Ram Singh Vs. Ram Sarup - Court Judgment

Excerpt:
- l.n. mittal, j.1. this is second appeal by ram singh plaintiff.2. appellant filed suit against defendant ram sarup for possession of suit land by way of specific performance of agreement to sell dated 30.5.2005 regarding 5 kanals land in suit along with relief of permanent injunction. the plaintiff alleged that the defendant agreed to sell the suit land to the plaintiff at the rate of rs. 1,75,000/- per acre and received rs. 40,000/- as earnest money at the time of agreement dated 30.5.2005. sale deed was stipulated to be executed on 30.10.2005. however, since it was sunday on 30.10.2005 and saturday on 29.10.2005, both being holidays, the plaintiff remained present in the office of sub registrar on 28.10.2005 as well as on 31.10.2005 to get the sale deed executed and registered in terms of the agreement but the defendant failed to turn up. the plaintiff also served notice dated 8.12.2005 on the defendant but it did not evoke any response from the defendant. the defendant thus committed breach of the agreement.3. the defendant, inter alia, pleaded that there was separate oral agreement between the parties to the effect that price of the land shall be rs. 4,80,000/- per acre and separate sale consideration of rs. 1,60,000/- for the construction existing in the suit land. the impugned agreement was obtained by fraud by the plaintiff. the defendant stated that on 31.10.2005 both the parties were present in the office of sub registrar but there was dispute regarding the quantum of sale consideration. the defendant also got his presence recorded. the defendant is still ready and willing to execute the sale deed for the aforesaid consideration as pleaded by the defendant.4. learned civil judge (junior division), hisar vide judgment and decree dated 7.2.2008 decreed the plaintiff's suit. however, learned district judge, hisar vide impugned judgment and decree dated 3.3.2009 passed in first appeal preferred by the defendant modified judgment and decree of the trial court and decreed the plaintiff's suit for recovery of rs. 80,000/- with interest at the rate of 9% per annum from the date of institution of suit till recovery. feeling aggrieved, the plaintiff has preferred the instant second appeal.5. i have heard learned counsel for the parties and perused the case file.6. learned counsel for the appellant pointed out that the lower appellate court has passed decree for recovery of money instead of decree for specific performance of the agreement on the ground that the defendant would face hardship if specific performance of the agreement is decreed because the defendant has his residential dhani in the suit land. learned counsel for the appellant also contended that no such plea was raised by the defendant in the written statement and therefore, this plea could not be raised in first appeal. in support of this contention, learned counsel for the appellant has relied upon judgment of hon'ble supreme court in the case of a. maria angelena (dead) and ors. v. a.g. balkis bee : 2002 (9) scc 597. learned counsel for the respondent could not counter the aforesaid contention of learned counsel for the appellant nor could cite any judgment to the contrary. hon'ble supreme court has laid down in the case of a. maria (supra) that plea of hardship has to be raised by the defendant at the earliest stage in written statement and cannot be allowed to be raised at the appellate stage or before the supreme court. in the instant case admittedly the defendant did not raise plea of hardship in the written statement and therefore the lower appellate court gravely erred in declining specific performance of the agreement to the plaintiff on the ground of alleged hardship to the defendant. in any event, there is neither any pleading nor any evidence to depict that the defendant would face any hardship if specific performance of the agreement is ordered.7. in addition to the aforesaid, the defendant in the written statement rather pleaded that he was still ready to execute the sale deed of the suit property in favour of the plaintiff and only dispute is regarding the amount of sale consideration. this plea of the defendant in the written statement would completely rule out alleged hardship of the defendant.8. learned counsel for the defendant-respondent contended that according to terms of the agreement, if the defendant fails to comply with the agreement, the plaintiff would be entitled to double the earnest money and therefore, the lower appellate court has rightly decreed the suit of the plaintiff for recovery of double the earnest money and the plaintiff is not entitled to specific performance of the agreement. the contention although apparently attractive is in fact devoid of substance. learned counsel for the appellant contended that even if the agreement contains said term, the plaintiff vendee is still entitled to seek relief of specific performance of the agreement. in support of this contention, learned counsel for the appellant has relied on two judgments of this court namely gurmail singh and ors. v. amrit singh and anr. 1999 (3) ljr 420 and smt. mohini kapoor and ors. v. deepak uppal and ors. 2006 (1) plr 584. in both these judgments it has been categorically laid down that any clause in the agreement for payment of damages or double amount of the earnest money would not be sufficient to dis-entitle the vendee to seek relief of specific performance of the agreement. no judgment to the contrary has been cited by learned counsel for the respondent.9. in addition to the aforesaid, the agreement also contains term that if vendor fails to perform his part of the agreement, the vendee shall be entitled to seek specific performance of the agreement although there is clerical mistake in the agreement regarding the said term by mentioning that if the vendor fails to perform his part of the agreement, the vendor shall be entitled to seek relief of specific performance. apparently this is a clerical mistake and in fact term of the agreement is to the effect that if the vendor fails to perform his part of the agreement, the vendee shall be entitled to seek enforcement thereof.10. in view of the aforesaid discussion, i find that following substantial question of law arises in the instant second appeal:whether the finding of the lower appellate court that the defendant would face hardship if specific performance of the agreement is decreed and whether the grant of relief of recovery of double the earnest money by the lower appellate court is illegal and unsustainable?11. the necessary consequence of the discussion made hereinbefore is that the aforesaid substantial question of law has to be answered in favour of the appellant. the lower appellate court gravely erred in modifying the judgment and decree of the trial court and granting relief of recovery of money only to the plaintiff although the plaintiff is entitled to the relief of specific performance of the agreement. accordingly, judgment and decree of the lower appellate court are patently illegal and unsustainable.12. for the reasons recorded hereinabove, the instant second appeal is allowed and impugned judgment and decree dated 3.3.2009 passed by learned district judge, hisar are set aside and judgment and decree dated 07.2.2008 passed by learned civil judge (junior division), hisar (as corrected by order dated 26.2.2008) are restored with costs throughout.13. the plaintiff shall deposit the balance sale consideration if not already deposited within two months from today.