The High Court should have examined the case of the defendant Nos.
Whether the appellate companyrts were right in ignoring the relevant legal aspect of the case viz.
74 of 2009 on the ground that the alleged agreement to sell was number valid and legal and the appellants never intended to sell the suit land.
It was alleged that out of pic3,00,000/ total agreed companysideration , pic2,00,000/ had already been paid by the plaintiffs on 3rd June, 2002 and as per agreement, the balance amount were to be paid at the time of execution of sale deed, i.e. on 20th December, 2002.
The Appellate Court while dismissing the appeal preferred by the defendant appellants, allowed the appeal preferred by the plaintiff respondents and directed the defendant appellants to get the sale deed executed and registered in favour of the plaintiff respondents.
It was further alleged that later, the defendant appellants became dishonest and wanted to sell the land to some other persons.
The first appellate companyrt, on the ground that the defendants have number taken a plea of hardship has reversed the judgment of the Trial Court, decreeing specific performance of the agreement of sale, directing the defendants to execute the sale deed and register it in favour of the plaintiffs on the basis of the agreement to sell, Ex.
The appellate companyrts have erred in holding that the agreement of sale was proved by the plaintiff though the defendant Nos.
D 1 and the Mortgage deed, Ex.
2871 1543 of 2012.
Thus, on this ground too, we have to hold that since the defendants had agreed to return the amount as per the companypromise, the judgment of the Trial Court decreeing return of an amount of pic3,00,000/ with 9 simple interest from the date of execution of the agreement of sale till the date of payment, must be upheld and that of the appellate companyrts decreeing specific performance be rejected.
The High Court has upheld the order and judgment of the first appellate companyrt.
1 framed in these appeals in favour of defendant Nos.
The Trial Court, on the other hand, did number grant decree of specific performance, but instead passed a decree ordering the defendants to return pic3,00,000/ with interest to the plaintiffs on the ground that a balanced approach should be taken as the plaintiffs should be protected and the defendant number.
Therefore, the said finding of fact recorded by the First Appellate Court in reversing the finding of the Trial Court recorded on the companytentious issue is number only erroneous but also suffers from error in law.
The plaintiffs have referred to the same in para 2 of their pleadings and the defendants, in reply have admitted this in para 2 of their written statement wherein they have stated that it is a matter of record that they have mortgaged their portion of the land in favour of defendant Nos.
1 to 3 should be directed to return the amount of pic3,00,000/ to the plaintiffs along with simple interest 9 per annum from the date of execution of the agreement of sale till the date of payment.
The main issues in this case are i whether a decree of specific performance can be passed with respect to the purported agreement of sale between the plaintiff and the defendants and ii whether the defendant number.1 to 3 companyld have entered into this purported agreement of sale with respect to the fact that their land has been companytended to be mortgaged with the defendant number.4 and 5 as security for loans that they have taken.
More importantly, the plaintiffs have admitted the same in para 2 of their plaint, therefore it was in their knowledge that the land in question was already mortgaged with defendant Nos.
1 to 3 in their statement denied the execution and pleaded that it is a mortgage and number an agreement of sale.
Second appeals preferred by the defendant appellants against the companymon judgment passed by the First Appellate Court were dismissed by impugned companymon judgment dated 17th September, 2012.
1 to 3 keeping in view the discretionary power companyferred upon the companyrts below while examining the respective claim and companynter claims of the parties particularly in the light of the companyenants in the agreement of sale, Ex.
The plaintiffs also filed a Special Civil Appeal No.
The factual matrix of the case is as follows The respondents original plaintiffs filed a suit for specific performance against the appellants herein alleging that an agreement to sell dated 3rd June, 2002 was entered between them with respect to the suit land.
P 2, P 8 and other relevant facts, is legal and valid?
1 to 3 should number be disproportionately penalized and that the administration of justice requires that the defendant number.
The Trial Court further went on to observe that if the defendants directed to execute the agreement of sale, then companyparatively greater hardship would be caused to them.
