Punjab-Haryana High Court
Gurdial Sarup vs Kaushalya Kapur And Ors. on 21 November, 2002
Equivalent citations: (2003)133PLR599
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This Regular Second Appeal has been filed by the plaintiff against the judgment and decree dated 26.9.1987, passed by the learned Additional District Judge, whereby the appeal, filed by the defendants, was accepted, the judgment and decree of the trial Court, were set aside and the suit of the plaintiff was dismissed.
2. The facts, in brief, are that Gurdial Sarup, plaintiff-appellant, filed a suit for possession by way of specific performance of the agreements to sell dated 7.11.1977 and 30.11.1977. Initially, the suit was filed against defendant No. 1, Kaushalya Kapur, widow of Tek Chand, and subsequently, defendant Nos. 2 to 6, who were sons and daughters of Tek Chand, deceased, were also impleaded as defendants. As per the allegations of the plaintiff, defendant No. 1, Smt. Kaushalya Kapur, had agreed to sell the house in question to the plaintiff for a sale consideration of Rs. 13,000/-, vide agreement dated 7.11.1977 and she received Rs. 1,000/- as earnest money from the plaintiff and it was stipulated that she would execute the sale deed on 30.11.1977. It was alleged that on 30.11.1977, when the plaintiff brought the sale consideration and registration expenses, defendant No. 1 informed the plaintiff that there was some liability of her husband to the Cooperative Bank, by way of pledging the house with the Bank and she sought some more time to discharge the liability and by another agreement dated 30.11.1977, she agreed to execute the sale deed on 30.12.1977. It was alleged that on 30.12.1977, the plaintiff remained present in the office of Sub Registrar throughout the day along with the balance sale consideration to be paid to defendant No. 1, but she did not turn up and the sale deed could not be executed. On the same day, the plaintiff had sworn an affidavit before the Oath Commissioner, regarding his readiness to perform his part of the contract. It was alleged that the plaintiff throughout was ready and willing to perform his part of the contract, but defendant No. 1 had declined to execute the sale deed, even though the amount due had been paid to the Bank on 24.7.1980. It was alleged that defendant No. 1 had entered into agreement with the plaintiff, claiming herself to be the exclusive owner of the property, on the basis of a Will, which was executed in her favour of her husband, Tek Chand, deceased, and that the other defendants were also the consenting parties.
3. The suit was contested by the defendants. Defendant No. 1, in her separate written statement, alleged that the value of the house was not less than Rs. 40,000/- and that it was pleaded with the Cooperative Bank against a loan and that the purchaser had promised to pay the entire amount of encumbrance to the Bank, in addition to the sale consideration of Rs. 13,000/-. It was alleged that on 30.11.1977, she was told that the plaintiff was not ready with the cash amount required to be paid to her and also to the Bank, whereupon time for execution of the sale deed was extended upto 30.12.1977. It was alleged that on 30.12.1977, when she came to the Tehsil Compound, even at that time the plaintiff was not possessed of the requisite cash for execution of the sale deed and she was requested for extension of time, but she declined. It was alleged that thereupon, defendant No. 1 deposited the amount due with the Bank, by selling the house of her mother and the agreement stood cancelled and the earnest money of Rs. 1,000/- stood forfeited. It was alleged that defendant No. 1 was always ready and willing to perform her part of the contract. In the written statement, filed by defendant Nos. 2 to 6, it was alleged that defendant No. 1 was not the sole owner of the house in dispute and that the agreement was void to the extent of their share in the said house, as they had also inherited the house along with defendant No. 1, on the death of their father, Tek Chand. It was alleged that defendant No. 1 had no right or authority to alienate their share, as she had not become the owner of the house, by virtue of any Will. On the pleadings of the parties, the trial Court framed various issues and additional issues.
4. After hearing both the sides, the learned trial Court decreed the suit of the plaintiff for specific performance of the agreement to sell, on payment of the balance sale price of Rs. 12,000/-. The appeal, filed by the defendants, was accepted by the learned Additional District Judge, the judgment and decree of the trial Court were set aside and the suit of the plaintiff was dismissed, holding that the plaintiff was not ready and willing to perform his part of the contract. Aggrieved against the judgment and decree of the learned Additional District Judge, the plaintiff filed the present Regular Second Appeal in this Court.
5. I have heard learned counsel for the parties and have gone through the record carefully.
6. It was submitted by the learned counsel for the plaintiff-appellant that the learned Additional District Judge erred in law in setting aside the judgment and decree of the trial Court and dismissing the suit of the plaintiff. It was submitted that the plaintiff was always ready and willing to perform his part of the contract and that no fault lay with the plaintiff and the fault, if any, was with defendant No. 1, who failed to execute the sale deed. It was submitted that in fact, defendant No. 1 was unable to execute the sale deed because the house in question was pledged with the Cooperative Bank and defendant No. 1 had not re-paid the amount of loan to the Bank.
