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2019 DIGILAW 2851 (PNJ)

Sanjeev Kumar v. Anil Kumar

2019-10-29

LISA GILL

body2019
Judgment Mrs. Lisa Gill, J.:-Appellant-defendant is aggrieved of the judgment and decreedated 10.04.2019, passed by the learned District Judge, Bathinda as well asjudgment and decree dated 24.07.2018, passed by the learned Addl. CivilJudge (Senior Division), Phul whereby suit filed by the respondent-plaintiffhas been decreed. 2. Brief facts necessary for the adjudication of the case are that theplaintiff-respondent filed a suit for recovery of Rs.8,50,000/- with interest @1% per month from the date of execution of the agreement to sell executed bythe defendant-appellant in favour of the plaintiff. It is pleaded that the presentappellant Sanjeev Kumar along with his brothers Mangat Rai and Baljinder areowners in possession of the suit property as detailed in the plaint. Mangat Rai,the appellant’s brother had given the property in question on lease to theplaintiff from 01.04.2012 to 31.03.2013, in which two grinders along with 25HP motor, electric connection (20 KW), scale (Kanda), counter and tools wereinstalled. Writing dated 15.02.2013 in this respect was executed between theplaintiff and Mangat Rai in the presence of witnesses Mohinder Singh andFaneesh Kumar for a sum of Rs.69,500/-. Amount of Rs.60,000/- thereof wasreceived and the remaining amount of 9,500/- was to be paid on 31.03.2013 toMangat Rai. Thereafter, the defendant-appellant Sanjeev Kumar informed theplaintiff that he had purchased the suit property from his brothers Mangat Raiand Baljinder vide an agreement and Sanjeev Kumar further agreed to sell thesuit property along with grinder, motor connection, electric meter etc. to theplaintiff vide agreement dated 26.02.2013 for a total consideration ofRs.25,00,000/-, in the presence of witnesses Mohinder Singh, Sanjeev Kumarson of Hari om, Sanjiv Kumar son of Jagan Nath and Vijay Kumar.Rs.6,25,000/- was received as earnest money from the plaintiff by theappellant. It is stated that the sale deed would be executed by the defendantappellant in the plaintiff’s favour till 13.06.2013 and the possession of the suitproperty already with the plaintiff, would be retained by him. Date ofexecution of the sale deed was stated to be extended from 13.06.2013 to12.07.2013 in the presence of witnesses Mohinder Singh and Bahal Singh. Anendorsement to this effect was stated to have been made on the back side of theagreement to sell dated 26.03.2013. 3. However, the appellant-defendant, it is pleaded, in connivancewith his wife namely Raman Arora, with a view to usurp the right of theplaintiff and with an intention to dispossess him, executed sale deed dated25.07.2013 in favour of Raman Arora. Anendorsement to this effect was stated to have been made on the back side of theagreement to sell dated 26.03.2013. 3. However, the appellant-defendant, it is pleaded, in connivancewith his wife namely Raman Arora, with a view to usurp the right of theplaintiff and with an intention to dispossess him, executed sale deed dated25.07.2013 in favour of Raman Arora. The plaintiff claimed to have remainedpresent before the Sub-Registrar on 13.06.2013 and 12.07.2013 for registrationof the sale deed but the defendant did not come present. Plaintiff, it is stated,was ready to carry out his part of the contract. The defendant, however, inconnivance with his brothers Mangat Rai, Baljinder Singh and his wife RamanArora filed a false and illegal civil suit regarding the suit property before theCourt of learned Additional Civil Judge (Sr. Division), Phul, in which interimorder was granted. The defendant, it is stated, deliberately did not execute thesale deed in favour of the plaintiff. The original agreement is pleaded to havebeen lost and a DDR in this respect was lodged by the plaintiff. When the saledeed was registered in favour of Raman Arora on 25.07.2018, the civil suit waswithdrawn by Mangat Rai. Neither the sale deed was registered in theplaintiff’s favour nor the double of the earnest money returned in terms of theagreement despite requests. Hence, this suit was filed. 4. Defendant-appellant resisted the suit and various preliminaryobjections were taken. The suit was claimed to be hopelessly time barred andnot maintainable. It is stated that the suit property was previously owned byMangat Rai, the appellant’s brother. However, possession of the plaintiff overthe suit property as a mortgagee under Mangat Rai w.e.f. 01.04.2012 till31.03.2013 is admitted. It is stated that Mangat Rai entered into an agreementto sell with the defendant and agreed to sell the suit property to him. Totalamount of sale consideration was received by Mangat Rai, who agreed to getthe sale deed executed and registered in favour of the defendant-appellant orany other person of his choice as and when he so desired. 5. Agreement to sell dated 26.02.2013 between the plaintiff and thedefendant-appellant is admitted, though extension of the date of execution andregistration of sale deed is denied. It is sought to be explained that it is theplaintiff who failed to arrange the balance amount of the sale consideration andget the sale deed executed and registered in his favour as per the terms andconditions of the settlement. It is sought to be explained that it is theplaintiff who failed to arrange the balance amount of the sale consideration andget the sale deed executed and registered in his favour as per the terms andconditions of the settlement. Therefore, the earnest money paid by the plaintiffstood forfeited. It is in this eventuality that the defendant got the sale deedregarding the suit property executed and registered in the name of his wifeRaman Arora vide sale deed No.2012 dated 25.07.2013. The total amount ofsale consideration was paid to Mangat Rai in advance. Possession of theproperty, it is submitted, had been surrendered to Mangat Rai on 31.03.2013.Defendant claimed to be in actual physical possession of the property inquestion. Dismissal of the suit was thus prayed for. 6. Replication to the written statement was not filed by theplaintiff. Following issues were framed by the learned trial Court on thebasis of the pleadings:- 1. Whether plaintiff is entitled to recover Rs.8,50,000/- along withinterest as prayed for ? OPP. 2. Whether suit of the plaintiff is not maintainable? OPD 3. Whether earnest money paid by the plaintiff to the defendantstands forfeited due to breach of the agreement by the plaintiffhimself ?OPD. 4. Relief. 