Rekha Mittal, J. - (1.) THE present regular second appeal has been directed against the judgment and decree dated 10.05.2013 passed by the Additional District Judge, Ludhiana, accepting the appeal of the appellant/respondent and allowing the relief of specific performance of agreement to sell dated 01.03.2001 by modification of the judgment and decree dated 03.05.2010 passed by the learned trial Court.
(2.) HARMINDER Singh, plaintiff/respondent filed the suit for possession by way of specific performance of agreement to sell dated 01.03.2001 in regard to land measuring 08 kanals 0 marla, detailed in the head note of the plaint, on the premise that the defendant/appellant agreed to sell the aforesaid land for a sum of Rs. 1,90,000/ -, received Rs. 50,000/ - towards earnest money at the time of the agreement, another amount of Rs. 30,000/ - on 05.05.2001, but failed to execute the sale deed upto 01.07.2002. It is averred that the plaintiff always remained ready and willing to perform his part of the agreement, remained present in the office of the Sub Registrar along with balance sale consideration on 01.07.2002, served legal notice upon the defendant to execute the sale deed but the defendant failed to discharge his obligation under the agreement. He also made an alternative prayer for recovery of the amount along with interest. The appellant/defendant filed the written statement contesting the case of the plaintiff. The land in question is jointly owned and possessed by the defendant along with his brother Gurjunt Singh and as such, he was not entitled to enter into the alleged agreement to sell of specific killa number without consent of his brother. The plaintiff, who is a money lender has no licence to carry out money lending business and the suit is barred by his own act and conduct. He specifically denied the execution of agreement to sell and receipt of earnest money of Rs. 50,000/ -. He further denied his signatures on the agreement to sell with the submissions that if his signatures are proved; the same would have been obtained by way of fraud and misrepresentation. The defendant took a loan from the plaintiff and agreed to return the same within one year, returned the loan amount and entry in this regard was made in the diary of the defendant in the handwriting and signatures of the plaintiff.
(3.) THE controversy between the parties led to framing of following issues: - 1. Whether the defendant executed agreement to sell dated 01.03.2001 in favour of plaintiff and received Rs. 80,000/ - as earnest money? OPP 2. Whether plaintiff is entitled to possession by way of specific performance of contract dated 01.03.2001? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the alleged agreement is paper transaction as the security for the repayment of the loan? OPD;