HARJIT SINGH Vs. GIAN SINGH

JUDGEMENT

(1.) The appellants seek to challenge the judgment and decree of the first Appellate Authority by which the suit of the plaintiff for specific performance has been partly decreed by directing refund of the earnest money as received.

(2.) The facts as stated are that the plaintiff--respondent ('the respondent' for Short) agreed to purchase land measuring 72 K along with passage, electric motor, Khal, Pahi etc @ Rs. 16,40,000/- per acre, as per sale agreement dated 5.10.2006. The vendors i.e defendants--appellants ('the appellants' for short) were Harjit Singh and Pargat Singh, who also acted on behalf of Inderjt Singh and Amanjot Kaur. An amount of Rs. 6,00,000/- was received by Harjit Singh and Pargat Singh as earnest money for themselves and on behalf of the other two. The sale was to be executed on or before the 15.5.2007. In terms of the agreement, the respondent paid another amount of Rs. 16,00,000/- to the attorney of Inderjit Singh but as the attorney was not valid, a fresh attorney was got and duly registered with the Commissioner Patiala, on 23.4.2007. An endorsement was made on the back of the page whereby Pargat Singh for himself and being power of attorney of Inderjit Singh admitted to having received an amount of Rs. 16 lakh as earnest money. In the agreement for sale, it was also agreed that in case the appellants failed to perform their part of the agreement, the respondent was at liberty to execute the sale deed through the court or shall be entitled to double of the earnest money. The respondent appeared before the office of the Sub- Registrar, Samrala, on the appointed date, but the appellants showed their inability to execute the sale deed and an endorsement in this regard was made on the reverse of the agreement (but was not signed by Inderjit Singh and Amarjit Kaur). The respondent got his presence marked before the office of the Sub-Registrar, Samrala. The respondent on inquiry came to know that there was a Civil Suit pending in the Court of Sh. R.K. Mittal, Civil Judge, Khanna, against Inderjit Singh from alienating the suit land in Civil suit No. 437 of 22.11.2006 titled as Harminder Singh versus Harjit Singh and another and there was a stay order in another case titled as Harpal Singh versus Harjit Singh pending before the Civil Judge (Senior Division), Khanna. It was stated that after entering into the agreement to purchase, the respondent had further entered into an agreement of sale of the same land with other persons but due to non-execution of the sale deed the respondent had to return the earnest money. It was also stated that the appellants did not clear the loan on the suit property and had also not demarcated the land in question as per the terms and conditions of the agreement and as such, since the land was not free from encumbrances a suit for recovery was filed seeking a refund of the part payment made.

(3.) The suit was contested by the appellants, who filed their separate written statements raising the question of maintainability of the suit. It was averred that the respondent has not sought the relief for specific performance and the appellants were always ready and willing to perform their part of the agreement to sell. It was stated that the land of appellants No. 4 Amarjit Kaur was free from all encumbrances and she was ready to execute the sale deed on 15.05.2007, whereas Inderjit Singh also agreed to execute the sale deed after vacation of the injunction order from the civil courts. It was also stated that the respondent did not have the requisite money to purchase the suit land as would be evident from the fact that he had entered into an agreement with another to sell the land. It was also stated that the respondent did not make payment of Rs. 7 lakh in Rs. 13 lakh to Indejit Singh as per the agreement and as such the earnest money of Rs. 22,00,000/- stands forfeited. Replication was filed and issues were framed. The trial court on the evidence adduced held that the respondent himself was not ready and willing to get the sale deed executed and that the earnest money stands forfeited . It was also held that a simplicitor suit for recovery would not be maintainable without applying for the relief of specific performance. The said judgment was reversed in appeal and the respondent was held entitled to recovery of the amount paid as earnest money. Aggrieved the appeal has been preferred by the appellants.