Punjab-Haryana High Court
Sunder Singh vs Smt. Vimal Sawhney & Another on 30 July, 2012
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.1957 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1957 of 2010(O&M)
Date of decision: 30.7.2012
Sunder Singh ......Appellant(s)
Versus
Smt. Vimal Sawhney & another ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Ashok Gupta, Advocate for the appellant.
Mr. B.R. Vohra, Advocate for the respondents.
Rakesh Kumar Garg, J.
This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court, whereby appeal filed by the plaintiff-respondents against the dismissal of their suit vide judgment dated 31.3.2009 for possession by way of specific performance of agreement to sell dated 28.10.2002 was accepted and the suit was decreed.
The brief facts of the case which emerges from the jdugments of the Courts below are that the defendant-appellant executed an agreement to sell dated 28.10.2002 in favour of one Sarwan Kumar Sawhney (predecessor-in-interest of the respondents) who agreed to sell his house No.49, Ekta Vihar, Ambala Cantt for a total sum of Rs.11,15,000/- and received a sum of Rs.1,15,000/- as earnest money.
It was agreed between the parties that the appellant-defendant would execute sale deed in favour of the plaintiff-respondent on or before 28.4.2003 on receipt of the remaining sale consideration which shall be paid before the Sub-Registrar, Ambala Cantt, at the time of attestation of RSA No.1957 of 2010 2 the sale deed. According to the plaintiff, the defendant-appellant had told them that the house in question was free from all kinds of encumbrances/charges and in case of any kind of encumbrances, he would get the same cleared before the execution and attestation of the sale deed. It was further agreed by the appellant that he would get a No Objection Certificate from the office of Municipal Council, Ambala Sadar or Director, Town & Country Planning, Ambala, to enable him to execute and attest the sale deed. Thus, the plaintiff-respondent was to pay only the balance sale consideration as the part performance of his agreement and remaining formalities i.e. for getting the NOC etc. were upon the appellant i.e. his part performance of agreement to complete the sale transaction. It was further agreed between the parties that the plaintiff-respondent would pay Rs.5,00,000/- to the defendant-appellant in the 1st week of April, 2003 and it will be the responsibility of the appellant to get the Clearance Certificate/NOC by writing a condition on the back side of the agreement.
According to the plaintiff-respondent, the appellant did not apply for the NOC or Clearance Certificate for the reasons best know to him. However, he was ready to pay the said Rs.5,00,000/- but when the plaintiff-respondent enquired from the appellant to show the NOC/Clearance Certificate, he did not give any reply, so the plaintiff- respondents did not advance extra amount of Rs.5,00,000/- as agreed on 28.10.2002. However, it is the further case of the plaintiff-respondents that the non-payment of Rs.5,00,000/- would have no effect on the terms and conditions of the agreement to sell dated 28.10.2002. The plaintiff- respondents served a notice dated 17.4.2003 upon the appellant informing him that he was having the balance amount of sale consideration besides additional expenses for the stamp duty etc. and thus, the appellant should procure the NOC/Clearance Certificate so that the sale deed could be RSA No.1957 of 2010 3 registered on 28.4.2003. The said notice was sent through registered A.D cover at the home address of the appellant as well as his place of employment. The appellant refused to receive both the registered covers which were returned as unclaimed and refused by the addressee. Thus, it is the case of the plaintiff-respondent that he was ready and willing to perform his part of the contract and the defendant-appellant should have reached the office of Sub Registrar, Ambala Cantt along with NOC etc. instead the appellant got issued a notice dated 22.4.2003 stating that since the plaintiff-respondent has failed to pay Rs.5,00,000/- in 1st week of April 2003, the agreement to sell stands cancelled and earnest money stood forfeited. The plaintiff as per the terms of the agreement dated 28.10.2002 and the notice dated 17.4.2003 reached the office of Sub Registrar, Ambala Cantt on 28.4.2003 at 9 A.M with balance sale consideration and additional expenses. He also filed an affidavit before the Sub Registrar, Ambala stating therein that in compliance of the agreement to sell, he had come present with ready balance sale consideration and additional expenses for getting the sale transaction completed and his presence might be recorded. The Sub Registrar attested the affidavit. According to the plaintiff-respondent, the defendant also visited the office of Sub Registrar, Ambala Cantt on 28.4.2003 and also filed similar affidavit which was also got attested. The plaintiff-respondent asked the appellant to receive the balance amount and get the sale deed executed. However, the sale deed could not be executed due to the fault of the appellant. Thereafter, through the attesting witnesses of the agreement, the plaintiff- respondent tried his level best to ask the appellant to perform his part of the contract but all proved of no avail and thus, when all amicable efforts failed to bring fruit then the plaintiff-respondent once again served a notice dated 19.9.2004 upon the appellant asking him to get the sale deed RSA No.1957 of 2010 4 executed, however, even after the receipt of said notice, the appellant failed to execute the sale deed. Hence, the suit.
