Punjab-Haryana High Court
Gurdial Singh & Anr vs Brij Lal on 23 August, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.5002 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.5002 of 2011 (O&M)
Date of decision: 23.08.2013
Gurdial Singh & anr. ......Appellant(s)
Versus
Brij Lal ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Aman Bansal, Advocate for the appellants.
Mr. R.K. Gupta, Advocate for the respondent.
Rakesh Kumar Garg, J.
This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court, whereby while accepting the appeal, suit of the plaintiff-respondent was decreed for possession by way of specific performance of the agreement in question in stead of the alternative relief as decreed by the trial Court.
The plaintiff-respondent filed a suit for symbolic possession by way of specific performance of the agreement to sell dated 20.9.2005 for the land in question measuring 2 bighas 5 biswas on payment of balance sale consideration along with consequential relief of permanent injunction restraining the defendant-appellants from alienating the suit land in any manner. The aforesaid suit was filed by the plaintiff-respondent on the averments that the defendant-appellants portraying themselves to be the owners in possession of the suit property executed an agreement to sell in his favour on 20.9.2005 for a total sale consideration of Rs.12,37,500/- and agreed to sell the land in question and further received a sum of Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 2 Rs.2,00,000/- as earnest money in the presence of their witnesses. The last date for execution of the sale deed was fixed as 19.2.2006. The possession of the suit property was delivered to the plaintiff-respondent at the time of execution of the agreement to sell dated 20.9.2005. It is the further case of the plaintiff-respondent that 19.2.2006 being a holiday, he contacted the defendant-appellants for execution and registration of the sale deed in his favour on some other date and appellants agreed that they will reach in the office of Sub Registrar on 17.2.2006 for the said purpose. The plaintiff-respondent was present in the office of Sub Registrar, Kalka on 17.2.2006 along with balance sale consideration amount and necessary expenses for stamp papers etc. He waited for the appellants for the whole day but they did not turn up. Then the plaintiff-respondent got his presence marked in the office of Sub Registrar, Kalka by way of affidavit which was duly attested by the Executive Magistrate, Kalka. The plaintiff- respondent enquired from the appellants about the reason for not turning up on 17.2.2006, upon this, they apologized and fixed 20.2.2006 for execution and registration of the sale deed. Accordingly, the plaintiff- respondent again reached the office of Sub Registrar, Kalka on 20.2.2006 but the defendant-appellants did not turn up. He again got his presence marked by way of an affidavit. The plaintiff-respondent again visited the office of Sub Registrar, Kalka on 21.2.2006 along with balance sale consideration and necessary expenses but of no use. Hence the suit.
The defendant-appellants in their written statement submitted that agreement in question is not a registered document and the plaintiff- respondent had failed to perform his part of agreement to sell dated 20.9.2005, though they admitted the fact of execution of agreement to sell with the plaintiff-respondent for a sale consideration of Rs.12,37,500/- and Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 3 also admitted receipt of sum of Rs.2,00,000/- as earnest money. It was further admitted that last date for execution of sale deed was 19.2.2006. However, handing over of the possession of the land in question was denied. It was further alleged that it was the plaintiff-respondent who was not ready and willing to perform his part of agreement and was not interested and did not get the sale deed executed in his favour on payment of balance sale consideration. It was further submitted that the plaintiff- respondent was not present in the office of Sub Registrar, Kalka on 17.2.2006. Defendants further alleged that the plaintiff was not having the balance sale consideration with him on 20.2.2006. So the question of his readiness for performance of his part of agreement to sell does not arise. Thus, it was prayed that the suit be dismissed.
From the pleadings of the parties, the following issues were framed:
"1. Whether the plaintiff is entitled for possession of the suit property by the way of specific performance of the agreement to sell dated 20.9.2005? OPP
2. Whether the suit is not maintainable in the present form nor the plaintiff has locus standi to file the same? OPD
3. Relief."
The trial Court after considering the evidence on record and keeping in view the admission of the execution of agreement to sell in question on behalf of the appellants, held that the plaintiff-respondent was not entitled to the decree for possession by way of specific performance and is only entitled to the alternative relief of recovery of double amount of Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 4 earnest money i.e. Rs.2,00,000/- along with interest @ 9% per annum from the date of institution of the suit till its realization.
