Punjab-Haryana High Court
Ajay Pal Sharma vs Wazir Singh Chaudhary on 12 April, 2023
Author: Arvind Singh Sangwan
Bench: Arvind Singh Sangwan
Neutral Citation No:=2023:PHHC:051852
COCP-4284-2019 (O&M) -1-
2023:PHHC:051852
104 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
COCP-4284-2019 (O&M)
Reserved on : April 12, 2023
Date of Pronouncement : April 13, 2023
Ajay Pal Sharma .....Petitioner
Vs.
Wazir Singh Chaudhary ...Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. J.S. Toor, Advocate
for the petitioner.
Mr. Aashish Chopra Sr. Advocate with
Mr. Gagandeep Singh, Advocate
for the respondent.
ARVIND SINGH SANGWAN, J.
The petitioner alleges the violation of the order dated 29.5.2019 passed in Civil Suit No.198 of 2016 and further for willful breach of an undertaking given by the respondent.
Brief facts of the case are that respondent-Wazir Singh Chaudhary entered into an agreement to sell dated 5.10.2012 with the petitioner regarding land measuring 1980 sq. yards for a sale consideration of Rs.5,95,00,000/-. The earnest money of Rs.1,00,00,000/- was paid and the balance amount was to be paid at the time of the sale deed on or before 31.3.2013. In the agreement to sell, there was a clause that the petitioner has a right to execute the 1 of 13 ::: Downloaded on - 14-04-2023 03:21:17 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -2- 2023:PHHC:051852 sale deed on his name or in the name of any other party at his discretion, i.e. to suggest that the petitioner could get the sale deed executed directly in the name of a third person, who is not a party to agreement to sell.
It is stated that the petitioner has paid a total sum of Rs.3,27,00,000/- and vide two sale deeds dated 28.5.2013, two plots measuring 266 sq. yards were sold in the name of third persons for a sum of Rs.48,00,000/- and that amount was adjusted towards the sale consideration. It is also stated that when the respondent failed to execute the sale deed, the petitioner filed suit for mandatory injunction to execute the sale deed, which was, later on, converted into a suit for specific performance of agreement to sell by way of amendment. It is further submitted that on 2.2.2019, a compromise was effected between the parties in which the following terms conditions were settled:-
"(i) That as stated above, the defendant had agreed to sell the suit property in favour of plaintiff for a total sum of Rs.5,95,00,000/- out of which a sum of Rs.3,27,00,000/- as earnest money has been paid by the plaintiff to the defendant. Now, it has been agreed between the plaintiff and defendant that the plaintiff would pay a sum of Rs.2,73,00,000/- to the defendant on or before 7.5.2019. It is made clear that the defendant had executed and got registered two sale deeds bearing No.1630 and 1633 on 28.5.2013 in favour
2 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -3- 2023:PHHC:051852 of some other person qua some part of the suit property and the said sale deeds were executed and got registered by the defendant with the consent of the plaintiff and the sale proceeds of that part of suit property was adjusted and included in the earnest money of Rs.3,27,00,000/-.
(ii) That it has been further agreed between the parties to the present compromise and suit that in case the plaintiff fails to pay the above said amount of Rs.2,73,00,000/- to the defendant on or before 7.5.2019, then in that eventuality, the earnest money of Rs.3,27,00,000/- paid by the plaintiff to the defendant will stand forfeited and the agreement dated 5.10.2012 shall stand cancelled and, thereafter, defendant shall be at liberty to sell the property in favour of any other persons of his choice."
Counsel for the petitioner further submits that as per this agreement, the petitioner was to pay Rs.2,68,00,000/- as balance sale consideration and Rs.5,00,000/- as litigation charges, i.e. total of Rs.2,73,00,000/- on or before 7.5.2019. It is also agreed that if by 7.5.2019 the sale deed is not executed by the petitioner, the earnest money shall stand forfeited and the original agreement dated 5.10.2012 shall stand cancelled. The said compromise was presented in the civil suit as Ex.C1 and vide order dated 2.2.2019, the Civil Judge recorded the undertaking of the parties and adjourned the case. The order dated 3 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -4- 2023:PHHC:051852 2.2.2019 reads as under :-
"Both the parties are present before the Court in person. Compromise deed Ex.C1 duly effected by the parties placed on record.