The appellant filed written statement raising various preliminary objections. On merits, execution of the agreement to sell dated 28.10.2002 was admitted. However, it was denied that the appellant did not apply for NOC and Clearance Certificate. According to the appellant, requisite permission to sell the suit property was taken from the bank on 19.12.2002 with whom the property in question was mortgaged. The appellant had also applied for issuance of NOC to the Municipal Council, Ambala Sadar on 17.12.2002. Since the plaintiff-respondent had not paid the amount of Rs.5,00,000/- in the 1st week of April 2003 as per the terms and conditions, which were part and parcel of the agreement, the appellant was not under obligation to execute the sale deed. It is the case of the appellant that since the plaintiff-respondent did not pay Rs.5,00,000/- as stipulated between the parties, the appellant could not get the original sale deed from his employer State Bank of India with whom the sale deed was deposited for equitable mortgage in a house loan. Thus, the plaintiff- respondent had not performed his part of the contract, therefore, the earnest money paid by him stood forfeited and the parties were discharged from the agreement. As per the appellant, said information was given to the plaintiff-respondent through notice dated 22.4.2003. Other averments made in the suit were denied.
Replication to the written statement was filed denying the allegations contained in the written statement and reasserting the stand taken in the plaint.
On the pleadings of the parties, the following issues were framed by the trial Court:
"1. Whether the plaintiff was always ready and RSA No.1957 of 2010 5 willing to perform his part of the contract? OPP
2. Whether the suit is not maintainable? OPD
3. Whether the plaintiff has no locus standi to file the suit? OPD
4. Whether the plaintiff has not come to the court with clean hands? OPD
5. Relief."
In support of his case, the plaintiff-respondent examined Kulbhushan Bhasin as PW1 who tendered into evidence his affidavit Ex.PW2/A and GPA Ex.P1, agreement to sell dated 28.10.2002 Ex.P2, registered AD Notice dated 22.4.2003 Ex.P3, affidavit dated 28.4.2003 Ex.P5, registered AD Notice dated 19.9.2004 Ex.P6, postal receipt Ex.P7, UPCreceipt Ex.P8, registered AD cover Ex.P9 and thereafter, closed the evidence in affirmative The defendant-appellant in support of his case had examined himself as DW1 and filed his affidavit Ex.DW1/A and Nirmal Singh as DW2 and his affidavit Ex.DW2/A. The appellant also tendered into evidence letter dated 19.12.2002 Ex.D1 and letter dated 25.2.2008 Ex.D2 and closed his evidence.
After hearing learned counsel for the parties, the trial Court held that the plaintiff-respondent was not entitled to the decree for specific performance of the contract and thus, dismissed the suit. While dismissing the suit, the trial Court recorded a finding that the plaintiff-respondent never paid Rs.5,00,000/- to the appellant in the 1st week of April 2003 to show his readiness and willingness to perform his part of the contract and therefore, his earnest money stood forfeited vide registered notice dated 22.4.2003 RSA No.1957 of 2010 6 Ex.P3- issued by the appellant and thus, the plaintiff-respondent failed to prove that he was ready and willing to perform his part of the contract. All other issues were decided against the defendant-appellant as the same were not pressed and thus, the suit was dismissed.
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondents filed an appeal before the First Appellate Court which was accepted vide impugned judgment and decree dated 20.4.2010. The relevant discussion in the judgment of the First Appellate Court reads thus:
"After hearing ld. Counsel for the parties and going through the record of the case, this court has arrived at the conclusion that the findings returned by the ld. Trial court on issue no.1 are not sustainable and deserve to be reversed. The agreement to sell was entered into on 28.10.2002.