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondent filed an appeal before the Lower Appellate Court which was accepted vide impugned judgment and decree dated 15.11.2011.
The relevant paragraphs of the impugned judgment read thus:
"In the present case, the last date to get the sale deed executed was 19.2.2006 and on the stipulated date since it was holiday, so it was decided by the parties to be present in the office of Sub Registrar, Kalka on 17.2.2006 but the defendants did not turn up on any date to get the sale deed executed and registered as they were not ready and willing to perform their part of the agreement. Thereafter the suit was filed by the plaintiff on 24.5.2006. Thus the suit was filed within three months and five days. The readiness and willingness of the plaintiff is also proved from this fact that he immediately within almost three months brought a suit against the defendants. Had the defendants been ready and willing to perform their part of the agreement, then they must have opted to get the sale deed registered when the suit was filed. There is Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 5 no dispute regarding the proposition of law laid down in the judgment Mrs. Saradamani Kandappan Vs. Mrs. S.Rajalakshmi & other's case (Supra) that the time is essence of contract in regard to immovable properties as in these days of galloping increase in prices of the property. In the present case the plaintiff did not waste the time and within three months, he brought a suit against the defendants. So the defendants are not entitled to the benefit of increase in the prices of the agricultural land. Even otherwise, within three months of the agreed date, there could be no such increase in the prices which could prevent the plaintiff to seek relief of specific performance. On the other hand, the conduct of the defendants contesting the suit is that they were interested to linger on the proceedings, as such, they cannot be allowed to take benefit of their own wrong.
Readiness and willingness of the plaintiff is proved from the fact that he immediately brought the suit when the defendants did not turn up to get the sale deed executed and normal rule is to grant the relief of specific performance of the Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 6 agreement and for declining the said relief, there has to be some special circumstances. Reliance can be placed on the judgment of our own Hon'ble Court in a case Jora Singh Versus Lakhwinder Kumar and others, 2011 (1) RCR (Civil) 130 where it was so observed. The learned trial court has not given any specific reason for declining the relief of specific performance to the plaintiff.
The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. Reliance can be placed on the judgment of Hon'ble Supreme Court in a case Rameshwar Prasad (D) by Lrs Versus Shri Basanti Lal, 2008 AIR (SCW) 2708. The pleadings of the plaintiff as well Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 7 as the evidence led by the plaintiff are sufficient to prove that the conduct of the plaintiff was blemishless, as such, there was nothing to debar him from seeking the relief of specific performance. Reliance can be placed on another judgment of Hon'ble Supreme Court in a case Aniglase Yohannan Versus Ramlatha and Others 2005 S.C.C (7) 534 where it was held that the court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
After going through the pleadings and the evidence produced by the plaintiff, an inevitable conclusion is that the plaintiff was entitled to the relief of specific performance. He has been condemned by the learned trial court without his fault. The learned Civil Judge has not appreciated the facts and evidence produced by the parties. The learned Civil Judge has also erred in ignoring the basic principles that since the conduct of the plaintiff was blemishless, he was entitled to the relief of specific Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 8 performance. So, the learned trial court has also erred in law. The findings of the learned trial court on issue no. 1 declining the relief of specific performance to the plaintiff are liable to be set aside, accordingly, are set aside. Issue no.1 is accordingly decided in favour of the plaintiff entitling him relief of specific performance."
Aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, the defendants have filed the instant appeal.
Noticing the contentions raised, this Court passed the following order on 3.2.2012:
"Heard.
The defendants-appellants is in second
appeal before this Court.
Learned counsel submits that the 1st
appellate Court has decreed the suit of the plaintiff-respondent for specific performance in relation to the agreement to sell dated 20.09.2005. It is submitted that the plaintiff's own case as set up in the plaint was to the effect that the possession of the suit property was delivered on the date of execution of the agreement to sell itself. There is no dispute as regards the fact that the agreement to sell dated 20.09.2005 was not registered. In view of the amendment in Section 17(1A) w.e.f. 24.09.2001 read with Section 49(c ) Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 9 of the Registration Act, 1908 and Section 53(A) of the Transfer of Property Act, the agreement to sell wherein possession has been handed over, was required to be registered and in the absence of registration of such agreement, the suit for specific performance could not have been decreed.
