Punjab-Haryana High Court
Narinder Kaur (Now Deceased) Through ... vs Jagmeet Singh on 12 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:034982
RSA-1873-2019 (O&M) & 2024:PHHC:034982
CR-5996-2019 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
119
1. RSA-1873-2019 (O&M)
Date of decision: 12.03.2024
NARINDER KAUR (DECEASED) THROUGH LRS ..Appellant
Versus
JAGMEET SINGH ..Respondent
2. CR-5996-2019 (O&M)
NARINDER KAUR (DECEASED) THROUGH LRS ..Petitioner
Versus
JAGMEET SINGH ..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Saurabh Bajaj, Advocate
for the appellant.
Ms. Gurnam Kaur, Advocate
for respondent.
ANIL KSHETARPAL, J(Oral)
CM-5086-C-2019 in RSA-1873-2019
1. The prayer in this application is to condone the delay of 846 days in filing the appeal. It is claimed that late Smt. Narinder Kaur was ailing at the time when the judgment and decree was passed by the First Appellate Court and thereafter, she suffered a major heart attack. She remained under treatment from Post Graduate Institute of Medical Education & Research, Chandigarh, for a long time and ultimately expired on 16.02.2019. It is claimed that late Smt. Narinder Kaur was bed ridden for almost two years and because of her illness, there were financial constraints, which did not permit the family members to file the appeal. No reply to the 1 of 5 ::: Downloaded on - 16-03-2024 07:44:35 ::: Neutral Citation No:=2024:PHHC:034982 RSA-1873-2019 (O&M) & 2024:PHHC:034982 CR-5996-2019 (O&M) -2- application has been filed by the respondent, however, the learned counsel representing the respondent submits that only OPD slips have been produced to prove the treatment. She submits that there is a huge delay of 846 days, which should not be condoned.
2. This Court has considered the submissions of the learned counsel representing the parties.
3. The efforts of the Court should be to decide the case on merits rather than in defaults. This is the case, where the appellant has already died. Some evidence has been produced to prove that late Smt. Narinder Kaur was constantly under treatment from Post Graduate Institute of Medical Education & Research, Chandigarh.
4. Keeping in view the aforesaid facts, the delay of 846 days in filing the appeal is condoned.
5. CM stands disposed of.
RSA-1873-2019
6. With the consent of the learned counsel representing the parties, the appeal is taken on board for final disposal.
7. This is the defendant's regular second appeal against the judgment and decree passed by the First Appellate Court while granting alternative relief to the plaintiff to recover Rs.2,00,000/-, the amount of earnest money along with the interest at the rate of 6% per annum from the date of filing of the suit till its realization.
8. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed.
2 of 5
::: Downloaded on - 16-03-2024 07:44:36 :::
Neutral Citation No:=2024:PHHC:034982
RSA-1873-2019 (O&M) & 2024:PHHC:034982
CR-5996-2019 (O&M) -3-
9. The respondent (plaintiff before the trial Court) filed suit for specific performance of the agreement to sell dated 23.11.2004, alleging that defendant executed an agreement to sell in his favour with respect to the land measuring 4 bighas and 4 biswas on receipt of Rs.1,08,000/- per bigha as earnest money out of total sale consideration of Rs.4,53,600/-. As per the agreement to sell, the sale deed was to be executed on 28.02.2005, on this date, the plaintiff remained present in the office of Sub-Registrar, however, the defendant did not come forward. Thereafter, the plaintiff received notice from the defendant to come in the office of the Sub-Registrar on 06.05.2005 and the plaintiff visited the office of the Sub-Registrar but the defendant did not turn up. The plaintiff also issued notice on 18.05.2005 to the defendant.
10. While contesting the suit, the defendant claimed that the plaintiff was ready and willing to perform his part of the contract and the suit has been filed after a period of long time on 15.05.2007.
11. The trial Court dismissed the suit. The plaintiff filed first appeal. The First Appellate Court on reappreciation of evidence came to a conclusion that the plaintiff has failed to prove that he remained ready and willing to perform his part of the contract, however, the First Appellate Court held that the plaintiff is entitled to claim refund of earnest money of Rs.2,00,000/-. The correctness of decree passed by the First Appellate Court is challenged in this appeal.
12. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.
13. The learned counsel representing the appellant submits that the Appellate Court has erred in ordering refund of earnest money after 3 of 5 ::: Downloaded on - 16-03-2024 07:44:36 ::: Neutral Citation No:=2024:PHHC:034982 RSA-1873-2019 (O&M) & 2024:PHHC:034982 CR-5996-2019 (O&M) -4- recording finding that the plaintiff was not ready and willing to perform his part of the contract. He submits that it is not necessary in the agreement to sell to recite that if the plaintiff fails to perform his part of the contract, the amount of earnest money shall stand forfeited. He submits that this is inherent in the agreement to sell.
14. Per contra, the learned counsel representing the respondent submits that in absence of specific agreement to sell entitling the defendant to forfeit the amount of earnest money, the First Appellate Court has correctly passed the decree.
15. This Court has considered the submissions of the learned counsel representing the parties.
16. The earnest money at the time of execution of agreement to sell is paid to ensure that the parties perform their part of the contract. Such earnest money is a payment towards security for performance of the contract on the part of the proposed buyer. Once, the buyer fails to prove that he was ready and willing to perform his part of the contract, the amount of earnest money is liable to be forfeited.
17. In fact, this issue has been examined in detail by this Court in RSA-4920-2014, titled as "Ran Singh and others Vs. M/s Capex Projects Pvt. Ltd.", decided on 28.03.2019 and in RSA-1915-2016, titled as "Satnam Singh (since deceased) through his legal representative Vs. Paramjit Singh and others", decided on 19.04.2022.
18. A Larger Bench of the Supreme Court in Maula Bux v. Union of India (1969) 2 Supreme Court Cases 554, held that the earnest money is liable to be forfeited for breach of contract because it is the amount of 4 of 5 ::: Downloaded on - 16-03-2024 07:44:36 ::: Neutral Citation No:=2024:PHHC:034982 RSA-1873-2019 (O&M) & 2024:PHHC:034982 CR-5996-2019 (O&M) -5- penalty, which the buyer undertakes to forego once he fails to perform his part of contract.
19. Keeping in view the aforesaid discussion, the appeal is allowed. The judgment and decree passed by the First Appellate Court ordering refund of earnest money along with the interest is not sustainable. Hence, the same is set aside.
CR-5996-2019
20. In view of the reversal of the judgment and decree passed by the First Appellate Court, the revision petition, which has been filed against the orders passed by the Executing Court is rendered infructuous because the execution itself is not maintainable.
21. Disposed of as infructuous.
22. All the pending miscellaneous applications, if any, are also disposed of.
March 12th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:034982
5 of 5
::: Downloaded on - 16-03-2024 07:44:36 :::