Plaintiff Ajay Pal Sharma has suffered a statement in writing that he has compromised the matter with the defendant vide compromise deed EX.C1 which bears his signatures. He further stated that he shall remain bound by the terms and conditions of the compromise and compromise may kindly be read as a part of his deposition.
Similarly, defendant Wazir Singh Chaudhary has suffered a statement in writing that he has compromised the matter with the plaintiff vide compromise deed Ex.C1 wich bears his signatures and same may kindly be read as a part of his deposition and he shall remain bound by the same.
Heard. Since the parties have arrived to a settlement vie a compromise deed Ex.C1 wherein the parties have undertaken that the plaintiff shall pay the remaining balance sale consideration to the tune of Rs.2,73,00,000/- to the defendant on or before 7.5.2019 and in case the plaintiff fails to make the payment of said amount then the earnest money already paid by the plaintiff to the tune of Rs.3,27,00,000/- will stand forfeited and agreement dated 5.10.2012 shall stand cancelled, therefore, now to come up on 10.5.2019 for present of parties 4 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -5- 2023:PHHC:051852 regarding the report of outcome of the compromise effected between the parties vide Ex.C1."
Thereafter, on 10.5.2019, the following order was passed :-
"Plaintiff Ajay Pal has suffered a statement to the effect that he gave the cheque of Rs.51 Lacs bearing No.000013 dated 9.6.2019 to defendant Wazir Singh and he further requested for adjourning the matter for remaining payment to defendant till 29.5.2019.
At this stage, defendant Wazir Singh has suffered that he has received the cheque of Rs.51 Lacs bearing No.000013 dated 9.5.2019 as per the compromise.
On request of counsels for both the parties, case is adjourned to 29.5.2019 for remaining payment as well as presence of the parties."
Counsel for the petitioner has further submitted that the respondent had to execute the sale deed of 1714 sq. yards, i.e. by deducting the area of two sale deeds area measuring 266 sq. yards out of the total agreed area of 1980 sq yards. However, it came to the notice of the petitioner that the respondent is owner only to the extent of 1100 sq. yards of land. When the petitioner appeared before the Tehsildar, along with a demand draft dated 29.5.2019 for Rs.2,18,57,000/-, respondent refused to execute the sale deed for 1714 5 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -6- 2023:PHHC:051852 sq. yards on the premise that the respondent is the owner of 1100 sq yards only and the payment of the draft was stopped. It is stated that the petitioner has violated the terms and conditions of the compromise, the statement made before the Civil Court as well as the judgment passed by the Court.
Reply by way of affidavit dated 13.9.2022 by the respondent is on record.
Learned Senior Counsel representing the respondent has argued that when the agreement to sell was executed, a site plan prepared by the petitioner himself was attached along with the same, which reflected the total area of 1980 sq. yards by giving descriptions of 10 plots and a passage in between and intention of petitioner was to sell the plots to the third persons to earn profit and the suit was filed after expiry of limitation period and respondent is ready to contest suit, if it revived be decided on merits.
