Punjab-Haryana High Court
Nirmal Alias Turmal vs M/S Advance Engineers & Developers And ... on 19 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:039198
RSA-5846-2016 (O&M) 2024:PHHC:039198
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
108
RSA-5846-2016 (O&M)
Date of decision: 19.03.2024
NIRMAL ALIAS TURMAL (DECEASED) THROUGH LRS
..Appellant
Versus
M/S ADVANCE ENGINEERS & DEVELOPERS AND ANR.
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. S.S. Swaich, Advocate for the appellant.
Mr. Saurabh Bhardwaj, Advocate
and Mr. Gaurav Thakur, Advocate
for Mr. Sumeet Kaul, Advocate
for respondent No.1.
Mr. Govind Bhardwaj, Advocate
Mr. P.K. Shukla, Advocate
and Mr. Sunil Kumar Pandey, Advocate
for respondent No.3.
ANIL KSHETARPAL, J(Oral)
1. After hearing arguments on 29.01.2024, the following order was
passed:-
"1. In this regular second appeal, the plaintiff assails
the correctness of the concurrent judgments passed by
both the Courts below while dismissing his suit for the
grant of decree of declaration to the effect that he is the
owner in possession of the land measuring 9 kanals and
6½ marlas by annulling the sale deed dated 17.03.2008,
executed by him in favour of the defendants.
2. In order to comprehend the issue involved in the
present case, the relevant facts, in brief, are required to
be noticed.
3. The plaintiff was the owner of the land measuring
9 kanals and 6½ marlas being half share of the land
measuring 18 kanals and 13 marlas. He sold the same in
favour of the defendants vide sale deed dated 17.03.2008,
for an amount of ₹1,27,63,600/- which was sought to be
paid by four different cheques. Out of the aforesaid four
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Neutral Citation No:=2024:PHHC:039198
RSA-5846-2016 (O&M) 2024:PHHC:039198
cheques, two were honoured on presentation, whereas the
remaining two were dishonoured. The plaintiff claims
that on account of non-payment of the amount, the sale
deed is required to be annulled. The defendants, while
contesting the suit, claim that the full and final payment
has been made in cash and the plaintiff did not return the
cheques. Both the Courts below have dismissed the suit.
4. The learned counsel representing the appellant
submits that though the sale deed cannot be annulled,
however, the appellant is entitled to payment of the
remaining payment along with interest. The learned
counsel further submits that both the Courts below have
held that the defendants have failed to prove the payment
of the remaining amount, therefore, the sale deed is
required to be annulled.
5. This Court has considered the submissions of the
learned counsel for the appellant, however, finds no
substance therein. It is admitted that by virtue of the sale
deed, the rights were transferred in favour of the
defendants and the payment of the amount was not a
condition precedent for transfer of the title. Section 55 of
the Transfer of Property Act, 1882, does not provide that
if payment of the sale consideration is not paid, the sale
would be come redundant.
6. Alternatively, the learned counsel representing the
appellant submits that the defendants have failed to prove
that the remaining payment of ₹75,63,600/- has not been
paid and, therefore, the Court should, at least, pass a
decree for recovery of the amount by moulding the relief
under Order VII Rule 7 of the Code of Civil Procedure,
1908.
7. On the other hand, the learned counsel
representing the applicant-bank submits that the property
has been mortgaged with the Noble Cooperative Bank
Limited, which has the first charge. The proceedings
under the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002,
have been initiated against the defendants.
8. The learned counsel representing the defendants
prays for a short adjournment on the ground that Mr.
Sumit Kaul, Advocate, representing the defendants, was
unable to come from Delhi.
9. Though there is no justification, however, in the
interest of justice, adjourned to 01.02.2024. To be listed
in the urgent list.
10. No further request, written or oral, for grant of an
adjournment, shall be entertained."
2. Thereafter, the case was taken up on 23.02.2024 and was
adjourned to today.
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3. The matter has been once again heard.
4. The learned counsel representing respondent No.1 failed to put-
forth any significant arguments.
5. The learned counsel representing the Noble Cooperative Bank
submits that in absence of prayer for refund of the earnest money, the Court
should not pass such order.
6. This Court has considered the submissions and drawn the
attention of the learned counsel representing respondent No.3, to Section 22
of the Specific Relief Act, 1963. He has read over the same and thereafter,
he failed to make any submissions.
7. Keeping in view the aforesaid facts, the matter is remanded
back to the trial Court only to decide "whether defendants have failed to pay
the remaining amount of Rs.75,63,600/- or not?" The trial Court will frame a
distinct and separate issue on the aforesaid aspect and call upon the parties to
lead evidence.
8. Disposed of accordingly.
9. This order shall constitute a limited remand only to decide the
aforesaid issue.
10. The parties through their learned counsel are directed to appear
before the trial Court on 19.04.2024.
11. All the pending miscellaneous applications, if any, are also
disposed of.
March 19th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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