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2002 DIGILAW 229 (HP)

Lal Chand v. Salig Ram

2002-08-21

M.R.VERMA

body2002
JUDGMENT : M.R. Verma, J. – 1. This second appeal under Section 100 of the Civil Procedure Code has been preferred by the appellant/defendant (hereafter referred to as 'the defendant') against the judgment and decree dated 17.12.1998 passed by the learned District Judge, Solan whereby the appeal preferred by the respondent/plaintiff (hereafter referred to as 'the plaintiff') against the judgment and decree dated 10.4.1996 passed by the learned Senior Sub Judge, Solan has been set aside and the suit of the plaintiff has been decreed for specific performance of the contract. 2. Briefly stated, the relevant facts for the purpose of disposal of this appeal are that the plaintiff instituted a suit against the defendant and one Nanak Chand - original/defendant, who has since died and is now represented by his legal representatives - proforma respondents/defendants No. 2 to 6 (hereafter referred to as 'the codefendants') for specific performance of a contract dated 19.1.1990 where by the defendant and predecessor-in-interest of the codefendants agreed to sell land khasra No. 303/3/2 and 304/1 measuring 98 square meters situate in Mauza Lower Bazaar, Solan (hereafter referred to as 'the suit land') for consideration in the sum of Rs. 1,00,000/- and in the alternative for refund of earnest money of Rs. 75,000/- paid in part payment of the sale consideration to the defendant. Case of the plaintiff is that the aforesaid agreement was executed between the parties thereto and a sum of Rs. 75,000/- as earnest money was paid to the defendant. Case of the plaintiff is that the aforesaid agreement was executed between the parties thereto and - a sum of Rs. 75,000/- as earnest money was paid to the defendant and predecessor-in-interest of the co-defendants and was to be adjusted against the sale consideration. The remaining amount of sale consideration was to be paid by the plaintiff on the date of execution and registration of the sale deed which was to be executed within six months of the execution of the agreement. The plaintiff has been approaching the defendant and the predecessor-in-interest of the co-defendants for getting the sale deed executed and registered but was put off on one pretext or the other. On 8.2.1990 when the plaintiff approached the defendant, who was also acting as Central Power of Attorney of the predecessor-in-interest of the codefendants, the defendant unilaterally cancelled the agreement and sent two post dated cheques for Rs. On 8.2.1990 when the plaintiff approached the defendant, who was also acting as Central Power of Attorney of the predecessor-in-interest of the codefendants, the defendant unilaterally cancelled the agreement and sent two post dated cheques for Rs. 41,000/- and Rs. 50,000/- which the plaintiff did not accept. Doubting the bona fides of the defendant, the plaintiff instituted a suit for injunction restraining the defendant and the predecessor-in-interest of the co-defendants from selling/alienating the suit land. After institution of the sad suit, the defendant approached the plaintiff, took back his aforesaid cheques and promised to abide by the agreement dated 19.1.1990. However, despite efforts and service of notice by the plaintiff, the defendant and predecessor-in-interest of the co-defendants failed to perform their part of the agreement, hence, this suit. 3. The suit was contested by the defendants. In the written Statement, preliminary objection was taken that the plaintiff has no locus-standi to institute the present suit. On merits, it was averred. hat the plaintiff got certain papers signed from the defendant without making any payment to him and that the agreement n question does not bear the signatures of the defendant. It was further claimed that the cheques were given to the plaintiff as loan and not as claimed in the plaint. It was further contended that no sale deed was to be executed and the claim of the plaintiff is based on concocted and false version. 4. On the pleadings of the parties, the trial Court framed the following issues : 1. Whether defendant by agreement deed 19.1.1990 agreed to sell suit property and recovered Rs. 75,000/- as earnest money ? ...OPP 2. Whether defendants have declined to perform their part of the contract ?...OPP 3. Whether plaintiff is ready & willing to perform his part of the contract ?...OPP 4. Whether plaintiff has no locus-standi to file the suit ? ...OPD 4A. Whether the plaintiff is entitled to a sum of Rs. 75,000/alongwith interest, as prayed for in the alternative ? ...OPP. 5. Relief." 5. The trial Court vide its judgment dated 10.4.1996 decided Issue Nos. 1, 2, 3 and 4A in favour of the plaintiff whereas Issue No.4 was decided against the plaintiff and as a consequence the learned trial Judge decreed the suit for the alternative relief i.e. passed a decree for Rs. 75,000/- with costs and interest. ...OPP. 5. Relief." 