Himachal Pradesh High Court
Ram Lal And Anr vs Sudesh Kumar And Ors on 14 June, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 8 of 2005
Judgment reserved on 31.5.2016
.
Date of Decision: 14.6.2016.
______________________________ _________________________
[
Ram Lal and Anr. .........Appellants.
Versus
Sudesh Kumar and Ors. ..........Respondents.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
rt
For the appellants: Mr. N.K. Thakur, Senior Advocate
with Ms. Jamuna, Advocate.
For the respondents: Mr. Satya Vrat Sharma, Advocate.
_________________________________________________________
Sandeep Sharma, J.
Present second appeal filed under Section 100 CPC is directed against the judgment dated 3.11.2004, passed by the learned District Judge, Una, HP, in Civil Appeal No. 30 of 2003, titled "Shankar Das deceased now represented by L.Rs. (a) Ram Lal (b) Sham Lal v. Sudesh Kumar and Ors.,", whereby the appeal filed by the present appellants was partly allowed and they were held entitled Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -2-to refund of ` 20,000/- with interest @6% p.a. from the date of filing of the suit till its payment.
.
2. The briefly stated facts necessary for the adjudication of the case are that appellants-plaintiffs filed a suit for specific performance of contract/agreement dated 7.12.1992, executed by the defendants through their father of Shri Kishori Lal, General Attorney, for the sale of suit land measuring 39 Kanals 1 Marlas being 1/4th share out of the rt total land measuring 147 Kanals 6 Marlas, bearing Khewat Nos. 34,36,42,44,45, 46 Khatauni Nos. 41, 44, 66, 69,71, 72, 73 Khasra Kitas 52 as entered in Misal Hakiat Bandobast Jadid Sani for the Year, 1988-89, situated in Up Mahal Chabba Nagar, Mahal Santoshgarh District. Una, H.P. Apart from above, an alternative prayer was made for recovery of ` 20,000/-.
3. Perusal of the agreement to sell Ext.PW1/A suggests that sale deed was to be executed by or on 15.6.1993. As per averments contained in the plaint, defendants despite several requests, failed to execute the sale deed and as such, plaintiff was compelled to file the suit ::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -3- for specific performance. Defendants by way of written statement refuted the claim of the plaintiff and specifically .
stated that since plaintiff failed to make payment of balance amount in terms of agreement dated 15.6.1993, they were not under any obligation to get the sale deed executed.
However, the fact remains that vide written statement, of defendants admitted the execution of the agreement as well as receipt of ` 10,000/- as earnest money from the rt plaintiff at the time of entering into aforesaid agreement to sell.
4. Careful perusal of averments contained in the plaint suggests that plaintiff was always ready and willing to get the sale deed executed on or before 15.6.1993 after payment of balance sale consideration but defendants on one pretext or other kept on deferring the execution of the sale deed. As per plaintiff, since defendants were under obligation to get the sale deed executed on or before 15.6.1993, balance payment, if any, in terms of agreement dated 15.6.19993, was to be made at the time of execution of sale deed. Plaintiff also averred that he was handed over ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP -4- the possession of the suit land immediately on 7.12.1992. In the aforesaid pleadings, plaintiff prayed for decree of .
specific performance of contract/agreement to sell for the execution of sale deed for the land, detail whereof has been given above, and in the alternative decree for recovery of ` 20,000/- with further interest @12% p.a. The plaintiff also of prayed that he may be granted every relief for which he may be found entitled in the instant case. Since defendants rt failed to get the sale deed executed within stipulated time, plaintiff got the legal notice dated 28.8.1993, served upon him on the address mentioned in the agreement to sell dated 7.12.1992. Though, defendants in their written statement admitted the factum with regard to entering into agreement to sell on 7.12.1992 and receipt of ` 10,000/-, but specifically denied that plaintiff was ready and willing to perform his part in terms of agreement. It is contended in written statement that failure on the part of the plaintiff to make the payment of balance consideration on or before 15.6.1993 rendered the agreement to sell dated 7.12.1992 null and void and as per the terms of the said agreement, ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP -5- amount of ` 10,000/- paid as advance also stands forfeited since plaintiff never performed his part of the contract by .
15.6.1993. Refusal on the part of the defendants was duly conveyed to the plaintiff in his house complex in presence of the respectable persons of the locality. In his written statement, defendants stated that alleged willingness of the of plaintiff after due date after 15.5.1990, carries no meaning and it is denied that plaintiff made repeated requests to rt defendants to execute the sale deed. Rather on many occasions, defendants requested the plaintiff to make the balance of the consideration so that sale deed is executed on or before 15.6.1993. It is also stated in the written statement that notice dated 28.8.1993, if any, allegedly got served by the plaintiff on the defendants after due date has no bearing or binding on the rights and interests as well as title of the defendants in and over the suit land.
5. Learned trial Court on the basis of pleadings available on record framed following issues:-
"1. Whether the plaintiff is entitled for relief of specific performance of contract on the basis of ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP -6- agreement dated 7.12.1992 and in the alternative for recovery of Rs. 20,000/- as alleged? OPP.
2. Whether plaintiff has no locus standi to file the suit .
as alleged ? OPD.
