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2014 Supreme(P&H) 1052
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
RSA No.800 of 2013 (O&M)
Lakhbir Singh
v.
Darshan Singh & Anr.
{Decided on 11/03/2014}
For the Appellant:Mr. L.S. Sidhu, Advocate.
For the Respondent No. 1:Mr. Amit Jain, Advocate.
Headnote:Agreement to Sell--Enforceability of contract--S.17 of the Act talks of enforceability of contract at the instance of vendor or lessor and not against them.
(A) Specific Relief Act, 1963, S.17--Agreement to Sell--Enforceability of contract--Held, S.17 of the Act talks of enforceability of contract at the instance of vendor or lessor and not against them but it is prohibited u/s.17 of the Act if vendor or lessor knows himself that he had no title to property or let property but still enters into agreement to sell or enters into contract believing that he had good title to property but cannot, at the time fixed by parties or by Court for completion of sale or letting, give purchaser or lessee title free from reasonable doubt--Thus, S.17 of the Act cannot be invoked by vendor. (Para 16)
(B) Specific Relief Act, 1963, S.16--Specific Performance--Agreement to sell--Insufficiently stamped--Held, if instrument is insufficiently stamped, admitted in evidence and marked as exhibit without objection by opposite party, said party cannot subsequently raise objection with regard to admissibility on ground of insufficiency of stamp duty. (Para 18)
Mr. Rakesh Kumar Jain, J.:- This appeal is filed by defendant no.1 against the judgment and decree of both the Courts below by which suit filed by the plaintiff for possession by way of specific performance of the contract has been decreed.
2. The case set up by the plaintiff is that defendant no.1 entered into agreement dated 09.04.2004 with him to sell plot No.448, measuring 500 square yards, Phase-VIII, Focal Point, Industrial Area, Mohali for a sum of Rs. 9,75,000/- and received advance of Rs.1,00,000/- on the same day. He paid Rs.3,51,000/- to defendant no.1 on 04.05.2004 and Rs.20,000/- on 10.05.2004. Thus, out of the total sale consideration of Rs.9,75,000/-, defendant no.1 received Rs.4,71,000/- as earnest money and agreed to execute the sale deed on 10.06.2005, after getting No Objection Certificate from the office of defendant no.2. It is further alleged that the plaintiff was always ready and willing to perform his part of the agreement as his Attorney remained present at Tehsil Complex, Mohali on 10.06.2005 along with the balance sale consideration but defendant no.1 did not turn up.
3. On the contrary, defendant no.1 denied the execution of the agreement to sell dated 09.04.2004. He also denied receipt of Rs.1,00,000/- and that the date for execution of the sale deed as was ever fixed as 10.06.2005, rather it is alleged that in the month of January 2002, defendant no.1 contacted Paramjit Singh, proprietor of M/s Sheetal Property, for availing a loan of Rs.1,00,000/-. Paramjit Singh advanced the said loan, but he obtained his signatures on blank proforma of the agreement to sell. Though defendant no.1 has allegedly returned the borrowed amount to Paramjit Singh but he retained the proforma and converted it into the present agreement to sell in connivance with the plaintiff and the witnesses. He also denied receipt of Rs.3,51,000/- and Rs.20,000/-, as alleged by the plaintiff.
4. Defendant no.2 denied the agreement for want of knowledge. It is further alleged that as per policy, transfer of plot is allowed only after clearance of default pointed out by defendant no.2, receipt of transfer documents and appearance of both the parties. It is also averred that defendant no.1 never approached defendant no.2 for seeking No Dues Certificate (NDC) and No Objection Certificate (NOC) to sell the plot in dispute. Thus, the transfer cannot take place without prior permission of defendant no.2.
5. The plaintiff filed replication reiterating the contents of the plaint and denying those of the written statements. On the pleadings of the parties, following issues were framed by the Trial Court:-
“1. Whether the plaintiff is entitled to possession as prayed for?OPP.
2. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP.
3. Whether the suit is not maintainable in the present form?OPD.
4. Whether the plaintiff has not come to the Court with clean hands?OPD.
5. Whether Relief.”
6. The plaintiff examined Ram Dutt, Junior Assistant, P.S.I.E.C. as PW1, Paramjit Singh as PW2 and himself appeared as PW3. He also brought on record agreement to sell dated 09.04.2004 (Ex.P1), receipt dated 09.04.2004 (Ex.P2), receipt dated 04.05.2005 (Ex.P3), receipt dated 16.05.2004 (Ex.P4) and copy of sub Power of Attorney (Ex.P5).
7. On the other hand, defendant no.1 Lakhbir Singh himself appeared as DW1 and examined Vijay Gupta as DW2.
8. The Trial Court, after appreciation of evidence, decreed the suit of the plaintiff for possession on payment of balance sale consideration to defendant no.1 who, after clearance of dues, would ask defendant no.2 to transfer the plot in question in favour of the plaintiff within three months of the judgment and decree. Defendants no.1 and 2 were further restrained from transferring the plot in question to anybody else except the plaintiff.
9. Aggrieved against the judgment and decree of the Trial Court, defendant no.1 filed appeal which was dismissed by the lower Appellate Court on 30.07.2
