Yatender vs Dharamveer
2022 Latest Caselaw 16329 P&H

                            IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                           111                                    RSA No.904 of 2020 (O&M)
                                                                  Reserved on : 07.12.2022
                                                                  Date of Decision: 09.12.2022


                           Yatender                                                          ....Appellant

                                                              VERSUS

                           Dharamveer                                                      ....Respondent

                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                           Present :    Mr. Ajay Ghanghas, Advocate for the appellant.

                           ALKA SARIN, J.

The present appeal has been preferred by the defendant-

appellant against the impugned judgments and decrees dated 07.08.2018 and

02.07.2019 passed by the Trial Court and the lower Appellate Court

respectively whereby the suit for specific performance filed by the plaintiff-

respondent has been decreed and the appeal of the defendant-appellant stands

dismissed.

The brief facts relevant to the present lis are that the parties

executed a registered agreement to sell dated 05.08.2013 whereby the

defendant-appellant agreed to sell to the plaintiff-respondent agricultural land

measuring 04 kanals 11 marlas (91/325 share) out of 16 kanals 04 marlas

forming part of Rect. No.91, Killa No.6/1/2 (4-19), 15/1/1 (3-16), 4/2/1 (2-2),

7/1/1 (5-8) situated within the revenue estate of village Dayalpur, Tehsil

Ballabgarh, District Faridabad. The total sale consideration was fixed at

Rs.34,12,500/- out of which the defendant-appellant received an amount of

Rs.27,20,000/- from the plaintiff-respondent as a part payment/earnest

money on the same date in the presence of witnesses and also issued a JITENDER KUMAR 2022.12.09 16:14 I attest to the accuracy and integrity of this order/judgment.

Chandigarh separate receipt in favour of the plaintiff-respondent. The sale deed was to be

executed on or before 04.08.2014. On 03.08.2014 the plaintiff-respondent

approached the defendant-appellant and requested him for execution of the

sale deed and the defendant-appellant assured the plaintiff-respondent that he

would appear on 04.08.2014 before the Sub-Registrar Ballabgarh. However,

it is alleged that on 04.08.2014 the defendant-appellant did not come present

though the plaintiff-respondent kept waiting for him along with the balance

sale consideration and other expenses. The defendant-appellant also did not

reply to a legal notice sent by the plaintiff-respondent. As such, the plaintiff-

respondent instituted the suit for specific performance of the agreement to

sell as well as for the relief for permanent injunction. A prayer in the

alternative for recovery of Rs.27,20,000/- already paid by the plaintiff-

respondent to the defendant-appellant as advance earnest money/part

payment and liquidated damages suffered by him with interest @ 18% p.a.

was also made.

Upon notice the defendant-appellant filed a written statement

denying to have ever executed any agreement to sell in favour of the

plaintiff-respondent or receiving any earnest money. The receipt of any legal

notice was also denied and it was alleged that under the garb of the present

suit the plaintiff-respondent wanted to grab his property and that the plaintiff-

respondent had played fraud upon him to grab the suit land.

On the basis of the pleadings of the parties the followings issues

were framed :

1. Whether the plaintiff is entitled for specific performance of agreement to sale dated 05.08.2013? OPP

JITENDER KUMAR 2022.12.09 16:14 I attest to the accuracy and integrity of this order/judgment.

Chandigarh

2. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP

3. Whether the present suit is not maintainable? OPD

4. Whether the plaintiff has no locus standi to file the present suit? OPD

5. Whether the plaintiff has not approached the court with clean hands? OPD

6. Whether the plaintiff is estopped by his own act and conduct? OPD

7. Relief.

Vide judgment and decree dated 07.08.2018 the Trial Court,

based on the pleadings of the parties and the evidence on the record, decreed

the suit of the plaintiff-respondent. Aggrieved by the said judgment and

decree, an appeal was preferred by the defendant-appellant. However, vide

judgment and decree dated 02.07.2019 the said appeal was dismissed. Hence,

the present regular second appeal.

It is argued by learned counsel for the defendant-appellant that

the Courts below have erred in decreeing the suit of the plaintiff-respondent.

According to counsel, the parties were known to each other and that the

defendant-appellant had borrowed an amount of Rs.20,00,000/- from the

plaintiff-respondent as a friendly loan and at that time, on the asking of the

plaintiff-respondent, the agreement to sell in question was executed as a

security. As per counsel, when the defendant-appellant wanted to return the

said amount but the plaintiff-respondent refused to accept the same as he had

his eyes on the suit property and that since no agreement to sell was ever

executed nor any earnest money was received, there was no occasion for

executing any sale deed regarding the suit property.

I have heard learned counsel for the defendant-appellant. JITENDER KUMAR 2022.12.09 16:14 I attest to the accuracy and integrity of this order/judgment.

Chandigarh The facts of the case show that an agreement to sell dated

05.08.2013 was executed regarding the suit property. The Courts below have

found that there was readiness and willingness on the part of the plaintiff-

respondent to get the sale deed executed in his favour while the defendant-

appellant was not ready and willing to perform his part of the contract. There

is nothing on the record to show that the plaintiff-appellant did not have

sufficient means to perform his part of the agreement to sell. The story of the

defendant-appellant having taken any loan from the plaintiff-respondent has

not found favour with the Courts below in the absence of any cogent

evidence regarding the same. The agreement to sell in the present case is a

registered document. The said agreement to sell and the receipt have been

held to be fully proved. It is well settled that oral evidence cannot be used to

disprove a written document. Further, there is no evidence on the record to

establish any fraud having been played upon the defendant-appellant.

In view of the discussion above, I do not find any illegality or

infirmity in the concurrent findings of fact recorded by the Courts below. No

question of law, much less substantial question of law, arises in the present

regular second appeal. The appeal is accordingly, dismissed. Pending

applications, if any, also stand disposed off.

Dismissed.

                                                                                       ( ALKA SARIN )
                           09.12.2022                                                      JUDGE
                           jk

NOTE : Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

JITENDER KUMAR 2022.12.09 16:14 I attest to the accuracy and integrity of this order/judgment.

Chandigarh