SOMA JASSAL Vs. DHILPREET SINGH GILL

JUDGEMENT

(1.) Briefly stated facts of the case are that plaintiff Dhilpreet Singh Gill, aged about 51 years son of Harbeant Singh Gill, resident of Mohali had brought a suit against defendants i.e. Smt. Pritam Kaur wife of late Lal Singh, resident of Village Agwar Gujran, Tehsil Jagraon, District Ludhiana and Smt. Soma Jassal wife of Laslie Jassal, resident of 126-White Barn Lane, Dagenham, England, seeking possession of land measuring 151K-3M, situated at Village Galib Kalan-I, Tehsil Jagraon, District Ludhiana fully described in headnote of the plaint, by way of specific performance of agreement to sell dated 11.12.2004, executed by defendant No.1 Pritam Kaur in favour of the plaintiff, directing the said defendant to execute and get registered the sale deed in favour of the plaintiff on receipt of balance sale consideration, as per terms and conditions of the agreement to sell, besides seeking a declaration that order dated 17.03.2005 passed by the Collector, Jagraon setting aside mutation No.1960 of Village Galib Kalan-II and mutation No.14703 of Village Galib Kalan-I, which were already sanctioned on the basis of valid exchange effected between the defendants is hit by principle of lis- pendence, estoppel, liable to be ignored being collusive and has been obtained in order to defeat the rights of the plaintiff for specific performance of agreement to sell dated 11.12.2004 and the same is not binding upon the plaintiff; further seeking a declaration that mutation No.1960 of Village Galib Kalan-II, mutation No.14703 of Village Galib Kalan-I and mutation No.25136/1 of Village Agwar Gujran are perfectly legal, valid and binding upon the defendants on the basis of legal and valid exchange effected and duly acted upon between defendant No.1 and further for a direction to defendant No.2 to join defendant No.1 to execute and get the sale deed registered in favour of the plaintiff. In the alternative, plaintiff has sought recovery of Rs.1,88,75,000/- along with interest @ 18% p.a. from the date of filing of the suit till its realization against defendant No.1 as damages for the loss caused to the plaintiff for act of defendant No.1 having failed to perform her part of contract and in the alternative, the suit for possession of land by way of specific performance of agreement to sell dated 27.10.2004 executed by defendant No.2 through her attorney Parvinder Singh son of Lal Singh directing defendant No.2 to execute and get registered the sale deed in favour of the plaintiff on receipt of balance sale consideration, as stipulated in the agreement to sell dated 27.10.2004 and for recovery of Rs.20,16,500/- i.e. Rs.18,50,000/- being principal amount and Rs.1,66,500/- as interest @ 18% p.a. from 11.12.2004 to 10.06.2005 against defendant No.1 and in the alternative suit for recovery of Rs.1,88,75,000/- along with interest @ 18% p.a. from the date of filing of suit till its realization against defendant No.2 being damages for the loss caused to the plaintiff due to failure of defendant No.2 to perform her part of contract.