The execution of the same is admitted. The agreement is on record as Ex.P2. A perusal of the same shows that the total sale consideration was fixed as Rs.11,15,000/-. A sum of Rs.1,15,000/- was paid as earnest money. The date for execution of the sale deed was fixed as 28.04.2003. It was also laid down that if there was any encumbrance then the seller would be responsible for the same. At the back of the agreement, there is another clause which was added on the same day i.e. 28.10.2002. In the said clause, it was provided as under:-
"Today on 28.10.2002, it has been decided RSA No.1957 of 2010 7 by mutual consent that a sum of Rs.5,00,000/- shall have to be paid in the first week of April 2003. The responsibility for getting the NOC shall be that of the seller."
Admittedly, the sum of Rs.5,00,000/- was not paid in the first week of April 2003. The stand of the appellant/plaintiff is that since the respondent/defendant had not even applied for the grant of NOC, the amount was not paid. On the other hand, the stand of the respondent/defendant is that since the amount had not been paid, the agreement stood cancelled. It is settled law that in contracts for the sale of immovable property, time is not normally the essence of the contract. Reliance in this regard can be placed upon Balasaheb Dayandeo Naik's case (supra). It is equally well settled that the normal rule is to allow the specific performance and it is only in rare circumstances that the said relief can be denied. Reliance in this regard can be placed upon Abhey Singh and others' case (supra), Anokh Devi and others' case (supra), Padmawati and others' case (supra) and Abdul Sattar and others' case (surpa).
12. Coming back to the facts of the present case, the non-payment of Rs.5,00,000/- in the first week of April 2003 would not be fatal to the case RSA No.1957 of 2010 8 of the appellant/plaintiff because the time was not the essence of the contract. On the contrary, the respondent/defendant has completely failed to lead any evidence to show that he had applied for the NOC ever. No doubt it has been pleaded in the written statement that he had applied for the NOC on 17.12.2002, but except for the averments in the written statement and the bald statement of the respondent/defendant, there is no evidence of any kind on record to prove this fact. It was the respondent/defendant who in fact violated the terms and conditions of the agreement to sell and, therefore, it was open for the appellant/plaintiff to get the sale deed executed through the process of the court. The appellant/plaintiff also served a notice on 17.04.2003. However, the respondent/defendant issued a notice on 22.04.2003 that because of the non-payment of Rs.5,00,000/-, the agreement stood cancelled. The intention of the respondent/defendant can be gauged from this very fact. It becomes clear that the respondent/defendant was intentionally avoiding the execution of the sale deed and it was because of this reason that he did not apply for the NOC and since because of this, the appellant/plaintiff did not pay the sum of Rs.5,00,000/-, the respondent/defendant immediately issued a notice stating that the RSA No.1957 of 2010 9 agreement stood cancelled.
13. In so far as the question of the appellant/plaintiff being ready and willing to perform his part of the agreement is concerned, he was able to prove that he had been ready and willing at all times to perform his part of the agreement. He firstly issued notice Mark PA. The receipt vide which this notice had been sent by way of registered post is on record as Ex.P7 and the UPC receipt is on record as Ex.P8. This notice was received back as Ex.P9. In this notice, it had duly been stated that the sum of Rs.5,00,000/- had not been paid because the respondent/defendant had not even applied for the NOC. It was stated that the appellant/plaintiff was still ready and willing to perform his part of the agreement. Even if this notice is not considered because the same has not been exhibited despite the fact that its receipt had been exhibited and the notice which had been received back had also been exhibited, it still stands proved that the appellant/plaintiff was ready and willing to perform his part of the agreement. He duly appeared before the Sub Registrar on 28.04.2003 and swore an affidavit that he was present for getting the sale deed executed.
Interestingly, the respondent/defendant also appeared before the Sub Registrar on the same RSA No.1957 of 2010 10 day. When the respondent had already cancelled the agreement by way of notice Ex.P3, there was no need for him to appear before the Sub Registrar. However, perhaps in over anxiety, he appeared before the Sub Registrar. Though in the written statement, the respondent/defendant denied having visited the office of Sub Registrar on 28.04.2003 and having met the appellant/plaintiff there, he admitted the same in cross-examination. He went to the extent of saying that the respondent/defendant had told the Tehsildar that since the sum of Rs.5,00,000/- had not been paid, he was not willing to get the sale deed executed. From the pleadings and the evidence of the case, it stands proved that the appellant/plaintiff was always ready and willing to perform his part of the agreement. It was held by the Hon'ble Punjab & Haryana High Court in Padmawati's case (supra) that the appellant/plaintiff is required to plead and prove that he/she was/is always ready and willing to perform his/her part of the contract and that the readiness and willingness is required to be inferred from the entire reading of the plaint and the evidence led to be interred from the entire reading of the plaint and the evidence led on the record of the case. In the present case, the readiness and willingness of the appellant/plaintiff RSA No.1957 of 2010 11 can be easily inferred from the conduct, the pleadings and the evidence led on the record of the case. It can also be easily inferred that in fact, respondent/defendant was not ready and willing to perform his part of the contract.