5. The trial Court vide its judgment dated 10.4.1996 decided Issue Nos. 1, 2, 3 and 4A in favour of the plaintiff whereas Issue No.4 was decided against the plaintiff and as a consequence the learned trial Judge decreed the suit for the alternative relief i.e. passed a decree for Rs. 75,000/- with costs and interest. A decree for specific performance of the agreement, however, was not passed. Being aggrieved, plaintiff preferred an appeal in the Court of the learned District Judge, Solan who allowed the appeal and decreed the suit of the plaintiff for specific performance of the contract. The defendant, feeling aggrieved by the impugned judgment and decree, has preferred'the present appeal. 6. I have heard the learned counsel for the parties and have also gone through the records. 7. This appeal had been admitted for hearing on the following substantial questions of law : 1. Whether the impugned judgment and decree is the result of complete is misreading, misappreciation and misinterpretation of Exts. PW-1/A agreement dated 19.1.1990, Ext. PW-1/B alleged receipt and Ext.PW-1/E copy of the written statement filed in the earlier suit ? 2. Whether the learned lower appellate Court has rightly come to the conclusion that the respondent/plaintiff is entitled for decree for specific performance of agreement Ext. PW-1/A ? 3. Whether the learned lower appellate Court is right in decreeing the suit for specific performance especially when the learned trial Court had declined the said prayer of the plaintiff and decreed the suit for refund of earnest money alongwith interest at the rate of 12% per annum ? 4. Whether the impugned judgment and decree is the result of misreading, misinterpretation as well misappreciation of statements of PW-1, PW-2, PW-3 and PW-7 ? 5. Whether the impugned judgment and decree is the result of non-consideration of important aspect of the matter i.e. whether the appellant could have entered into an agreement for sale with respect to ancestral property ?" 8. At the time of arguments, it was found that substantial question No. 5 (supra) is not at all involved in the present appeal, therefore, it does not call for any findings. On other substantial questions of law, the learned counsel for the plaintiff has contended that the lower appellate Court has mis-read, mis-appreciated and misinterpreted the agreement dated 19.1.1990 Ext. At the time of arguments, it was found that substantial question No. 5 (supra) is not at all involved in the present appeal, therefore, it does not call for any findings. On other substantial questions of law, the learned counsel for the plaintiff has contended that the lower appellate Court has mis-read, mis-appreciated and misinterpreted the agreement dated 19.1.1990 Ext. PW-1/A and the statement of plaintiff Salig Ram (PW-1) and thereby has misdirected itself in decreeing the suit for specific performance. According to the learned counsel, the plaintiff initially instituted a suit for specific performance but subsequently by way of amendment claimed alternative relief of a decree for refund of Rs. 75,000/- the earnest money allegedly paid by him as per the agreement. This act on the part of the plaintiff when read with the stipulation in the agreement Ext. PW-1/A that in case the defendants failed to execute and register the sale deed in favour of the plaintiff within the stipulated period the defendants would be liable to pay double the earnest money to the plaintiff and the statement of the plaintiff (PW-1) on oath that a decree for Rs. 75,000/- alongwith interest be passed in his favour, the only relief which could be granted to the plaintiff was a decree for the amount claimed, therefore, such a decree passed by the trial Court was fully justified and proper and a decree for specific performance could not have been passed as has been done by the lower appellate Court. 9. On the other hand, the learned counsel for the plaintiff has contended that amendment of the plaint adding the alternative relief for decree for Rs. 75,000/- with interest does not in any manner affect the main relief claimed in the suit. Even according to the agreement Ext. PW-1/A, it was at the option of the plaintiff to claim the relief and there is nothing in such agreement which prohibits the plaintiff from seeking the relief of specific performance of the agreement. It was further contended that there is no reason to deny the relief of specific performance to the plaintiff as was wrongly denied by the trial Court and the wrong committed by the trial Court has been rightly and legally set right by the lower appellate Court, therefore, the impugned judgment and decree does not call for any interference. 10. It was further contended that there is no reason to deny the relief of specific performance to the plaintiff as was wrongly denied by the trial Court and the wrong committed by the trial Court has been rightly and legally set right by the lower appellate Court, therefore, the impugned judgment and decree does not call for any interference. 10. To appreciate the controversy between the parties, Clauses 2 and 3 of the agreement Ext.PW-1/A are relevant, which read as under : "2. That the purchaser shall get the sale deed executed and registered in his favour within six months from today i.e. on or before 18.7.1990 and in case the purchaser fails to get the sale deed executed and registered in his favour in the stipulated period in that event the earnest money paid today i.e. Rs. 75,000/- to the seller shall stand forfeited. 