IMPORTANT POINT
Agreement to sell--Contention that in the case of refusal of specific performance, where the plaintiff has also made an alternative prayer for refund of the sale consideration, the plaintiff should have filed a suit for recovery and the suit for specific performance with alternative prayer was not maintainable.

Rakesh Kumar Jain, J.

1. The defendant is in second appeal against the judgment and decree of the Courts below by which alternative relief sought by the plaintiff in terms of recovery of sale consideration of Rs.1,60,000/- has been decreed along with pendente lite and future interest thereon @ 6% per annum till the date of its actual realization.

2. The plaintiff filed the suit for possession by way of specific performance of an agreement to sell and, in the alternative, prayed that if specific performance is refused by the Court, the amount of sale consideration advanced by the plaintiff to the defendant may be ordered to be returned with interest. The case set up by the plaintiff is that the defendant entered into an agreement to sell with him on 13.03.1995 (Ex.P5) to sell house bearing No.594-A, Kanshi Nagar, Model Town, Ambala City, measuring 4 Marlas [for short "property in dispute"] for a total sale consideration of Rs.1,60,000/-. The defendant had received Rs.1,25,000/- against receipt (Ex.P2) and agreed to pay remaining sale consideration of Rs.35,000/- before the Sub Registrar at the time of execution and registration of sale deed on 10.08.1995. However, the defendant did not turn up on the date fixed for the execution and registration of sale deed and after about 8-9 months, he again approached the plaintiff for the purpose of borrowing some money. On his request, the remaining sale consideration of Rs.35,000/- was handed over to him by the plaintiff and another agreement was executed on 10.09.1996 (Ex.P1) alongwith a General Power of Attorney (Ex.P3) and a Will (Ex.P4), on the same day by the defendant in favour of the plaintiff. The defendant had promised the plaintiff to refund the total amount of Rs.1,60,000/- up to 30.11.1996, but he became dishonest and had issued a notice dated 11.12.1996 to the plaintiff by which he claimed Rs.10,000/- along with interest from him. The defendant failed to abide by his contractual obligation which ied to the issuance of a registered notice dated 17.03.1997 (Ex.P8) against postal receipt (Ex.P9), but despite that the defendant did not come forward to execute the sale deed, hence the suit was filed by the plaintiff.

3. In his written statement, the defendants stand was that he had borrowed a sum of Rs. 10,000/- from the plaintiff as he was in dire need of money, but he could not return it except the interest and as the plaintiff was exerting pressure upon him either to return the amount immediately with interest or to execute General Power of Attorney regarding the property in dispute, the defendant had to execute General Power of Attorney (Ex.P3) and Will (Ex.P4) in his favour. He also alleged that the plaintiff had obtained his signatures on certain blank papers which have been misused by him by converting them into agreements to sell (Ex.Pl and Ex.P5). He further alleged that he had already returned amount of Rs. 10,000/-, but the plaintiff did not return the blank signed papers and had rather threatened him that he would transfer the property in dispute to someone else on the basis of General Power of Attorney which prompted the defendant to cancel it vide notice dated 11.12.1996.

4. The plaintiff filed replication and on the basis of the pleadings of the parties, issues were framed by the Trial Court on 27.03.1998. The plaintiff examined Bhupinder Singh, Deed-Writer as PW1, Dalip Chawla, attesting witness to the agreement to sell as PW2 and himself appeared as PW3, whereas the defendant moved an application (Ex.Dl) to the administrative head of the plaintiff, whose reply is Ex.D2. Then he moved other applications (Ex.P3 & Ex.P4) and also tendered intimation by the senior colleague of the plaintiff as Ex.D5. The letter cancelling the General Power of Attorney was tendered as Ex.D6 and notice issued to the plaintiff about cancellation of the General Power of Attorney as Ex.D7.

5. The Courts below have concurrently held that the agreement executed by the defendant in f