14. In so far as the documents Ex.D1 and Ex.D2 are concerned, no reliance can be placed upon the same because they were not proved in accordance with law and the mere exhibition of a document would not make it admissible in evidence. Reliance in this regard can be placed upon Smt. Kunti Devi and others vs. Radhey Shaym, AIR 1978 Allahabad 185; Smt. Ram Jawai and others vs. Smt. Shakuntala Devi and others, AIR 1993 Delhi 330; Bawa Singh and others vs. Harnam Singh and others, 2008(4) Civil Court Cases 376 (P&H); Sait Tarajee Khimchand and others vs. Yelamari Satyam and others AIR 1971 SC1865; Sita Ram vs. Ram Charan and others, 1995(2) Civil Court Cases 699 (MP).
15. No adverse inference can be drawn for the non-appearance of the appellant/plaintiff in the witness box. The suit had been filed by the hushand of the appellant. He unfortunately expired during the pendency of the suit. The appellant is an old lady residing in Delhi. She appointed Shri Kulbhushan Bhasin as her power of attorney. There is no illegality in being RSA No.1957 of 2010 12 represented through a power of attorney.
Reliance in this regard can be placed upon Balbir Singh vs. Anil Kumar 2003(3) Civil Court Cases 155 (P&H); Lt. Col. P.L. Bawa vs. Lt. Col. Bhawani Singh, 2003(1) RCR (Civil) 53 Rajasthan;
Kailashi Devi vs. Matadeen Agrawal and others, 2002(2) Civil Court Cases 39 (Rajasthan).
16. In view of the aforesaid discussion, the findings of the ld. Trial Court on issue N.1 are reversed. The same is decided in favour of the appellant/plaintiff and against the respondent/defendant."
Still not satisfied, the defendant-appellant has filed the instant appeal stating in the grounds of appeal that the following substantial questions of law arise in this appeal:
"i) Whether a plaintiff who has failed to pay the amount by the stipulated date as provided in the agreement to sell, can be held to be ready and willing to perform his part of the contract?
ii) Whether plaintiff has to stand on his own legs or the suit can be decreed on the weakness in the evidence of the defendant?
iii) Whether time is essence of the contract when the dates for payment of the amount have been mentioned with a condition that if payment is not received by that date, the agreement would stand cancelled?
RSA No.1957 of 2010 13
iv) Whether a plaintiff would be justified in claiming that he was always ready and willing to perform his part of contract, when he after receipt of notice rescinding the contract from the other party files the suit after remaining silent for 1 yr.6 months?"
At this stage, the order dated 20.5.2010 passed by this Court may also be noticed which reads as under:
"After arguing some time when this Court was not inclined to interfere, learned counsel for the appellant submitted that the respondents herein, who are the legal representatives of deceased-plaintiff, may be interested in getting compensation in lieu of the decree for specific performance and therefore amicable settlement between the parties be explored.
Notice of motion to the aforesaid limited extent for amicable settlement between the parties.
List on 28.6.2010."
Thereafter, the said appeal was dismissed vide order dated 1.12.2010 which reads as follows:
"This is defendant's second appeal challenging the impugned judgment and decree of the lower appellate court whereby suit for specific performance of the agreement in question was RSA No.1957 of 2010 14 decreed in favour of the plaintiffs- respondents.
This appeal came up for hearing on 20.5.2010. After arguing for some time, when this Court was not inclined to interfere in the impugned judgment and decree, counsel for the appellant had submitted that the respondents herein, who are the LRs of deceased- plaintiff may be interested in getting compensation in lieu of the decree for specific performance and, therefore, amicable settlement between the parties be explored.
On the basis of the aforesaid statement, notice of motion was issued to the respondents to the aforesaid limited extent for amicable settlement between the parties. However, Mr. B.R. Vhora, Advocate appearing on behalf of the respondents, on instructions from Shri Kulbhushan Basin, who is General Power of Attorney on behalf of Vimal Sawheny -
respondent No.1 has submitted that sale deed in favour of the plaintiffs- respondents has already been executed.