(2.) As per version of the plaintiff, Soma Jassal defendant No.2 through her attorney Parvinder Singh had entered into an agreement with plaintiff to sell the suit land measuring 151K-3M @ Rs.10 lacs per acre, receiving earnest money of Rs.50,000/- and an agreement in that regard dated 27.10.2004 was executed. Thereafter, Smt. Pritam Kaur-defendant No.1, who is mother of Parvinder Singh, attorney of defendant No.2, represented that she had got the suit land in exchange from defendant No.2. Accordingly, defendant No.1 entered into an agreement to sell dated 11.12.2004 with plaintiff @ Rs.10 lacs per acre; Rs.50,000/- were paid on 27.10.2004 to defendant No.1 and further amount of Rs.3 lacs was paid by plaintiff to defendant No.1 through cheque bearing No.663763 dated 11.12.2004 of Standard Bank, Feroze Gandhi Market, Ludhiana and another amount of Rs.15,50,000/- was paid in cash. Thus total earnest money paid was Rs.19 lacs. Further, a sum of Rs.7 lacs was paid by the plaintiff to defendant No.1 upto 01.06.2005 and sale deed for half acre of land was to be executed, whereas, sale deed for remaining land was to be executed till 01.12.2005 on payment of balance sale consideration. In the month of February, 2005 due to rising prices, the defendants started negotiations for selling the suit land to some other persons, therefore, the plaintiff filed a suit for permanent injunction, wherein, order of ad-interim injunction, restraining alienation of suit land was passed against defendant No.1. On 01.06.2005, the plaintiff was ready and willing with the balance sale consideration in terms of the agreement and had also attended office of Sub Registrar, Jagraon but defendant No.1 failed to appear and execute the sale deed in favour of the plaintiff. Defendant No.2 in connivance with defendant No.1 had filed an appeal before the Collector, Jagraon, challenging the order of mutation No.1960 of Village Galib Kalan-II and mutation No.14703 of Village Galib Kalan-I, pertaining to exchange of the suit land in favour of defendant No.1 in return for the land of defendant No.1 situated at Village Agwar Gujran in favour of defendant No.2 and a collusive order dated 17.03.2005 setting aside aforesaid two mutations was obtained by them to defeat the right of the plaintiff for specific performance of agreement dated 11.12.2004. According to the plaintiff, the oral exchange between defendants was valid and defendant No.1 was owner of the suit land on the basis of said exchange. The plaintiff was entitled to specific performance of agreement to sell dated 11.12.2004. According to the plaintiff, in the alternative, he was entitled to damages to the tune of Rs.1,88,75,000/-, since he has suffered loss to that extent. The plaintiff intended to carve out a posh colony after purchasing the suit land and would have earned a profit to the tune of more than Rs.10 lacs per acre. In case, the Court comes to the conclusion that defendant No.2 was owner of the suit land, in that case, the plaintiff is entitled to specific performance of agreement dated 27.10.2004 executed by defendant No.2 through her attorney Parvinder Singh, appointed, vide power of attorney dated 16.04.2002, bearing document No.29, registered with Sub Registrar Jagraon, in that eventuality, the plaintiff was entitled to recover amount of Rs.18,50,000/- from defendant No.1 along with interest from 11.12.2004 to 10.06.2005 and in alternative, the plaintiff was entitled to recovery of damages to the tune of Rs.1,88,75,000/- from defendant No.2. According to the plaintiff, he has always been ready and willing to perform his part of contract. He prayed that his suit be decreed.

(3.) On getting notice, defendants appeared and filed separate written statements, contesting the suit. In the written statement filed by defendant No.1, she had taken up various legal objections, to wit, that the suit was barred by principle of constructive res-judicata; the plaintiff had never disclosed that an agreement dated 27.10.2004 was executed by Parvinder Singh attorney of defendant No.2; the plaintiff sought to adjust an amount of Rs.50,000/- paid on 27.10.2004 twice i.e. against defendant No.1 as well as defendant No.2; the plaintiff could not seek specific enforcement of agreement dated 11.12.2004, since the same stood frustrated due to the fact that the exchange effected between defendants was set aside by Collector, Jagraon and defendant No.1 was no longer owner of the suit property. Defendant No.1 was ready to return the amount of Rs.19 lacs received by her from the plaintiff; that the alleged agreement to sell dated 27.10.2004 was not properly stamped and was inadmissible and was also a forged and fabricated document, which had not been executed by Parvinder Singh. Inter alia, it was contended that terms of agreement of sale were orally settled by her with the plaintiff on 27.10.2004 and Rs.50,000/- were paid to her through her son Parvinder Singh, while the agreement was reduced into writing on 11.12.2004, in which, receipt of amount of Rs.50,000/- was acknowledged; that exchange between the defendants had already been effected on 06.10.2004 and thereafter, there was no occasion for the plaintiff to enter into any agreement to sell dated 27.10.2004 with defendant No.2 through her attorney Parvinder Singh son of defendant No.1. According to the answering defendant, the appeal filed by defendant No.2 before Collector, Jagraon was hotly contested by defendant No.1 but she could not succeed; that the damages claimed by plaintiff were imaginary and were not admissible since the plaintiff had agreed to liquidated damages. In the end, such defendant prayed for dismissal of the suit.