3. Whether plaintiff has no cause of action as alleged? OPD.
4. Relief."
of
6. Learned trial Court after appreciating material available on record, dismissed the suit of the plaintiff with rt costs vide judgment dated 27.2.2003.
7. Feeling aggrieved and dissatisfied with the judgment dated 27.2.2003 passed by learned Senior Sub-
Judge, District Una, present appellants filed an appeal in the court of learned District Judge, Una, i.e. Civil Appeal No. 30 of 2003. Learned first appellate Court vide judgment dated 3.11.2004 partly allowed the appeal preferred by present appellants, whereby plaintiff(s) was held entitled to refund of ` 20,000/- with interest @6%p.a. from the date of filing of suit till its payment by Shri Kishori Lal, General attorney to the defendants with costs. Being dissatisfied with the judgment dated 3.11.2004 passed by learned District Judge, Una, as ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP -7- referred above, appellants-plaintiffs filed instant regular second appeal under Section 100 CPC before this Court.
.
8. This Court vide order dated 7.1.2005 admitted the appeal at hand on following substantial questions of law:-
"1. Whether the Courts below are legally justified to of make out a case for the defendants beyond their pleadings to non-suit the plaintiffs/appellants?
2. Where the agreement to sell and receipt of rt earnest money is admitted, the refusal to grant the decree for specific performance is illegal?
3. Whether the impugned judgments are the result of misconstruction and misinterpretation of law and facts and deserve to be quashed and set-aside?
4. The specific performance of the contract is a rule and refusal is an exception and on this principle of law the contrary judgments of the Courts below are erroneous judgments of the Courts below are erroneous and deserve to be quashed and set aside?
9. Mr. N.K. Thakur, Senior Advocate, duly assisted by Ms. Jamuna, Advocate, representing the appellants, vehemently argued that the judgment passed by the court below, whereby relief of specific performance by way of direction to execute the sale deed has been declined, ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP -8- deserves to be quashed and set aside as the same are against the law and facts available on record. He .
contended that courts below has not appreciated the evidence available on record in its right perspective, rather, judgment is passed on conjectures and surmises and, as such, deserves to be quashed and set aside. It is contended of on behalf of the appellants that both the courts below failed to appreciate the candid admissions made by respondents-
rt defendants in the written statement, whereby factum with regard to execution of the agreement dated 7.12.1992 as well as receipt of ` 10,000/-, as advance, has been admitted.
As per Mr. Thakur, since execution of agreement and receipt of earnest money was admitted by the defendants, courts below had no option but to decree the suit of specific performance of the contract by issuing directions to defendants to execute the sale deed after receipt of balance consideration. He forcefully contended that as per agreement dated 7.12.1992, defendants were bound to get the sale deed executed on or before15.6.1993, after receipt of balance amount of consideration, which was payable at ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP -9- the time of registration of the sale deed. Mr. Thakur, contended that case set up by the defendants in the written .
statement could not be accepted at all by the courts below because averments contained in the same has not been appreciated by the courts below in light of terms and conditions of the agreement dated 7.12.1992, whereby it was of specifically stipulated that balance amount of consideration would be payable by the plaintiff at the time of execution of rt the sale deed. Since defendant failed to get the sale deed executed well within stipulated time, plaintiff had no occasion, whatsoever to make balance payment of ` 47,000/-, which was admittedly to be made at the time of execution of sale deed. Mr. Thakur, contended that judgment of lower appellate Court ordering the refund of the earnest money is totally illegal, especially, when it stood proved on record that plaintiffs were ready and willing to perform their part of the agreement on or before stipulated date and in the facts and circumstances as well as evidence led on record, courts below should have directed the respondents to execute the sale deed in terms of ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 10 -
agreement. He stated that specific performance is a rule and refusal is an exception. It is contended that when courts .
below had come to conclusion after appreciating the evidence on record that defendant-respondent cannot be allowed to retain the benefit of the agreement as it would amount to unjust enrichment to the defendants, natural of consequence thereof was to pass decree of specific performance against the defendants. During arguments rt having been made by him, he invited attention of this Court to the judgments passed by the courts below as well as statements made by the witnesses adduced by the parties to demonstrate that courts below misconstrued, mis-read and misinterpreted the facts and law applicable to the facts of the case. He submitted that careful perusal of the judgments passed by the courts blow suggests that court below have gone above the board to set up new case for the defendants. He stated that perusal of the written statement filed by the defendants nowhere suggests that any plea with regard to vagueness, ambiguity and uncertainties in the terms and conditions of agreement were ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 11 -
taken by the defendants but both the courts below despite there being no such pleas as referred above, declined the .
relief of specific performance terming the agreement in question to be vague and evasive. He prayed that in the facts and circumstances as well as discrepancies having been pointed out during the arguments, judgments passed of by courts below deserve to be set aside in as much as prayer for grant of relief of specific performance has been rt declined/ denied by the courts below.