In view of the aforesaid fact, which has come on the record, amicable settlement as offered by the counsel for the appellant is not possible.
In this view of the matter, this appeal is ordered to be dismissed.
RSA No.1957 of 2010 15The appellant filed SLP which was granted and vide judgment dated 1.8.2011, the Hon'ble Supreme Court allowed Civil Appeal No.(s) 6317-18 of 2011. The relevant part of the said order reads thus:
"We have heard learned counsel for the parties and perused the record.
By an order dated 20.5.2010, the learned Single Judge, after taking cognizance of the statement made by the counsel for the appellant that the legal representatives of the original plaintiff may be interested in getting compensation in lieu of the decree for specific performance and, therefore, possibility of an amicable settlement can be explored, issued notice of motion.
After the notice was served, the learned Single Judge dismissed the second appeal only on the ground that the sale deed had been executed in favour of respondent No.1 and that there was no possibility of an amicable settlement between the parties.
In our view, the learned Single Judge committed an error by dismissing the second appeal only on the ground that amicable settlement was not possible. He should have examined whether any substantial question of law arises for consideration by the High Court and then decided the matter.
In the result, the appeals are allowed. The impugned order dated 1.12.2010 is set aside and RSA No.1957 of 2010 16 the matter is remanded for fresh disposal of the second appeal filed by the appellant. The High Court shall now decide the second appeal keeping in view the provisions contained in Section 100 of the Code of Civil Procedure."
After remand from the Hon'ble Supreme Court, this appeal was listed for hearing on 14.10.2011. The order dated 14.10.2011 reads thus:
"Mr. Jaswinder Randhawa, Advocate has put in appearance on behalf of Mr. Anil Kshetarpal, Advocate who was representing the appellant in this case and has stated that Mr. Anil Kshetarpal, Advocate has no instructions in this case.
Dismissed for non-prosecution."
An application i.e. CM No.12042-C of 2011 was filed by the appellant by engaging a new counsel for recalling of the said order dated 14.10.2011 and restoration of the appeal at its original number. The said application was allowed vide order dated 23.11.2011 and the appeal was restored to its original number.
While challenging the impugned judgment and decree of the Lower Appellate Court, learned counsel for the appellant has vehemently argued that though the appellant did enter into an agreement to sell dated 28.10.2002 (Ex.P2) with the plaintiff-respondent but it was the plaintiff who did not perform his part of the contract as he did not pay Rs.5,00,000/- in the 1st week of April, 2003 to the appellant as per writing on the back of the agreement to sell dated 28.10.2002 and thus, the earnest money paid by him stood forfeited and the appellant was discharged from the agreement as the plaintiff-respondent had failed to make the payment of Rs.5,00,000/- RSA No.1957 of 2010 17 in the 1st week of April 2003 to the appellant as agreed between the parties and the said clause written on the back of the agreement was a part and parcel of the said agreement and binding upon the parties. Learned counsel for the appellant has further argued that the time was the essence of the contract in question, as for non-payment of Rs.5,00,000/- as stipulated above, the appellant could not get the original sale deed from his employer-State Bank of India with whom the said sale deed was deposited for equitable mortgage in a house loan and thus, in view of the aforesaid fact, which has been established on record, decree for specific performance of the agreement of sell could not have been passed against the appellant. In support of the aforesaid agreement, learned counsel for the appellant has further referred to a letter dated 19.12.2002 Ex.D1 written by the Bank to him giving him permission to sell the house in question wherein it has been mentioned that title deed of the property is to be released after the entire loan outstanding with interest is liquidated . It is the case of the appellant that since the plaintiff-respondent failed to perform his part of the contact so the earnest money paid by him stood forfeited and parties were discharged from the agreement and information was also given to the plaintiff-respondent on 22.4.2003 through registered letter. Learned counsel for the appellant has further referred to the statement of the appellant DW-1 wherein he has categorically supported the aforesaid defence taken. It is the further case of the appellant that in the instant case the condition of payment of Rs.5,00,000/- by the plaintiff- respondent in the 1st week of April 2003 was directly linked with the condition of getting No Objection Certificate by him as it was not possible to secure the original sale deed/title from the Bank without paying the mortgage money and this was the reason why this clause of payment of Rs.5,00,000/- was specifically incorporated in the terms and conditions of RSA No.1957 of 2010 18 agreement to sell. On the basis of the aforesaid submissions, learned counsel for the appellant has assailed the finding of impugned judgment passed by the Lower Appellate Court and has argued that the First Appellate Court has brushed aside the above mentioned material violation of the terms of the contact on the part of the plaintiff-respondent by saying that time was not the essence of the contract. According to the learned counsel, the time was essence of the contract as for non-payment of Rs.5,00,000/- in the 1st week of April 2003 to the appellant, the agreement stood defeated. According to him, obtaining of No Objection Certificate was not the pre-condition for payment of Rs.5,00,000/- and even otherwise the First Appellate Court has erred in recording a finding that appellant did not take steps which is incorrect as per the material on record referred to above. In the end, learned counsel appearing on behalf of the appellant has also argued that the plaintiff-respondent knew that the agreement stood rescinded as he filed a suit after a period of 1 year and 7 months and otherwise there was no occasion for him to wait for such a long period for filing the suit after the stipulated date. On the basis of the aforesaid submissions, learned counsel for the appellant has vehemently argued that the substantial questions of law as framed in the grounds of appeal do arise in this appeal and the impugned judgment and decree of the First Appellate Court is liable to be set aside.