7. Evidence was led by both the parties in support of theirrespective claims/stands. 8. Learned trial Court on considering the evidence on record, factsand circumstances of the case decreed the suit filed by the plaintiff whileobserving that the defendant was not found to be owner in possession of thesuit property on the date of execution of the agreement to sell dated26.02.2013. Execution of the said agreement to sell stood admitted as is thereceipt of the earnest money of Rs.6,25,000/-. In this view of the matter, itis concluded that the plaintiff is entitled to recovery of the said amount. 9. Appeal preferred by the present appellant was dismissed by thethe learned District Judge, Bathinda vide the impugned judgment and decreedated 10.04.2019. Aggrieved therefrom, present appeal has been filed by theappellant-defendant. 10. Sole ground raised by the learned counsel for the appellant isthat it was open to the plaintiff to have filed a suit for recovery at an earlierstage but he did not do so even as he had earlier filed a suit for permanentinjunction to protect his possession. His said suit for permanent injunctionwas dismissed. 10. Sole ground raised by the learned counsel for the appellant isthat it was open to the plaintiff to have filed a suit for recovery at an earlierstage but he did not do so even as he had earlier filed a suit for permanentinjunction to protect his possession. His said suit for permanent injunctionwas dismissed. No suit for specific performance of agreement to sell wasfiled by the plaintiff, who himself failed to arrange the balance amount ofsale consideration. Therefore, he is clearly estopped from seeking refund ofthe amount of earnest money. It is, thus, prayed that this appeal be allowed.Both the impugned judgments and decrees be set aside. Consequentially, suitfiled by the plaintiff-respondent be dismissed. 11. I have heard learned counsel for the appellant at length andhave gone through the file with his assistance. I have also perused thewritten statement filed on behalf of the appellant-defendant, a copy of whichwas produced in Court today. 12. Execution of the agreement to sell dated 26.02.2013 is admittedby the appellant-defendant in this case. Receipt of earnest money ofRs.6,25,000/- by the appellant-defendant from the plaintiff is also not indispute. Learned counsel for the appellant is unable to deny that theappellant while testifying as DW1 has clearly admitted that he was not theowner of the suit property at the time of execution of the agreement to selldated 26.02.2013 and neither had he become owner thereof at the time of thestipulated date for registration and execution of the sale deed. DW1 furtheradmitted that his brother Mangat Rai had instituted a case against himregarding the suit property. Learned trial Court in this situation has rightlyheld that admission of the defendant-appellant in respect to the institution ofthe civil suit by his brother Mangat Rai shows connivance of the defendantwith the other family members, specially in the wake of registration of thesale deed in favour of the defendant’s wife namely Raman Arora. It is, thus,rightly held that the plaintiff is entitled to refund of the earnest moneyalongwith interest @ 6% per annum. 13. Similarly, Learned District Judge, Bathinda has rightlyobserved that there is no bar as per Section 22 of the Specific Relief Act toclaim the refund of the earnest money paid by a party, who is not at fault forthe failure of the transaction. The defendant-appellant is proved on record tobe responsible in executing an agreement to sell which was clearlyunenforceable. 13. Similarly, Learned District Judge, Bathinda has rightlyobserved that there is no bar as per Section 22 of the Specific Relief Act toclaim the refund of the earnest money paid by a party, who is not at fault forthe failure of the transaction. The defendant-appellant is proved on record tobe responsible in executing an agreement to sell which was clearlyunenforceable. Thus, he is not entitled to retain the amount of earnestmoney with him. 14. Both the learned courts below have rendered concurrent findingsof fact against the appellant on a wholesome and proper appreciation ofevidence on record, which warrants no interference. In my consideredopinion, no question of law much less a substantial question of law isinvolved in this appeal. There is no illegality, infirmity or perversity in theimpugned judgment and decree dated 10.04.2019, passed by the learnedDistrict Judge, Bathinda as well as judgment and decree dated 24.07.2018,passed by the learned Addl. Civil Judge (Senior Division), Phul, which callsfor any interference by this Court in second appeal. 15. No other argument has been raised. 16. Judgment and decree dated 10.04.2019, passed by the learnedDistrict Judge, Bathinda as well as judgment and decree dated 24.07.2018,passed by the learned Addl. Civil Judge (Senior Division), Phul are upheld. 17. Appeal is accordingly dismissed with no order as to costs.