It is stated that at the time of agreement to sell Rs.1,00,00,000/- was paid out of the total sale consideration of Rs.5,95,00,000/- and, later on, the petitioner paid a sum of Rs.25,00,000/- and Rs.20,00,000/- on 28.4.2013 and another amount of Rs.50,00,000/- on 30.5.2013 and sought extension of the sale deed from 19.4.2013 to 30.5.2013. It is also stated that the two sale deeds dated 28.5.2013 were executed in favour of Bimla Devi and Meena Devi 6 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -7- 2023:PHHC:051852 on the asking of the petitioner for a sum of Rs.48,00,000/-, which was adjusted towards the earnest money and the total earnest money received from the petitioner is Rs.2,47,00,000/- and it is wrongly mentioned that the petitioner has paid Rs.3,27,00,000/-. It is also stated that when the petitioner failed to get the sale deed executed, a legal notice dated 30.6.2013 was sent vide which the respondent stated that there is no extension of the date of registration of the sale deed, however, the petitioner failed to execute the sale deed. It is also stated that on 1.7.20213, the respondent appeared before the Sub Tehsildar, Karnal and got his presence marked and as per the terms and conditions of the agreement to sell, the compromise, the statement made before the Court and the order of the Civil Court dated 2.2.2019, the agreement to sell stands cancelled and the money paid by the petitioner also stands forfeited by the respondent.
It is also stated that the demand draft of Rs.2,18,57,000/-, when presented before the bank was not encashed as the bank informed that the petitioner has informed that his bank draft is lost and the same could not be encashed. Therefore, the petitioner himself has failed to abide by the terms and conditions of the agreement and the compromise. It is also stated that the suit was withdrawn on 29.5.2019 by the petitioner when the amount of Rs.2,18,57,000/- by way of a bank draft was handed over to the respondent and the petitioner has nominated one Satinder Jain, in whose favour the sale deed was to be executed, though he was not the part of the compromise.
7 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -8- 2023:PHHC:051852 It is also stated that the petitioner had no money and even on 29.5.2019, he demanded the earnest money back on the pretext that the area is not complete.
It is, thus, argued on behalf of the respondent that there is no willful disobedience on the part of the respondent.
Learned counsel has further argued that the entire plot of 1980 sq. yards is covered by a boundary wall and in the site plan attached to the agreement to sell, 10 proposed plots are duly depicted, out of which two plots have already been sold. It is also stated that the amount of Rs.50,00,000/-, which was paid on 25.5.20213 was, in fact, not paid by petitioner and was rather paid by one Satinder Jain, who is not a party to the agreement to sell.
It is submitted that it is apparent that there is a dispute regarding the total area of the agreement to sell. Instead of area 1980 sq. yards the petitioner himself states that the ownership is of 1100 sq. yards. It is also apparent that on the asking of the petitioner, the respondent has sold two plots in favour of Bimla Devi and Meena Devi, wherein area 266 sq. yards and an amount of Rs.48,00,000/- was received towards the earnest money.
The terms and conditions of the compromise are very clear that if the petitioner fails to get the sale deed executed on payment of 8 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) -9- 2023:PHHC:051852 balance of sale consideration on or before 9.5.2019, the agreement to sell stand cancelled and the amount will be forfeited.
It has also come on record that when the petitioner moved an application on 2.2.2019 before the Civil Court on the basis of the compromise Ex.C1, the details of the payment were noticed and on 10.5.2019, the civil suit was adjourned 29.5.2019 and on 29.5.2019, the case was dismissed as withdrawn in terms of compromise Ex.C1. after the statements of the parties were recorded. The order dated 29.5.2019 reads as under :-
"Defendant Wazir Singh along with counsel has suffered a statement to the effect that as per compromise Ex.C1, he has received the sale consideration of Rs.2,18,57,000/- through Bank Draft No.420489, Kotak Bank. He further stated that plaintiff has already deposited the amount of RS.3,43,000/- through TDS certificate No.AG/320701 in Income Tax Department. He also stated that as per the consent of plaintiff, he has already sold the land measuring 266 sq. yards through registered deed and regarding remaining land measuring 1714 square yards, he will register the sale deed in favour of nominated person namely Satender Jain. He also suffered that he has no objection if the Court fee be refunded to plaintiff.