On the other hand, learned counsel appearing on behalf of the respondent has supported the impugned judgment and has argued that it stands proved from the voluminous evidence on record that the plaintiff- respondent was always ready and willing to perform his part of the contract, the execution of which was never in dispute. According to the learned counsel, it stands established that the appellant failed to get the No Objection Certificate from the competent Authority and in fact was not RSA No.1957 of 2010 19 ready and willing to perform his part of the contract as is proved from his conduct and the evidence on record. Learned counsel appearing on behalf of the respondent has referred to the factum of sending the notice dated 17.4.2003 to the appellant for obtaining the NOC and also to be present in the Sub Registrar's Office on the stipulated date. It has been further argued on behalf of the plaintiff-respondent that time was not essence of the contract as it cannot be said that since the sum of Rs.5,00,000/- was not paid in April 2003, the agreement stood cancelled and the non payment of Rs.5,00,000/- was not fatal to the case of plaintiff-respondent. Learned counsel for the respondent has further argued that though the appellant had pleaded in the written statement that he had applied for NOC on 17.12.2002, however, no evidence has been led to prove the said fact and from this fact alone, it is proved that the appellant was not willing to perform his part of the agreement. Not only this, once the appellant failed to even apply for the NOC, it was not incumbent upon the plaintiff to pay a sum of Rs.5,00,000/- in the 1st week of April 2003. It has been further argued that there is no legal evidence on record to support the argument of the appellant that time was the essence of the contract and the condition of payment of Rs.5,00,000/- was necessarily linked with the redemption of the mortgage of the title deeds of the suit property from the Bank as alleged. Learned counsel for the plaintiff-respondent has referred to the document Ex.D1 dated 19.12.2002 allegedly written by the Bank to the appellant informing him that permission is granted to sell the house in question on payment of the total house loan, as according to the counsel for the appellant the said document has not been proved on record and as such was not admissible in evidence. It has been further argued by the counsel for the plaintiff-respondent that no exception can be taken of the fact that the suit was filed after 1 ½ year of the stipulated date for RSA No.1957 of 2010 20 execution of the agreement in question as the suit was filed within limitation period. Moreover, it stands proved on record that even after the stipulated date, the plaintiff-respondent tried his level best to persuade the appellant for execution of the sale deed as is evident from the registered A.D. Notice dated 19.9.2004 (Ex.P-6) and the testimony of the witnesses in this regard. It has been further argued by the learned counsel for the plaintiff- respondent that the execution of the agreement in question is not in dispute and from the evidence on record, the readiness and willingness of the plaintiff-respondent, is proved and as such, he was entitled to the decree as it is well settled that on proving the aforesaid, normal rule is to grant the specific performance of the agreement to sell in question.
I have heard learned counsel for the parties and perused the impugned judgment and other documents as placed before this Court by the learned counsel for the parties.
