ARUN PALLI, J. - (1.) SUIT filed by the plaintiff, seeking specific performance of the agreement of sale, was partly decreed by the trial Court and a decree for recovery of Rs.21,00,000/ - from the defendants along with interest @ 12% per annum was passed. Appeal filed against the said decree by the plaintiff was accepted and vide judgment and decree dated 23.01.2014, suit of the plaintiff was decreed, as prayed for. That is how, the defendants are before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.
(2.) IN short, the case set out by the plaintiff was that an agreement dated 03.01.2006 was executed by the defendants in favour of the plaintiff for sale of land, measuring 48 kanals, situated in Village Dhobra, Tehsil Pathankot. Suit land was agreed to be sold @ Rs.6.50 lakhs per killa and an amount of Rs.21,00,000/ - were paid by way of earnest money. Balance sale consideration was to be paid at the time of execution of the sale deed. And the date fixed for this purpose was 30.06.2006. It was pleaded that plaintiff reached the Tehsil office Pathankot on 30.06.2006 during working hours and he was duly possessed of the balance sale consideration and sufficient funds to defray the necessary expenses. However, defendants failed to turn up. Plaintiff left with no alternative got an affidavit typed in this regard. However, at the end of the day, the defendants suddenly appeared but refused to execute the sale deed. That being so, plaintiff got his affidavit attested from Executive Magistrate, Pathankot who also functions as Sub Registrar. It was maintained that the plaintiff has always been and was even now ready and willing to perform his part of the contract. Thus, the suit. In defence, defendants pleaded, inter alia, that the agreement in question i.e. dated 03.01.2006 (Ex.P1) was executed by the defendants. However, it was denied that the plaintiff had paid a sum of Rs.21,00,000/ - to the defendants as earnest money at the time of execution of the agreement. In fact, plaintiff only paid a sum of Rs.13,50,000/ -, as he told the defendants that he actually intends to sell the suit land to some other person and, therefore, let a sum of Rs.21,00,000/ - be mentioned as having been paid by way of earnest money by him so that he could further earn some money. This version was believed due to cordial relations between the parties. It was averred that the plaintiff happened to be a property dealer and thus, never intended to purchased the land himself. Sale deed was to be executed on payment of sum of Rs.25,50,000/ - i.e. the balance sale consideration. It was denied that the plaintiff reached the Tehsil premises on 30.06.2006 with balance sale consideration. It was also denied that he got an affidavit attested. Rather, it was maintained that the defendants attended the office of Sub Registrar, Pathankot but the plaintiff never turned up, as he failed to arrange the balance sale consideration and the amount required to incur expenses on the execution and registration of the sale deed.
(3.) ON an analysis of the matter in issue and the evidence on record, trial Court arrived at a conclusion that admittedly the agreement dated 03.01.2006 (Ex.P1) was executed between the parties. Plaintiff had successfully proved that he had paid an amount of Rs.21,00,000/ - to the defendants by way of earnest money. Further, plaintiff had placed on record his duly sworn affidavit dated 30.06.2006 (Ex.P2). It was categorically stated in the said affidavit that he remained present from 9:00 am till the closing of the Tehsil office but the defendants did not turn up to get the sale deed executed. But at the margin of the said affidavit (Ex.P2) a note was given that the defendants were present but they refused to get the sale deed executed. It was observed that said affidavit (Ex.P2) was attested by the Executive Magistrate, Pathankot at serial No.942/RC dated 30.06.2006. On the contrary, defendants also produced on record their affidavit (Ex.D1), attested at serial No.939/RC dated 30.06.2006. Thus it was observed, though both the parties were present at Tehsil Complex Pathankot but yet the sale deed was not executed for the reasons best known to them. Therefore, conduct of both the parties become doubtful and suspicious. On a further analysis, it was observed that affidavit of the defendants (Ex.D1) was entered at serial No.939/RC on 30.06.2006 and the affidavit of the plaintiff was entered at serial No.942/RC, on the same day, that showed that the defendants got their presence marked prior to the plaintiff and he reached the Tehsil Complex after the defendants. Still further, plaintiff had claimed in his affidavit (Ex.P2) that he remained present at Tehsil Complex Pathankot from 9:00 am to 5:00 pm, whereas, on the same day i.e. 30.06.2006, he himself had withdrawn a sum of Rs.21,00,000/ - from Canara Bank, Begowal, which was at a distance of about 30 kilometers from Pathankot. Thus, conduct of the plaintiff showed that he could not reach the Tehsil Complex Pathankot on 30.06.2006 in time. A reference was made to the decision of Hon'ble the Supreme Court reported as Jai Narain Parasrampuria (dead) and others v. Pushpa Devi Saraf and others, 2007(1) CCC page 121 to observe that conduct of both the parties showed that they were trying to abuse the process of the court. Accordingly, it was held that plaintiff was not entitled to the decree for specific performance, as prayed for. Since he had successfully proved that he had paid an amount of Rs.21,00,000/ - to the defendants by way of earnest money, a decree for recovery for the said amount along with interest was passed.;