Learned counsel appearing for the appellant places reliance upon RSA No.4946 of 2011 wherein, a conflict regarding the legal position as to whether the suit for specific performance can be decreed on the basis of an un-registered agreement to sell in view of Section 17(1A) of the Registration Act, 1908 and other provisions, was noticed in two judgments rendered by this Court in Gurbachan Singh Versus Raghubir Singh 2010 (2) Punjab Law Reporter 511 and Birham Pal & others Versus Niranjan Singh and another, 2011 (2) Law Herald (Punjab and Haryana) 1136 and the matter has been referred to the Division Bench to decide the question of law.
Notice of motion for 06.02.2012.
To be heard along with RSA No.4946 of 2011.
Meanwhile, execution proceedings in relation to the impugned judgment and decree shall remain stayed."
Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 10 However, it could not be disputed before this Court that vide judgment dated 12.10.2012 passed in RSA No.4946 of 2011, a Division Bench of this Court held that an agreement to sell was not compulsorily registerable and the question raised at the time of motion hearing, as noticed above, does not arise in the appeal, however, counsel for the appellants has vehemently argued that the Lower Appellate Court was not right in law while decreeing the suit of the plaintiff-respondent for specific performance of the agreement to sell in question as the Lower Appellate Court has failed to appreciate the fact that the plaintiff-respondent was not having the required amount in his possession to perform his part of the agreement to sell and thus, it cannot be said that he was ready and willing to perform his part of the agreement and as he does not fulfill the ingredients of Section 16 (c ) of the Specific Relief Act, 1963 as it is well settled that continuous readiness and willingness of the plaintiff must be proved before granting the decree for specific performance of the contract. It is the case of the appellants that even if execution of the agreement to sell in question is proved, still it was imperative upon the plaintiff- respondent to prove his readiness and prove performance of his part of contract. Since in the instant case, he has failed to show that he was having sufficient amount and expenses on the stipulated date, the findings are liable to be reversed.
Counsel for the appellants states that the following substantial question of law arises in this appeal:
Whether the plaintiff was ready and willing to perform his part of agreement to sell dated 20.9.2005 and was interested to get the sale deed executed in his favour on payment of balance sale Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 11 consideration?"
However, on the other hand, counsel for the respondent has supported the findings of the Lower Appellate Court and has submitted that from the evidence on record, readiness and willingness of the plaintiff- respondent to perform his part of agreement stood proved and thus, no exception can be taken to the findings.
I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.
In the present case, the last date to get the sale deed executed was 19.2.2006. But, it was decided by the parties to be present in the office of Sub Registrar, kalka on 17.2.2006. There is no dispute on the aforesaid facts, however, according to the plaintiff-respondent, the defendant-appellants did not turn up on that date to execute the sale deed. Though the argument has been raised on behalf of the appellants that the respondent has failed to prove the fact that he was having the balance amount of sale consideration and enough amount for other expenses and therefore, it is to be concluded that the plaintiff-respondent was not ready and willing to perform his part of the contract, such an argument is liable to be rejected simply on the ground that in the instant case, the plaintiff-respondent has shown that he had come to the Sub Registrar office on 17.2.2006, 20.2.2006 and 21.2.2006 and he also got his presence marked on these three dates. In his statement, he has specifically stated that he was ready with the balance sale consideration, along with other expenses. There is no rebuttal to the aforesaid evidence on record. Admittedly, the appellants have failed to show any document that they were present on stipulated date before the Sub Registrar, Kalka for executing the sale deed. They have also not refuted the statement of Saini Pushpinder 2013.08.27 17:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5002 of 2011 (O&M) 12 the respondent that he was having the balance amount and expenses on the stipulated date. Further readiness and willingness of the plaintiff- respondent is proved from the fact that after the stipulated date, he immediately brought the suit as the defendant-appellants failed to turn up to get the sale deed executed. In the absence of any material on record to challenge the aforesaid assertions on behalf of the appellants, this Court is of the view that no exception can be taken to the findings of the Appellate Court. In fact, on the basis of arguments raised, counsel for the appellants wants this Court to take a different view than the view taken by the Lower Courts which is not permissible in law.
Thus, no substantial question of law, as raised, arises in this appeal.
Dismissed.
August 23, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.08.27 17:33
I attest to the accuracy and
integrity of this document
High Court Chandigarh