At the outset, it may be noticed that execution of the agreement to sell dated 28.10.2002 between the parties is not in dispute. It is useful to refer to the agreement in question which reads thus:
"I am Sunder Singh son of Bansi Lal s/o Balluy Ram, resident of 49, Ekta Vihar, Ambala Cantt. Whereas I am owner in possession of house no. 49, Ekta Vihar, Ambala Cantt situated in village Naggal, Tehsil & District Ambala comprised in Khasra No. 15//18/1min Plot No. 49, area 242 Sq. yards. House has been constructed thereon. I have the right to sell the property. I had purchased this property vide document no. 80-81 dated 14.1.1998. Now I need money for other important works and therefore, with my free will and volition and without any pressure and after understanding my rights and wrongs, I have RSA No.1957 of 2010 21 agreed to sell house the House no. 49, area 242 Sq. yards for a sum of 11,15,000/- (Rupees Eleven lacs fifteen thousand only) in favour of Shrawan Kumar Sahni son of Sh. Seena Shah, resident of 1, Gree Park, Ambala Cantt and have received Rs. 1,15,000/- (Rupees One lac fifteen thousand only) as earnest money. Remaining amount shall be received within the time prescribed up to 28.04.2003 before the Sub Registrar, Sub Tehsildar, Ambala Cantt. If the purchaser refused to get the sale deed registered within the time prescribed, the earnest money paid by him shall stand forfeited. If I refuse to get the sale deed registered with the prescribed time, the purchaser shall have a right to get the sale deed executed through court of law with respect to the house in question or he would be entitled to take double the amount of earnest money. I shall have no objection. The expenses of registration shall be borne by the purchaser. Purchaser would be entitled to get the sale deed registered in name of any person. One hand pump and electric motor installed in the house would be given to the purchaser along with the house. I shall get the house free from all encumbrances including the land. If any defect is found in my ownership, I shall remain liable to the purchaser. Hence this agreement to sell has written so that it can be used at appropriate time 28.10.2002.
Witnesses: Sd/-(Hindi)
Sd/-
1. Sd/- Jagjit Singh s/o Sunder Singh (Seller) Shrawan Kumar
Jaswant Singh Sahni
RSA No.1957 of 2010 22
(Purchaser)
114, Gobind Nagar, Ambala Cantt
Backside
Today on 28.10.2002, unanimously it was decided that in the first week of April 2003, Rs.5,00,000/- shall be payable and the seller shall be liable to get the NOC and clearance.
Witness: Sd/-(Hindi) Sd/-
1. Sd/- Jagjit Singh s/o Sunder Singh (Seller) Shrawan Kumar Jaswant Singh Sahni 114, Gobind Nagar, Ambala Cantt. (Purchaser)
2. Sd/- Narmail Singh - 28.10.2002 Pooja Properties, Ambala Cantt."
From the combined reading of agreement in question and the clause in question written on the back side of the agreement, it cannot be interpreted that in case the purchaser does not pay a sum of Rs.5,00,000/- in the 1st week of April 2003, the earnest money was liable to be forfeited and parties to the agreement stood discharged. It was only if the purchaser had refused to get the sale deed registered within the time prescribed, the earnest money paid by him was to be forfeited. There is no such condition in the agreement that in case of non-payment of Rs.5,00,000/- in the 1st week of April, it will entail the cancellation of the agreement. In fact, if there was any intention of the parties to link the payment of Rs.5,00,000/- by the respondent in the 1st week of April with the redemption of an alleged mortgage of the house in question by paying the entire loan of the SBI, otherwise the specific condition could have been incorporated while adding the said clause on the back side of the agreement as the factum of alleged equitable mortgage of the house in question was to the knowledge of the appellant and in fact it has been expressly admitted by him in the agreement that he would get the house free from all encumbrances. Not only this, there is no legal evidence on record except his own statement to prove the assertion of the appellant that he was required to pay the entire house loan before executing the sale RSA No.1957 of 2010 23 deed. No doubt, letter dated 19.12.2002 written by the Bank informing the appellant, the condition of payment of entire loan before permission to sell has been placed on record by exhibiting the said document as Ex.D1. However, the contents of the said document have not been got proved from the Bank Authorities/writer of the said document. It is well settled that mere execution of the document would not make it admissible itself in evidence. Reliance in this regard can be placed upon the judgment reported as Sait Tarajee Khimchand and others vs. Yelamari Satyam and others AIR 1971 SC 1865. Thus, no fault can be found in the findings of the Lower Appellate Court to the effect that time was not the essence of the contract.
