the plaintiff on 20.6.1996 is not correct, rather it is forged and fabricated document. The true facts of the case are that on 13.6.1995, defendant No.1 entered into an agreement for sale of land measuring 20 bighas comprised in Khata No. 7/27, killa No. 951/206/5-18, 953/207/min/2-1, 338/8-1, 208 min/40-0 @ Rs.40,000/- per bigha and received Rs.5,49,000 as earnest money. An agreement to this effect was executed in favour of Bhupinder Singh and Amarjit Singh, husbands of defendants No. 2 and 3, respectively. The sale deeds dated 19.12.1996 and 20.5.1997 were executed in favour of Amarjit Singh son of Dalip Singh, Kulwinder Kaur wife of Bhupinder Singh and Tejinder Kaur wife of Amarjit Singh, respectively. The original agreement dated 13.6.1996 was misplaced from the house and defendants No. 2 and 3 got its photostat copy from the office of Sub-Registrar, Bhawanigarh. The vendees are bona fide purchasers for value and without notice, who made the necessary inquiries from the office of Sub-Registrar, Bhawanigarh before getting the said sale deeds executed. The agreements dated 15.11.1996, 20.6.1996 and 31.12.1996 are alleged to have been executed at Nabha and defendants No. 2 and 3 were supposed to make enquiry regarding title of property from the office of Sub Registrar, Bhawanigarh and since the disputed property is situated within its jurisdiction as village Bakhtari falling within Sub Tehsil, Bhawanigarh, this fact in itself establishes that no agreement as alleged was executed and the alleged agreements are forged and fabricated documents. The plaintiffs were required to get their presence marked on 30.11.1997 in the office of Sub-Registrar, Bhawanigarh. The sale of land by defendant No.1 in favour of defendants no. 2 and 3 was stated to be legal and valid. Refuting the remaining assertions, such defendants prayed for dismissal of the suit.