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
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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.
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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
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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
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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
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