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2010 DIGILAW 825 (PNJ)

Darshan Singh v. Smt. Sukhwinder Kaur

2010-02-08

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1 This appeal by the defendant is directed against the judgments passed by the learned trial court dated 1.11.2003 and that of the first Appellate Court dated 22.7.2005. 2 A suit for possession by way of specific performance of an agreement to sell dated 16.5.1995 regarding 5 kanals 15 marlas of land was initiated by the present respondent No. 1. As per this agreement to sell, Rs.70,000/- were paid as earnest money to the appellant by the respondent No.1 at the time of execution of the agreement to sell. The sale consideration was fixed at the rate of Rs.1,50,000/- per killa and the sale deed was to be executed by 16.5.1996. According to the terms of the agreement to sell there was a stipulation that in the eventuality of the appellant/defendant No.l not performing his part of agreement, the respondent No.l/plaintiff shall be at liberty to get the sale deed executed in her favour through the court of law or, in the alternative get the refund of Rs.1,40,000/-, which was double the amount of earnest money. Since the appellant failed to perform his part of the agreement, the suit was filed and in the reply filed to the averments made to the plaint, the appellant denied the execution of the agreement to sell, and all the terms and conditions thereof were also denied as a consequence thereto. 3 On the pleading of the parties issues were framed to the following effect:- 1) Whether the plaintiff is entitled to possession of the suit land by way of specific performance of agreement to sell dated 16.5.1995? OPP 1-A) Whether the plaintiff always remained ready and willing and is still ready and willing to perform her part of the contract? OPP 2) Whether in the alternative, plaintiff is entitled to recover Rs.1,40,000/- with interest from the defendant? OPP 3) Whether the plaintiff has got no locus standi to file the present suit? OPD 4) Whether the suit is not maintainable in the present form? OPD 5) Whether the plaintiff has got no cause of action to file the present suit? OPD 6) Relief. 4 Both the courts concluded that the execution of the agreement to sell has been established and so was the passing of sale consideration and the relevant terms thereof. OPD 4) Whether the suit is not maintainable in the present form? OPD 5) Whether the plaintiff has got no cause of action to file the present suit? OPD 6) Relief. 4 Both the courts concluded that the execution of the agreement to sell has been established and so was the passing of sale consideration and the relevant terms thereof. The suit was accordingly decreed which has resulted in filing of the instant appeal in which the learned counsel for the appellant contended that once the agreement to sell stipulated an alternate to the execution of sale deed by way of return of double the amount of earnest money, the courts should have explored this possibility and should not have decreed the suit of the plaintiff-respondent No.l for execution of the sale deed. He contends that on this count the case of the appellant has been seriously prejudiced. According to him, the question of law is as to whether the courts are not duty bound to explore the possibility of resorting to the provisions of Section 20 of the Specific Relief Act in each and every case regardless of the pleadings of the case set up by the plaintiff. Reliance has been placed on Kamal Kant Jain v. Surinder Singh, 2008(2) H.R.R. 91. 5 On the other hand, learned counsel for respondent No. 1 has contended that once the agreement to sell had been held to be valid and the passing of the sale consideration was also proved and it was also established that the appellant had failed to perform his part of the agreement by not executing the sale deed, there was no other conclusion to be arrived at by the courts below except for decreeing the suit for possession by way of specific performance. He further contended that merely because an alternate prayer is there, it does not mean that all other options had been foreclosed to the plaintiff/respondent No.l and that she was bound by the alternate prayer in which it was contemplated that the plaintiff shall be at liberty to get the agreement to sell enforced by the court of law. 6 After hearing the learned counsel for the parties, I find this appeal without any substance. 6 After hearing the learned counsel for the parties, I find this appeal without any substance. There was a clear stipulation in the agreement to sell that the appellant had the option to get the sale deed executed through the court of law or in the alternative get the refund of Rs.1,40,000/- which was double the amount of earnest money. The plaintiff/respondent No.l availed the first option to get the sale deed executed in her favour. Both these contentions are independent of each other and not contingent upon the performance of one or the other. In such an eventuality when the execution of the agreement to sell has been established and the passing of the sale consideration has been proved and the appellant with dishonest intention had disputed the execution of the agreement to sell, the courts were right in decreeing the suit of the plaintiff/respondent No.l. Besides, it has been pointed that the agreement to sell has also been translated into a sale deed with the intervention of the court. In such an eventuality there is no reason for this court to explore the possibility of resorting to the provisions of Section 20 of the Specific Relief Act. Similarly, it is not mandatory that in every case Section 20 should be explored as the facts of the case and the circumstances leading to the dispute inter se are the determining factors on the basis of which court can be prompted to explore such a possibility of resorting to the provisions of Section 20 and in any eventuality whether the same has been done justifiably or not even though the question of law can be answered only on the basis of the circumstances leading to such exploration or denial of the aforesaid provisions of law. In the given set of circumstances the plaintiff/respondent No.l had the option to get the sale deed executed through the court of law. It cannot be said that merely because she chose to have recourse to one remedy in preference to the other, the same would have resulted in any prejudice to the appellant/defendant No. 1. 7 Learned counsel for the appellant has contended that the sale consideration was inadequate and therefore, the agreement to sell could not be held to be valid. This contention of the learned counsel for the appellant has to be repelled. 7 Learned counsel for the appellant has contended that the sale consideration was inadequate and therefore, the agreement to sell could not be held to be valid. This contention of the learned counsel for the appellant has to be repelled. Once the agreement to sell is held to be a valid piece of evidence, the terms thereof, which were accepted by the appellant in full consciousness, cannot be questioned. No ground to interfere.