10. Per contra, Shri S.V. Sharma, Advocate, appearing on behalf of the defendants supported the judgments passed by both the courts below. He strenuously argued that material available on record clearly suggests that plaintiff failed to perform its part of the agreement, whereby plaintiff was under obligation to make balance amount of consideration on or before 15.6.1993. Since balance amount of consideration was not paid to the defendants within a stipulated time, defendants were not under obligation to get the sale deed executed in terms of agreement dated 2.12.1992. He forcefully contended that ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 12 -
plaintiff has miserably failed to prove that he was ready and willing to perform his part in terms of agreement because .
none of the witnesses led by the plaintiff has supported the averments contained in the plaint. He contended that though plaintiff has stated that repeated requests were made to the plaintiff to get the sale deed executed but of there is nothing on record to conclude that such requests were ever made by the plaintiff. To the contrary, defendants rt have been able to prove that after a stipulated date 15.6.1993, he in the presence of respectable persons of locality went to the house of Shri Kishori lLal, General Attorney of plaintiff to inform that now after expiry of stipulated date, defendants are not ready and willing to get the sale deed executed as was agreed vide agreement to sale. He further stated that no interference, whatsoever, of this Court is called for in the facts and circumstances of the case, where both the courts below after examining the evidence available on record have rejected the prayer of the plaintiff to issue decree for specific performance against the defendants. He contended that now in view of the ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 13 -
judgment passed by the first appellate Court, where the defendants were directed to refund amount of ` 20,000/-
.
along with 6% interest, prayer made by plaintiff in alternate has been accepted and as such, present appeal is not maintainable.
11. I have heard learned counsel for the parties as of well carefully gone through the record.
12. Though, while admitting the instant appeal for rt hearing, this Court formulated four substantial questions of law, as have been reproduced above, this Court intends to take substantial question No. 2 at the first instance, for its consideration because while critically examining the evidence available on record to answer the question No. 2, question No. 3 would be answered automatically.
13. Careful perusal of the pleadings on record, as have been discussed above, clearly suggests that parties to lis had entered into an agreement to sell for the sale of suit land for total consideration of ` 57,000/- and a sum of ` 10,000/- was received by Shri Kishori Lal , General Attorney of defendants as earnest money. It is also not disputed that ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 14 -
sale deed was to be executed by or on 15.6.1993 in terms of agreement dated 7.12.1992. As per the case set up by the .
plaintiff, since defendants failed to get the sale deed executed by 15.6.1993, despite several requests, he was compelled to file suit for specific performance in the court of learned Senior Sub-Judge, Una, whereas defendants while of admitting the execution of the agreement as well as receipt of earnest money, denied that despite several requests, rt defendants failed to get the sale deed executed. To the contrary, defendants set up a case that since plaintiff failed to make balance payment of ` 47,000/- on or before 15.6.1993, defendants could not get the sale deed executed within stipulated period in terms of contract or agreement to sale dated 7.12.1992. Since factum with regard to execution of the agreement to sell as well as receipt of earnest money is not denied by the defendants, moot question which requires consideration of this Court is that "whether the plaintiff was ready and willing to perform his part on or before 15.6.1993 or not in terms of agreement to sell Ext.PW1/A? Another question, which requires consideration ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 15 -
of this Court is that "whether defendants took any steps whatsoever, in terms of agreement dated 7.12.1992 .
Ext.PW1/A to get the sale deed executed on or before 15.6.1993 as was stipulated in the agreement Ext.PW1/A."
14. Plaintiff with a view to substantiate the averments contained in the plaint examined himself as PW1 of and by way of oral deposition reiterated the contents of the plaint. Perusal of the statement made by the plaintiff rt suggests that agreement Ext.PW1/A was written at the house of Kishori Lal, General Attorney of defendants, who himself scribed the document. It has come in his statement that in year, 1992, defendant agreed to sell the suit land (as discussed above), in favour of plaintiff of the total consideration of ` 57,000 and ` 10,000/- was received by defendant in advance as an earnest money. It has also come in his statement that neither he saw the power of attorney executed in favour of attorney namely Kishori Lal nor he perused the revenue papers pertaining to the land at the time of scribing of agreement Ext.PW1/A. He also admitted in the cross-examination that there is no mention in ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 16 -
the agreement with regard to extent of land, which was to be sold in terms of agreement Ext.PW1/A. He also stated in .
his cross-examination that since he has not read the contents of power of attorney, he cannot say whether Kishori lal had any right to execute the agreement to sell. However, in his cross-examination, he stated that he along with Shankar of visited the house of Kishori Lal but he was not at home. It has also come in his statement that as per agreement Ext.PW1/A rt defendants had agreed to sell the whole land situated in Santoshghar, Chabba Nagar, Takhatpur and Jatpur for the total consideration of ` 57,000/- and earnest money amounting to ` 10,000/- was paid to the defendant on the spot and remaining balance consideration was to be paid at the time of execution of sale deed, which was to be executed on or before 15.6.1993. It has come in his statement that Kishori Lal was repeatedly asked to get the sale deed executed but Kishori Lal went to Chandigarh and did not execute the sale deed. Then he got the legal notice Ext.PW1/B issued to the defendants, postal receipt whereof is Ext.PW1/C. It has also come in his statement that notice was ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 17 -
received back vide Ext.PW1/D along with Ext.PW1/E. He also stated that he is ready and willing to purchase the land after .
making payment of balance amount. He admitted that he had not seen the record at the time of scribing of agreement to sell i.e. Ext.PW1/A and he had not seen revenue record.