3. That in case the seller fails to execute and register the sale deed in favour of the purchaser in the stipulated period or refuses to sell the same in that event the sellers will be held liable to pay double of the earnest money to the purchaser or the purchaser shall be at liberty to get the sale deed executed and registered in his favour through Court of law at the costs and expenses of the sellers." 11. It is evident on a bare reading of the aforesaid clauses that the sale deed was to be executed and registered in favour of the plaintiff within six months of the date of execution of the agreement and in the event of failure of the defendant and the predecessor-in-interest of the co-defendants to do the needful within the stipulated period or their refusal to do the same they were liable to pay double the earnest money to the plaintiff or the plaintiff was at liberty to get the sale deed executed and registered in his favour through the Court of law at the costs and expenses of the defendants because by virtue of clause 9 of the agreement the expression sellers (i.e. the defendants and predecessor-in-interest of the co-defendants) was to include their legal heirs, successors, executors, administrators, assigns etc. It was thus at the option of the plaintiff to sue either for specific performance of the contract or to sue for recovery of damages as per the agreement or to claim the main relief of specific performance of the contract and in the alternative claim the damages. There is no proposition of law to support the contention that in a suit claiming alternative relief, only the alternative relief should be granted and the main relief should be declined. Unless the plaintiff abandons the main relief and claims alternative relief alone or there are special reasons to do so, the main relief cannot be disallowed simply because alternative relief has been claimed. The plaintiff sued for the main relief and claimed refund of the earnest money alongwith interest in the alternative in case the main relief could not be granted in his favour for any reason. It is so in the plaint and is so stated by the plaintiff in his statement. He has clarified in his statement that in case he cannot be granted the main relief of specific performance the alternative relief be granted in his favour. Therefore, the mere act of the plaintiff in claiming damages as alternative relief cannot be a ground to refuse main relief of specific performance to him. 12. In Prakash Chandra v. Angadlal & Ors., AIR 1979 Supreme Court 1241 while dealing with a similar question as in hand, the Hon'ble Supreme Court held as under : "10. It is urged by learned counsel for the first and second respondents that the contract for sale contains a clause for payment of damages in case of breach of the contract and that, therefore, damages should be awarded instead of specific performance. A perusal of the terms of the contract indicates that the stipulation for damages was made only for the purpose of securing performance of the contract and not for the purpose of giving an option to Mohsinali and Quarban Hussain of paying money in lieu of specific performance. Even if a sum has been named in the contract for sale as the amount to be paid in case of a breach the appellant is entitled in law to the enforcement of the agreement." 13. In Motilal Jain v. Smt. Ramdasi Devi & Ors., AIR 2000 Supreme Court 2408, the Hon'ble Supreme Court held as under : "12. The last contention of Mr. In Motilal Jain v. Smt. Ramdasi Devi & Ors., AIR 2000 Supreme Court 2408, the Hon'ble Supreme Court held as under : "12. The last contention of Mr. Choudhary that because the plaintiff has claimed compensation in lieu of specific performance so he is disentitled to claim the specific performance of the contract, is to be noted to be rejected. The plaintiffs claim was in accord with the provisions of Section 21 of the Specific Relief Act, 1963. Merely, because the plaintiff claims damages in a suit for specific performance of contract as alternative relief, it cannot be said that he is not entitled to the main relief of specific performance of contract itself." 14. In view of the above position in law, the relief of specific performance, as claimed by the plaintiff, could not be denied to him simply because he has made an alternative prayer for a decree for Rs. 75,000/- on account of the earnest money and for interest thereon. To deny relief of specific performance to the plaintiff and to grant him the alternative relief only either it has to be shown that the plaintiff had abandoned the claim for specific performance at any stage or there were any equitable considerations on the basis of which such relief deserved to be refused and decreeing of the alternative relief would have constituted an adequate relief. This is, however, not the case of the defendants. 15. In view of the above discussion, the impugned judgment and decree cannot be said to be erroneous or illegal or based on misreading of the evidence on record, therefore, do not cal for any interference. 16. As a result, this appeal, merits dismissal and is accordingly dismissed. Parties, however, are left to bear their own costs.