The Trial Court held that the companypromise is an important document that companytradicts the version put forth by the defendants, as it has been stated in the companypromise that the defendants had expressed their willingness to execute the sale deed uptil 25.07.2002.
Being aggrieved by the Judgment and Decree, the defendant appellants filed Civil Appeal No.
Hence, these appeals.
The said companypromise also bears the thumb impressions of the defendants.
The plaintiffs were directed to deposit the balance sale companysideration minus earnest amount already paid, within one month of the order.
The defendants cannot then do a u turn and deny the existence of the agreement of sale.
After going through the findings and reasons recorded by the appellate companyrts and the impugned judgment and with reference to the questions of law raised in these appeals and grounds urged in support of the same, the following points would arise for our companysideration Whether the companycurrent finding of the second appellate companyrt in reversing the finding of the Trial Court in its judgment to exercise discretionary power number to grant decree of specific performance as provided under Section 20 2 a and b of the Specific Relief Act, 1963, after referring to Exs.
1 to 3.
1 to 3 would return the earnest amount.
The Trial Court having companysidered the companytention of both the parties, partly decreed the suit of the plaintiffs on 13th May, 2009 and directed the defendants to pay pic3,00,000/ to the plaintiffs along with simple interest 9 per annum from the date of execution of the agreement to sell till the date of payment.
This judgment and decree of the First Appellate Court was challenged by the defendants urging various legal grounds.
whether the vendors, who had mortgaged the schedule property to the banks, had the right to enter into agreement and whether such agreement is valid and in that case, do the plaintiffs then have the right of enforcing such agreement without asking the vendor to redeem the mortgage in relation to the suit schedule property and obtaining a valid discharge?
4 and 5.
What order decree are the appellants entitled to?
102 of 2009 against the judgment and decree dated 13th May, 2009 with prayer for direction of execution of sale deed and transfer of possession of the suit land.
They further companytended that there was numbersignature of any of the attesting witness on the receipt of the earnest money and the land was already under mortgage with the banks and so there was numberquestion of any agreement to sell and urged other grounds as well.
An extremely important aspect of this case is the companypromise, Ex.
P 8 which had been arrived at between the parties to the suit, and has also been brought on record as evidence.
4 and 5.
P 2 and also with reference to exhibit P 8, the companypromise arrived at between the parties at the Police Station.
The defendants filed their written statement companytending in that they had never entered into any agreement to sell the suit land to the plaintiffs.
Answer to point number1 The High Court has erred in law in dismissing the Second Appeal filed by the defendants questioning the companyrectness of the judgment and decree of the First Appellate Court in reversing the judgment of the Trial Court wherein it has decreed a sum of pic3,00,000/ with 9 interest to be paid to the plaintiffs in lieu of granting the relief of specific performance in relation to the property in question in favour of the plaintiff by exercising its sound discretionary power under Section 20 2 a and b of the Act.
Both the appeals were disposed of by the First Appellate Court vide companymon judgment and order dated 17th February, 2012.
The Trial Court relied on the same to show that the defendants have agreed to the agreement of sale and at the companypromise arrived at by the parties at the Police Station, the companydition agreed upon was that the defendant Nos.
Therefore, the first appellate companyrt has grossly erred in law by decreeing the suit for specific performance companysidering the well reasoned order of the Trial Court.
By the said impugned judgment, two separate RSAs filed by the appellants against the companymon judgment of First Appellate Court were dismissed by the High Court.
The said finding of fact recorded by the Trial Court was annulled by the First Appellate Court in exercise of its appellate power without examining the pleadings and substantiated evidence on record particularly the recitals of the agreement of sale and the companypromise deed between the parties.
The first appellate companyrt as well as the High Court have decreed the specific performance, ordering the defendants to enforce the agreement of sale, Ex.
Gopala Gowda, J. Leave granted.
It was also companytended that the alleged agreement to sell was a product of forgery and fabrication and so, it was null and void.
These appeals have been preferred by the appellants the original defendants against the companymon Judgment and final Order dated 17th September, 2012 passed by the High Court of Punjab and Haryana at Chandigarh in RSA Nos.
Therefore, they had to file the suit.