He further stated that he did not know as to what extent of Santosh Kumari, Naresh Kumar and Parveen Kumari are the owners of the suit land. However, he stated in cross-
rt examination that agreement to sell was for 40-41 kanals. He denied in the cross-examination that agreement to sell was executed by Kishori Lal against the wishes of original owners of the land. It has come in his cross-examination that Kishori Lal had not come to village from 1992 -93 nor he met him in village and Santoshgarh. He also admitted that notices were sent on the address of village, though, he stated in his cross-
examination that in the month of June, 1993, he along with Om Parkash had gone to Village Bharolian Kalan.
15. PW2 Shri N.K. Chabha, Advocate District Court proved the signatures of late Shri Om Parkash Kapila, who had signed as witness on the agreement to sell. He in his ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 18 -
statement stated that he knew Om Parkash Kapila and he could decipher/was familiar/acquainted with the signatures .
of Om Parkash Kapila. He stated that signatures encircled with red circle Ext.PW1 is the signature of Sh. Om Parkash Kapila.
16. PW3 Kishori Lal s/o Shri Dheru Ram, supported of the version put forth by PW1. He stated that signatures mark-
X on the agreement are his signatures and he also supported rt the version of PW1 with regard to execution of the agreement, whereby suit land was agreed to be sold for the total consideration of ` 57,000/- and ` 10,000/- was received as advance by the defendants. He also stated in examination-in-chief that when he signed on that agreement, neither he saw the power of attorney executed in favour of the Kishori Lal nor he saw the revenue papers.
He also stated in cross-examination that it is correct that there is no description with regard to land in agreement. He also admitted that there is no mention in the agreement qua the extent of land in a particular village. He also stated in cross-examination that as per agreement, if registry is not ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 19 -
executed on or before 15.6.1993, agreement would be rendered meaningless. He also admitted that Kishori Lal had .
visited the house of Shankar but he did not know for what purpose he had gone to the house of Kishori Lal. He also admitted in his cross-examination that he and Shankar had gone to house of Kishori Lal but he was not at home. He of categorically stated that aforesaid narration of facts given by him is of period prior to 15.6.1993. He also admitted that rt Kishori Lal kept on meeting him after 15.6.1993. He also admitted that "it is correct that Kishori Lal had stated that now Naresh Kumari and Santosh Kumari etc. do not want to sell the land."
17. Conjoint reading of the statements of plaintiff witnesses, as discussed above, suggests that parties entered into an agreement , wherein there is stipulation to get the sale deed executed for the sale of suit land on or before 15th June, 1993. It also emerges from the aforesaid statements that admittedly sale deed was not got executed in terms of agreement Ext.PW1/A within stipulated period. But careful reading of aforesaid witnesses produced by plaintiff ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 20 -
nowhere suggests that plaintiff was ready and willing to get the sale deed executed within the stipulated period .
because save and except bald statement that despite several requests made by plaintiff, defendants failed to execute the sale deed executed in terms of Ext.PW1/A, no material worth the name has been placed on record from of where it could be inferred that after execution of agreement Ext.PW1/A, plaintiff made an effort to get the sale deed rt executed. True, it is that as per agreement, sale deed was to be executed by the defendant after payment of balance consideration amount i.e. ` 47,000/- but there is nothing more in the statement of PW1 save and except that when defendant was asked to get the sale deed executed, he went to Chandigarh. Moreover, PW3 has nowhere stated that the plaintiff insisted upon the defendant to get the sale deed executed on or before 15.6.1993. Rather careful perusal of the cross-examination of PW3 suggests that defendant visited the house of plaintiff Shankar. It has also emerged from the statement of PW3 that defendant Kishori Lal Kept on meeting even after 15.6.1993, which suggests ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 21 -
that defendant namely Kishori Lal was ready and willing to get the sale deed executed in terms of agreement. Conjoint .
reading of statements given by PWs 1 and PW3 nowhere suggests that any effort, whatsoever, was made by the plaintiff to persuade the defendant to get the sale deed executed in terms of agreement. Though balance amount of of consideration was to be paid at the time of execution of sale deed but definitely, plaintiff was to express his willingness rt to purchase the land to the defendant by telling him that he is ready with the balance amount of consideration as agreed in terms of agreement so that defendant could get the sale deed executed. Since the very element of readiness and willingness is completely missing in the statements rendered by PW1 and PW3 as well as averments made in plaint, it cannot be accepted that plaintiff was actually ready and willing to perform his part. Admittedly, there is nothing on record suggestive of the fact that plaintiff ever expressed his readiness and willingness to the defendant with regard to the execution of the sale deed after payment of balance amount of consideration. Though, ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 22 -
perusal of the agreement in question suggests that balance amount of consideration was to be paid at the time of .
registration of sale deed but for that plaintiff was expected to inform defendant either by words or by some written communication disclosing therein that he is ready with the balance amount of consideration and as such sale deed of may be got executed in terms of agreement.
18. To the contrary, if the statement of DW1 Kishori Lal, rt General Attorney, of defendants is seen, who categorically denied that notice was ever received by him and plaintiff repeatedly asked him to execute the sale deed after getting balance amount of consideration. Careful perusal of cross-examination of DW2 clearly suggests defendant No. 1 stuck to his statement, which he made in examination-in-chief, wherein he categorically denied the suggestion that plaintiff had offered balance amount of consideration and he dilly-dallied. He also stated in his cross-
examination that after his retirement, he sometimes resides in village and sometimes in Chandigarh.