Thereafter, plaintiff Ajay Pal along with counsel has appeared and suffered a statement to the effect 9 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) - 10 -
2023:PHHC:051852 that he has compromised the matter with the defendant and as per compromise Ex.C1, he has paid Rs.2,18,57,000/- through Bank Draft No.420489, Kotak Bank to defendant and he has deposited the payment of Rs.3,43,000/- through TDS. He also suffered that he has nominated Satinder Jain for the purpose of registration of sale deed upon which defendant has no objection. He has also suffered that s per the compromise, he withdraws the present suit with the request to refund the Court fee.
The compromise has already been effected between the parties and as per the statements suffered by plaintiff and defendant and in view of the compromise Ex.C1, the present suit stands dismissed as withdrawn. Parties will remain bound by the statements. Court fee is ordered to be refunded to the plaintiff as per rules. Separate intimation regarding refund of Court fee be sent to Collector Karnal. File be consigned to the record room after due compliance.
Pronounced in daily Lok Adalat."
After hearing learned counsel for the parties, I find no merit in this case to hold that there is willful disobedience on the part of the respondent for the following reasons :-
(a) It appears that the petitioner was not ready with the balance sale consideration and, therefore, he could not get the sale deed executed within the stipulated time 10 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) - 11 -
2023:PHHC:051852 as per the agreement to sell dated 5.10.2012 by making part payment of Rs.20,00,000/- and Rs.50,00,000/- in 2013, the date of agreement to sell was extended. The respondent got his presence marked on stipulated date, i.e. 1.7.2013 but petitioner failed to appear;
(b) The petitioner got two sale deeds executed in favour of two persons, namely, Bimla Devi and Meena Devi, who were not party to the agreement to sell. However, he sold 266 sq. yards for Rs.48,00,000/- and got the sale consideration of Rs.48,00,000/- adjusted towards the earnest money. It also reflects that the petitioner was not ready with the balance sale consideration;
(c) Another relevant fact is that when an amount of Rs.50,00,000/- was paid, it was paid from the account of one Satinder Jain, to whom the petitioner has given authority subsequently and it appears that the petitioner was only looking for his profit by getting the sale deed executed in favour of third persons directly from the respondent;
(d) When the suit was instituted by the petitioner, a compromise Ex.C1 was executed between the parties in which it is stated that a sum of Rs.3,27,00,000/- is paid 11 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) - 12 -
2023:PHHC:051852 as earnest money. On Court query, the counsel for the petitioner could not give any reply as to how this figure is mentioned in the compromise deed as the total payment made, i.e. Rs.1,00,00,000/- + 20,00,000/- + 50,00,000/- + 48,00,000/- + 51,00,000/- come to Rs.2,69,00,000/-. Even when the petitioner handed over the demand draft of Rs.2,18,57,000/-, as per his own calculations, to the respondent, he immediately issued instructions to the bank that he has lost the demand drafts and the same should not be encashed. Thus, even the willingness of the petitioner is not on record to get the sale deed executed;
(e) The petitioner has raised a dispute regarding the area of the land by raising a dispute that the respondent is owner only of 1100 sq. yards;
(f) Once the readiness and willingness on the part of the respondent is apparent on record as he has even got his presence marked on 29.5.2019, and petitioner failed to make the balance payment as the demand draft of the balance amount was never cleared the readiness and willingness of petitioner is disputed. The petitioner in order to keep agreement to sell alive, filed a suit for mandatory injunction at first instance and 12 of 13 ::: Downloaded on - 14-04-2023 03:21:18 ::: Neutral Citation No:=2023:PHHC:051852 COCP-4284-2019 (O&M) - 13 -
2023:PHHC:051852 later on amended it to a suit for specific performance, just to gain time and as a ploy got a compromise and later himself stopped payment of demand draft of Rs.2,18,57,000/-;
(g) Needless to say as on today after 10 years of original agreement to sell, price of property has increased manifold.
In view of the disputed facts raised by the petitioner himself, this Court finds that no willful disobedience is made out.
Dismissed.
( ARVIND SINGH SANGWAN )
April 13, 2023 JUDGE
satish
Whether speaking/reasoned : YES / NO
Whether reportable : YES / NO
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