At this stage, it is also useful to refer to the documents notice dated 17.4.2003 Mark PA and the receipt Ex.P-7 vide which the said notice was sent by way of registered post. Ex.P-9 is the document showing return of the said registered notice as unclaimed. It has been further proved on record that correctness of the address of the appellant on the said notice has not been disputed. There is further evidence on record that the plaintiff-respondent was present in the office of Sub Registrar along with balance payment and other expenses where he sworn an affidavit in this regard showing his readiness and willingness to execute the sale deed as per the agreement in question. On the other hand, the factum of non willingness and non-readiness on the part of the appellant is clearly established on the record from the notice Ex.P3 dated 22.4.2003 vide which the appellant informed the plaintiff-respondent that agreement stood cancelled due to non-payment of Rs.5,00,000/- in the 1st week of April and the fact that there is no evidence on record to prove that the appellant took any step to obtain NOC for selling the house in question though admittedly, in the pleadings he has taken a stand that he applied to the Municipal RSA No.1957 of 2010 24 Corporation on 17.12.2002 for obtaining NOC.
It may also be noticed that though in the written statement, the appellant denied having visited the office of Sub Registrar on 28.4.2003 and having met the respondents there yet he admitted in the cross- examination that he was present in the office of Sub Registrar on 28.4.2003 and had met the plaintiff-respondent and that he had appeared before the Sub Registrar. The presence of the appellant in the Sub Registrar's Office on 28.4.2003 itself controverts his stand that the agreement in question stood cancelled for non-payment of Rs.5,00,000/- in the 1st week of April and as intimated by him by issuing notice dated 22.4.2003 Annexure P-3 informing the plaintiff-respondent that his earnest money stood forfeited and the appellant was discharged from the agreement as in such an eventuality, it was not necessary for the appellant to be present in the Sub Registrar office on 28.4.2003. In fact the readiness and willingness of the parties to the contract is required to be inferred from the pleadings and the evidence led on record of the case. In the instant case, the readiness and willingness of the plaintiff-respondent can be easily inferred from the pleadings and evidence led on record whereas from the conduct of the appellant, it can also be easily inferred that in fact he was not ready and willing to perform his part of the contract. The last argument of the counsel for the appellant that in the facts and circumstances of the present case, the decree for specific performance of the agreement in question could not be granted as the suit was filed after a period of 1½ year, is without any substance. It has been clearly established that after the stipulated date, the plaintiff-respondent had made efforts to make the appellant agree for execution of the sale deed in furtherance of the agreement in question and it was only when he failed in this respect, the suit was filed well within the time of limitation. It is well RSA No.1957 of 2010 25 settled that once the execution of the agreement in question and willingness and readiness of the purchaser is proved, the normal rule is to allow specific performance and it is only in later circumstances that the said relief can be denied. Reliance in this regard can be placed upon Abhey Singh and others vs. Ramesh Kumar and others 2009(3) Civil Court Cases 774 (P&H), Anokh Devi and others vs. Trilok Singh and others (1996-1) PLR 372, Padmawati and others vs. Kulwanti Rai and others (2008-2) PLR 424 and Abdul Sattar and others vs. Pitamber Singh (2008-3) PLR 720.
It may also be noticed that the relief of specific performance of the agreement is at the discretion of the Court as envisaged under Section 20 of the Specific Relief Act and the said discretion is to be exercised judiciously and once the Lower Appellate Court has exercised its discretion to grant the said relief, the same should not be interfered by the High Court in exercise its jurisdiction under Section 100 CPC unless it is established that such a discretion was exercised in an arbitrary manner. There is nothing on record to reach such a conclusion rather from the evidence on record it is established that the First Appellate Court has exercised its discretion in a judicial manner. Moreover, in execution of the impugned decree sale deed has already been executed in favour of the plaintiff-respondent as noticed in the order dated 1.12.2010. Therefore, even before this Court, no case is made out to interfere in the discretion exercised by the Lower Appellate Court under Section 20 of the Specific Relief Act in favour of the plaintiff-respondent.
For the reasons recorded above, no substantial question of law as raised in the grounds of appeal and as argued, is made out in favour of the appellant.
No other point has been argued.
RSA No.1957 of 2010 26In the result, upholding the findings recorded by the learned First Appellate Court in the impugned judgment, the present appeal is dismissed.
July 30, 2012 (RAKESH KUMAR GARG)
ps JUDGE
RSA No.1957 of 2010 27
On the pleadings of the parties, the trial Court framed the following issues:
, however, I find no force in the contentions raised by him. the Courts below on appreciation of evidence have recorded a finding of fact that the Thus, I find no merit in this appeal.
No substantial question of law arises in this appeal. Dismissed.