::: Downloaded on - 15/04/2017 20:34:57 :::HCHP- 23 -
19. DW2 Baldev Chand also stated that defendant Kishori Lal repeatedly asked the plaintiff to make payment of .
balance amount of consideration but plaintiff did not take any interest. He categorically stated that in 1993, he along with Kishori Lal went to the house of plaintiff and informed him that since date of agreement has expired, he may treat of the agreement to sell cancelled. In his cross-examination, he stated that in the end of June, 1993, he along with rt defendant had gone to the house of plaintiff to refuse plaintiff. He denied that plaintiff ever stated that he is ready and willing to execute the sale deed after taking balance amount of consideration. He also denied that Kishori Lal defendant dilly-dallied.
20. From conjoint reading of statements given by defendants No. 1 and 2, it clearly emerges that defendant was ready and willing to perform his part but since no offer, whatsoever, with regard to payment of balance of consideration had come from plaintiff, sale deed could not be executed, rather factum with regard to informing the plaintiff by defendant that he was no more interested in ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 24 -
execution of the sale deed after expiry of stipulated period duly stands proved on record in view of the statement given .
by these two defendant witnesses. It has specifically come in the statement of these two defendant witnesses that defendants were ready and willing to perform their part for execution of the agreement in question in terms of of agreement to sell Ext.PW1/A. As has been observed above that, in the given facts and circumstances, plaintiff was rt expected to express willingness by way of offering balance amount of consideration to the defendant that too before 15.6.1993 to enable defendant to execute the sale deed in terms of agreement but in the present case, there is no evidence worth the name available on record to suggest that plaintiff actually expressed any willingness by offering money to defendant before 15.6.1993 and, as such, it cannot be said that defendants failed to perform their part as far as execution of the agreement in question is concerned.
Moreover, careful reading of the statement given by PWs1, PW3 and the agreement Ext.PW1/A suggests that admittedly there were no specific details with regard to land proposed ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 25 -
to be sold in agreement in question. Rather, careful reading of the statements made by these plaintiff witnesses suggests .
that factum with regard to authority, if any, in favour of defendant to sell the land, which admittedly belonged to his children, was never ascertained by the plaintiff at the time of scribing of the agreement to sell. Undisputedly, there is no of specific detail with regard to land proposed to be sold by defendant and, as such, finding returned by both the courts rt below that agreement in question is vague, uncertain, ambiguous and evasive cannot be faulted with because admittedly, no decree for specific performance could be granted by courts on the basis of vague agreement, wherein no detail whatsoever with regard to the suit land has been mentioned. No decree, as prayed for, by the plaintiff could be granted by the court below on the basis of agreement in question in the absence of specific details of the property.
Plaintiff by way of suit prayed for decree of specific performance against the defendant to get the sale deed executed in terms of agreement or in alternative suit for recovery of ` 20,000/-. In the present case on the basis of ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 26 -
documents available on record as well as statements made by the plaintiff witnesses, certainly no decree for specific .
performance could be issued however alternative prayer as was made by the plaintiff has been granted by the learned first appellate Court, whereby direction has been issued to defendant to pay amount of ` 20,000/- along with 6 % of interest. In other words, in view of the decision rendered by the first appellate Court, alternative prayer made by plaintiff rt has been accepted by the first appellate Court.
21. In view of the aforesaid discussion, this Court has no hesitation to conclude that plaintiff has not been able to prove on record that he was ready and willing to perform his part in terms of agreement to sell Ext.PW 1/A. To the contrary, defendant by leading cogent, convincing and reliable evidence has established on record that they were ready and willing to perform their part in terms of agreement for execution of sale deed but since no amount in the shape of balance amount of consideration was offered, there was no occasion for defendant to get sale deed executed on or before stipulated date. Moreover, as has been discussed in ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 27 -
detail above, plaintiff has not led any evidence on record to suggest that he had taken any steps to perform his part in .
terms of agreement to sell. Save and except bald statement that plaintiff repeatedly asked defendant to get the sale deed executed, there is no material on record, which could persuade this Court to accept the contention of the of appellants that defendants dilly-dallied and purposely did not get the sale deed executed in terms of agreement Ext.PW1.
rt
22. By now, it is well settled principle that in a suit for specific performance of contract, it the duty of the plaintiff to aver and prove that he was ready and willing to perform the essential terms of contract because specific performance of a contract cannot be enforced in the absence of specific averment with regard to readiness and willingness to perform his part in terms of contract but at the same time, onus is always upon the plaintiff to prove that he was or has always been ready and willing to perform his part in terms of the contract. Mere statement that he was always ready and willing to perform his part may not be sufficient to ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 28 -
prove that he was ready and willing to perform his part in terms of agreement, rather, plaintiff to prove that he was /is .