7. However, I find no force in these submissions of the learned counsel for the plaintiff-appellant. The learned Additional District Judge, while holding that the plaintiff was not ready and willing to perform his part of the contract, had found that on 30.12.1977, the plaintiff had not got his presence marked with the Sub Registrar. On the other hand, he had only sworn an affidavit, which was got attested from an Oath Commissioner and this was of no consequence to prove that on 30.12.1977, the plaintiff was ready and willing to perform his part of the contract. It was also found by the learned Additional District Judge that after 30.12.1977, the plaintiff took no steps for getting the sale deed registered and did not serve any notice upon the defendant, till he filed the present suit on 29.7.1980, It was also found by the learned Additional District Judge that the agreement to sell was for Rs. 13,000/- whereas, defendant No. 1 was required to pay Rs. 18,990/- towards the mortgage amount to the Cooperative Bank and under these circumstances, the sale deed could not have been executed in respect of the property, which was under mortgage and the sale consideration was much less than the mortgage amount. While coming to the aforesaid conclusion, the learned Additional District Judge made a reference to the replication, filed by the plaintiff.
8. I have gone through the replication dated 4.2.1981, filed by the plaintiff to the written statement filed by defendant No. 1. In the said replication, it was alleged by the plaintiff that the house in question was mortgaged with the Cooperative Bank and defendant No. 1 assured (at the time of original agreement dated 7.11.1977) that she will get the property redeemed by 30.11.1977 and shall execute the sale deed in favour of the plaintiff. It was further alleged that on 30.11.1977, the defendant had told that the property had not been got redeemed as yet because the house in question was jointly mortgaged with two other houses and a huge amount was required to be paid and the Bank was not ready to release the house by accepting 1/3rd share of the total loan, which amounted to Rs. 18,990.07 upto 29.12.1977 and as such she had not been able to get the property redeemed and sought further time and accordingly, the agreement dated 30.11.1977 was reduced into writing, whereby the defendant agreed to execute the sale deed in favour of the plaintiff upto 30.12.1977. It was alleged that even upto 30.12.1977, the defendant could not get the property redeemed, as the mortgage consideration had not been paid to the Bank. It was further alleged in the replication that on 30.12.1977, the plaintiff remained present in the office of Sub Registrar throughout the day and had brought the balance sale consideration, but defendant No. 1 did not turn up and as such the sale deed could not be executed and that when in July, 1980, the defendant refused to execute the sale deed, the present suit was filed. When Gurdial Sarup, plaintiff, appeared in the witness box, he stated, during cross-examination, that at the time when the deal was struck, he did not know that the house in question was under mortgage with the Cooperative Bank and that he came to know about it when defendant No. 1 had deposited money with the Bank on 24.5.1980. He denied the suggestion that he was required to pay the outstanding amount to the Bank or that on 30.11.1977, he was not possessed of the money and got the date extended. He also denied the suggestion that on 30.11.1977, he had not gone to get the sale deed registered or that the agreement got cancelled.
9. From a perusal of the above, it would be clear that even though in the replication, the plaintiff had admitted that the house in question was under pledge with the Cooperative Bank and a substantial amount was required to be paid to the Bank, but when the plaintiff appeared in the witness box, he denied having knowledge about the house being under pledge with the bank. In my opinion, the learned Additional District Judge rightly found that no reliance could be placed on the testimony of the plaintiff that he was always ready and willing to perform his part of the contract. I am further of the opinion that the learned Additional District Judge had rightly found that if the plaintiff had been present in the office of Sub Registrar on 30.12.1977, he could have got his presence marked with the Sub Registrar by moving an application or otherwise. However, nothing of the kind was done. Instead, an affidavit was sworn by the plaintiff, attested by an Oath Commissioner, which is neither here nor there. In my opinion, the learned Additional District Judge had rightly found that the plaintiff was not ready and willing to perform his part of the contract. I am further of the opinion that the learned trial Court had erred in law in holding that the plaintiff was always ready and willing to perform his part of the contract, merely because he had sworn in an affidavit before the Oath Commissioner. In my opinion, the plaintiff could succeed only if he was able to prove that he was ready and willing to perform his part of the contract (irrespective of the fact whether defendant No. 1 was ready and willing to perform her part of the contract or not). Reliance in this regard may be placed on the law laid down by the Hon'ble Supreme Court, in the cases reported as N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. , 1995(5) Supreme Court Cases 115 and His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, 1996(4) Supreme Court Cases 526. In the present case, the learned Additional District Judge, after considering the entire evidence led by the parties, had come to a categorical finding that the plaintiff had failed to prove that he was ready and willing to perform his part of the contract. No fault could be found with this finding of fact, given by the learned Additional District Judge, especially when this finding is based on evidence led by the parties and other circumstances proved on the record. Accordingly, I affirm the findings of the learned Additional District Judge on issue No. 2. The question as to whether the plaintiff was required to pay the outstanding amount to the Bank or not, in my opinion, would loose its significance, in view of my above findings that the plaintiff had failed to prove that he was always ready and willing to perform his part of the contract. Furthermore, no substantial question of law is involved in this Appeal.
10. For the reasons recorded above, finding no merit in this Second Appeal, the same is hereby dismissed.