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2010 DIGILAW 605 (PNJ)

Rupa Singh v. Sukhwant Singh

2010-01-25

RAKESH KUMAR GARG

body2010
Judgment Rakesh Kumar Garg, J. 1. This is defendants second appeal challenging the judgment and decree of the Courts below whereby suit of the plaintiff-respondent was ordered to be decreed for recovery of Rs.45,000/- along with interest at the rate of 9% from the date of agreement till the date of decree and also for future interest at the rate of 6% per annum till its realization. As per averments, the plaintiff-respondent filed a suit for specific performance of the agreement to mortgage dated 26.5.2009 against the appellant alleging therein that on 26.5.1999 the defendant- appellant agreed to mortgage the land in dispute for five years along with all rights in the said land in his favour for a sum of rs.50,000/- and received a sum of Rs.45,000/- as earnest money at the time of execution of the agreement and the defendant-appellant signed the agreement to mortgage in token of its correctness and received an amount of R.45,000/- in the presence of witnesses. As per the aforesaid agreement, the plaintiff-respondent could get the mortgage deed executed in his name and the period of the mortgage was fixed at 5 years from the date 20.5.2004. On failure of the defendant-appellant to execute the mortgage deed in favour of plaintiff-respondent, he could get the agreement specifically enforced through the competent Court of law. On failure of the defendant, he was liable to pay a sum of Rs.90,000/- as principal amount and damages. The possession of the suit property was delivered to the plaintiff-respondent. It is the further case of the plaintiff that defendant-appellant failed to execute the mortgage deed in his favour. Hence, the present suit. The suit was contested by the appellant taking various preliminary objections. On merits, execution of the agreement to mortgage was denied. Receipt of Rs.45,000/- as earnest money was also denied. It was submitted that the appellant never entered into an alleged agreement with the plaintiff-respondent nor the question of same arises at all. Other averments were also denied and dismissal of the suit was prayed for. On appreciation of evidence and after hearing learned counsel for the parties, the trial Court held that the execution of the agreement in question stood proved. However, specific performance cannot be granted in favour of the plaintiff-respondent and in these circumstances, the suit of the plaintiff-respondent for recovery of Rs.45,000/- along with interest as aforesaid was decreed. 2. On appreciation of evidence and after hearing learned counsel for the parties, the trial Court held that the execution of the agreement in question stood proved. However, specific performance cannot be granted in favour of the plaintiff-respondent and in these circumstances, the suit of the plaintiff-respondent for recovery of Rs.45,000/- along with interest as aforesaid was decreed. 2. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellant filed an appeal which was also dismissed by the lower Appellate Court. 3. Still not satisfied, the present appeal has been filed on behalf of the defendant-appellant challenging the judgment and decrees of the Courts below. 4. Learned counsel appearing on behalf of the appellant has vehemently argued that in view of the fact that the plaintiff-respondent had claimed that he was delivered the possession of the land in dispute which was to be mortgaged to him through a decree for recovery of rs.45,000/- interest cannot be granted against the appellant. Elaborating further, learned counsel has argued that the respondent might have enjoyed the produce from the land equivalent to the interest and moreover, there were no terms of payment of interest in the agreement. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial question of law arises in this appeal. "whether the respondent is entitled to the interest whereas as per his claim, he enjoyed the possession of the land to be mortgaged under the agreement?" 5. I have heard learned counsel for the appellant and perused the impugned judgment and decrees. 6. On the pleadings of the parties, a specific issue was framed which reads as follows: "whether in alternative plaintiff is entitled for recovery of rs.45,000/- along with interest? OPP" 7. No grievance was raised by the appellant at any stage with regard to framing of the aforesaid issue. The trial Court finding that agreement in question was duly executed and a sum of Rs.45,000/- was received by the appellant, rightly passed a decree of Rs.45,000/- in favour of the respondent and also granted interest on the aforesaid amount keeping in view the normal rate of interest as prevalent. Even in the appeal before the Lower Appellate court, the appellant has not raised any grievance with regard to the grant of interest against him. Even in the appeal before the Lower Appellate court, the appellant has not raised any grievance with regard to the grant of interest against him. No such argument as raised before this Court has been shown to be raised before the Lower Appellate Court. 8. In view of the aforesaid, I find no merit in this appeal. No question of law much less substantial question of law, as argued by the learned counsel for the appellant, arises in this appeal. Dismissed.