ready and willing to perform his part is required to show from his conduct that he actually made an effort to perform his part in terms of the agreement/contract. Factum whether plaintiff was ready and willing to perform the essential terms of of the contract is required to be determined by taking into consideration the entirety of the circumstance, the conduct rt of parties as well as terms of the contract. In the present case, save and except, statement given by the plaintiff that he was ready and willing to perform his part of contract cannot be termed sufficient for granting decree of specific performance. In the present case, plaintiff has neither placed on record any document suggesting that he took some initiative to make balance amount of consideration to the defendant, which would have further compelled defendant to get the sale deed executed in terms of the agreement in question nor plaintiff led any oral evidence on record to suggest that he, before the expiry of stipulated date, went to defendant offering him balance amount of ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 29 -
consideration to express readiness and willingness to perform his part of agreement rather, he stated in examination-in-
.
chief that he repeatedly asked defendant to get the sale deed executed but he dilly-dallied. He nowhere stated that he informed the defendant that he is ready and willing with the balance amount of consideration and he nowhere of stated that he asked the defendant to come before the Sub-
Registrar for registration of sale deed in terms of agreement in question.
rt Hence, this Court merely on the basis of statement of plaintiff that he was ready and willing to perform his part, cannot accept the plea of readiness and willingness put forth by the plaintiff. In this regard, reliance is placed upon the judgment rendered in Kirpal Singh v. Mst.
Kartaro and others. AIR 1980 Rajasthan 212. The relevant paras of which read as under:-
9. It is well established that in a suit for specific performance of the contract it is the duty of the plaintiff to aver and prove that he was and is ready and willing to perform the essential terms of the contract. In this connection reference may be made to Section 16(c) of the Specific Relief Act, 1963 (which will hereinafter be referred to as 'the Act'), which provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he was or has ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 30 -
always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or .
waived by the defendant. An explanation has further been appended to Sub-section (c) which reads as under:--
"Explanation. For the purposes of Clause (c):
(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in of court any money except when so directed by the court;
(ii) The plaintiff must aver performance of, or rt readiness and willingness to perform, the contract according to its true construction."
10. Clause (c) is a new one. It lays down a condition precedent to the enforcement of specific performance of a contract. It is based on the maxim 'he who seeks equity, must do equity' and more so in the cases of specific performance. We have, therefore, to see whether the plaintiff has complied with this essential requirement of law for seeking specific performance. In para No. 1 3 of the plaint it has been alleged that the plaintiff paid to the defendant Rupees 2000/- as earnest money or a part of the purchase price on 2-9-1967 and demanded the possession of a part of the land as stipulated on 13-1-1968, but the defendant did not hand over the possession of the same. It is also alleged that in accordance with the terms of the agreement the plaintiff was always ready and willing to get the sale deed registered on payment of Rs. 10,960/-, balance of the sale price and called upon the defendant several times to accept the money and execute the sale deed and get it registered but the defendant went on evading. It is further stated, that on 13-1-1968 he asked the defendant to execute the sale deed, but the defendant did not comply, nor got the sale deed ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 31 -
registered on 15-1-1968 as agreed between the parties, and that on 15-1-1968 he went to the office of the Registrar or Sub-Registrar, Ganganagar, by whatever designation he may be called, with the .
sale money, but the defendant did not turn up, and thus the defendant neither executed the sale deed nor got it registered. He has also alleged that he has been always ready and will-ins to perform his part of the contract, and is even now ready and willing to do so, but the defendant has committed breach of agreement. In the written statement the defendant, in the first instance, took the plea that he had not of received Rs. 2000/- at the time of execution of the document, a plea which was negatived by the trial court and not argued either before the learned Single Judge or before us and then while replying to para No. 3 it was pleaded as below:--
rt "Para No. 3 of the plaint is denied. The plaintiff did not pay any amount and hence no question arises of delivering possession of the land to him. The defendant is in possession of his land in dispute as usual. All the allegations contained in para No. 3 of the plaint are denied."
11. It may be noticed that the defendant has not specifically denied the various allegations made by the plaintiff in para No. 3 of the plaint. On the other hand a general denial has been made. Order 8, Rule 3, Code of Civil Procedure lays down that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. Rule 5 further provides that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability. Now, in the present case, no doubt, there is a general denial of the allegations contained in para 3 of the plaint. But there is a specific denial only with respect to receiving Rs. 2000/- at the time of execution of the ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 32 -
document. A number of other material allegations contained in that para have not been specifically denied. It is also significant that no issue has been struck on the question whether the plaintiff was .
ready and willing to perform his part of the contract.
However, since in the eye of law the plaintiff is bound to aver and prove the same we must look into the evidence to find out whether the allegation made by the plaintiff as to his readiness and willingness to perform hia part of the contract has been proved. But while doing so. we cannot lose sight of the fact that the defendant's denial in this of respect is evasive. P. W. 2 plaintiff Kirpal Singh has stated that he was ready and willing to get the sale deed registered in accordance with the terms of the agreement but the defendant did not comply. He further states that he went to the Registrar's office rt on the appointed date for getting the sale deed registered, but the defendant did nol turn up. He also states that he took the money with him, but the defendant was trying to back out of the agreement as the prices of the land had gone up. However, he wants the land. In the course of cross-examination he has stated that he had not given any written notice to the defendant for getting the sale deed registered but he did go to the defendant's house many a times. On the other hand, D. W. 1 Gujar Singh defendant has not said a word in this respect.
12. Mr. Hastimal has strenuously urged that the plaintiff has not supported in his statement the various allegations contained in para 3 of the plaint, and that there is nothing to show that he had purchased the stamps for execution of the sale deed and had also got prepared a draft of the sale deed. His contention is that these are the essential terms of the contract which the plaintiff was required to perform, and since he did not do so, he is not entitled to enforce specific performance. We are, however, unable to accept this contention. In order to find out whether the plaintiff was ready and willing to perform the essential terms of the contract which he was required to perform, we have to take into consideration the entirety of circumstances, the ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 33 -
conduct of the parties, and the essential terms of the contract.
14. Coming to the essential terms of the contract, .
Mr. Hastimal placed great reliance on two decisions of this Court: Mst. Suraj Bai v. Nawab Mohammad Mukarram Ali Khan, ILR (.1969) 19 Raj 508 and Dhanbai v. Pherozshah, 1970 Raj LW 594 in support of his contention that the defendant should have purchased the stamps for execution of the sale deed and should have also got prepared a draft of sale deed. It is important to note that in the of agreement Ex. 1 it is nowhere provided that the plaintiff would purchase the stamps and would also get prepared a draft of the sale deed. Thus these are not the essential terms of the contract. It is true that under the T. P. Act unless there is a contract to rt the contrary it is the duty of the buyer to pay for the stamps as well as to get a draft of the sale deed prepared. But in the facts and circumstances of the case, we are of the opinion that this was not the essential term of the contract. But apart from that the stage for purchasing the stamps and getting a draft prepared was not at all arrived at in this case, inasmuch as it is not the defendant's case that he wanted to execute the sale deed but was prevented from doing so on account of the omission on the part of the plaintiff to provide money for purchasing stamps and getting! a draft of the sale deed prepared. In this' view of the matter the rationale of the decision in Mst. Suraj Bai v. Nawab Mohammad Mukarram Ali Khan has no application to the facts of this case. So also in Dhanbai v.
Pherozshah, there was no allegation contained in the plaint that the plaintiff was always ready and willing to perform his part of the contract. Learned counsel also relied upon Ardeshir v. Flora Sassoon, AIR 1928 PC 208; Gomathinayagam Pillai v. Palaniswami Nadar AIR 1967 SC 868, as also a few cases of other High Courts: Bishwanath v. Janki Devi, AIR 1978 Pat 190, G. Shivayya v. Shivappa Basappa, AIR 1978 Kant 98, Mahmood Khan v. Ayub Khan, AIR 1978 All 463 and Andhra Paper Mills v. State of Andhra, AIR 1961 Andh Pra 57. But we do not ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 34 -
consider it necessary to discuss these cases, as, in our opinion, the law is well settled that the plaintiff must aver and prove that he was ready and willing to perform the essential terms of the contract which .
he was required to perform. However, it depends upon the facts and circumstances of each case whether the plaintiff has averred and proved this essential requirement of law. In this connection we may refer to Ramesh Chandra v. Chuni Lal, AIR 1971 SC 1238 wherein their Lordships were pleased to observe as follows :--
of "Our attention has been invited to a statement in Halsbury's Laws of England, Vol. 34, Third Edn. at page 338 that in the absence of agreement to the contrary it is the purchaser who has to prepare the draft conveyance and submit it to the vendor for rt approval. No such point was raised at any prior stage and in any case we do not consider that after the cancellation of the agreement by the respondents it was necessary or incumbent on the appellants to send any draft conveyance. The very fact that they promptly filed the suit shows their keenness and readiness in the matter of acquiring the plot by purchase..... Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract."
23. Reliance is also placed upon the judgment rendered in J.P. Builders and another v. A. Ramadas Rao and Anr., 2011 (1) SCC 429, the paras are reproduced as below:-
"Readiness and Willingness ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 35 -
20. Section 16(c) of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that:
.
"16. Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person--,
a) who would not be entitled to recover compensation for its breach; or
b) who has become incapable of performing, or violates any essential of term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at rt variance with, or in subversion of, the relation intended to be established by the contract; or
c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.- For the purposes of clause
(c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
::: Downloaded on - 15/04/2017 20:34:57 :::HCHP- 36 -
22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial .
capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
23. In N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao & Ors., (1995) 5 SCC 115 at para 5, this Court held:
(SCCpp. 117-18) "5.....Section 16(c) of the Act envisages that plaintiff of must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the rt performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract."::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 37 -
24. It is ample clear from the judgment (supra) that words "ready" and "willing" implies that person was .
prepared to carry out the terms of the contract and readiness refers to financial capacity whereas willingness refers to conduct of the plaintiff wanting performance. In the present case, as has been discussed above, plaintiff has of failed to prove on record that he, at any point of time before expiry of stipulated period, informed the defendant rt that he was ready with the balance amount of consideration and, as such, sale deed may be got executed in terms of agreement.
25. As has been held in judgment referred herein above, the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance and to adjudge the readiness and willingness on the part of the plaintiff, conduct of the plaintiff prior and subsequent to filing of the suit is very important. The amount of consideration, which the plaintiff was supposed to pay as balance amount of consideration was necessarily proved to be available, which could only be ascertained ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 38 -
from the conduct of the plaintiff. In the present case, plaintiff, save and except making statement that he was .
ready and willing to perform his part, has not led any cogent and convincing material on record, which can compel this Court to infer that plaintiff was ready and willing to perform his part of the contract. Rather, PW3 in his statement of nowhere supported the version of PW1 with regard to repeated requests allegedly made by the plaintiff to the rt defendant for execution of the sale deed in terms of the agreement to sell, rather, he stated that plaintiff had visited the house of defendants but he did not know the purpose of the visit. Moreover, PW1 himself stated that when he tried to contact the defendant, he went to Chandigarh, meaning thereby, willingness and readiness was never conveyed to the defendant. It also remains fact that legal notice sent to the defendant by the plaintiff was received unserved by the plaintiff.
26. In the present case, learned first appellate Court while partly allowing the appeal preferred by present appellant ordered refund of Rs.20,000/- in terms of the ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 39 -
agreement in question. Perusal of the agreement Ext.PW1/A suggests that amount of Rs. 10,000/- was required to be .
forfeited in the event of nonpayment of balance amount of consideration by the plaintiff on or before stipulated date. In the present case, as emerges from the evidence available on record that plaintiff has miserably failed to prove that he of had performed his part of agreement by expressing his readiness and willingness but despite that alternative prayer rt of the plaintiff for decree for recovery of Rs. 20,000/- has been accepted by the Court and as such, this Court sees no reason to interfere with the judgments passed by the courts below. Hon'ble Apex Court while dealing with different types of agreements specifically held that "Where the sum named is an amount the payment of which may be substituted for the performance of the act at the election of the person by whom the money is to be paid or the act done", there is no ground for the Court to compel the performance of the other alternative of the contract. In the present case, where there is a specific stipulation in the agreement in question that in the event of not making balance amount of consideration ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 40 -
within stipulated period, earnest money paid at the time of execution of agreement to sell would be forfeited and in the .
event of non registration of sale deed by defendant within stipulated period, plaintiff would be entitled to double the amount of earnest money. Learned first appellate Court has already ordered for payment of Rs.20,000/- in favour of the of plaintiff and as such in view of the specific condition laid down in the agreement to sell, plaintiff is not entitled to rt specifically ask for decree specific performance calling upon the defendant to execute sale deed in favour of the plaintiff.
In this regard, reliance is also placed upon the judgment rendered in P.D.'Souza v. Shondrilo Naidu 2004 (6) Supreme Court Cases 649. The paras are reproduced as below:-
29. Clause (7) of the Agreement of Sale would be attracted only in a case where the vendor is in breach of the term. It was for the plaintiff to file a suit for specific performance of contract despite having any option to invoke the said provision. It would not be correct to contend that only because such a clause exists, a suit for specific performance of contract would not be maintainable.
30. Section 23 of the Specific Relief Act, 1968 read as under :
"23. (1) A contract, otherwise, proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 41 -
to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, .
is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.
(2) When enforcing specific performance under this section, the court shall not also of decree payment of the sum so named in the contract."
31. In M.L. Devender Singh & Ors. v. Syed Khaja, [1974] l SCR 312, the following statement of law rt appears: (SCC p. 522, para 16) "The question always is: What is the contract?
is it that one certain act shall be done, with a sum annexed, whether by way of penalty or damages, to secure the performance of this very act? Or, is it that one of the two things shall be done at the election of the party who has to perform the contract, namely, the performance of the act or the payment of the sum of money? If the former, the fact of the penal or other like sum being annexed will not prevent the Court's enforcing performance of the very act, and thus carrying into execution the intention of the parties; if the latter, the contract is satisfied by the payment of a sum of money, and there is no ground for proceeding against the party having the election to compel the performance of the other alternative.
From what has been said it will be gathered that contracts of the kind now under discussion are divisible into three classes:
(i) Where the sum mentioned is strictly a penalty-a sum named by way of ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 42 -
securing the performance of the contract, as the penalty is a bond;
(ii) Where the sum named is to be paid .
liquidated damages for a breach of the contract;
(iii) Where the sum named is an amount the payment of which may be substituted for the performance of the act at the election of the person by whom the money is to be paid or the act done.
of Where the stipulated payment comes under either of the two first - mentioned heads, the rt Court will enforce the contract, if in other respects it can and ought to be enforced just in the same way as a contract not to do a particular act, with a penalty added to secure its performance or a sum named as liquidated damages, may be specifically enforced by means of an injunction against breaking it. On the other hand, where the contract comes under the third head, it is satisfied by the payment of the money, and there is no ground for the Court to compel the specific performance of the other alternative of the contract."
This Court further stated: (SCC p. 523, paras 20-21) "20. The fact that the parties themselves have provided a sum to be paid by the party breaking the contract does not, by itself, remove the strong presumption contemplated by the use of the words "unless and until the contrary is proved". The sufficiency or insufficiency of any evidence to remove such a presumption is a matter of evidence. The fact that the parties themselves specified a sum of money to be paid in the event of its breach is, no doubt, a piece of evidence to be considered in deciding ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 43 -
whether the presumption has been repelled or not. But, in our opinion, it is nothing more than a piece of evidence. It is not conclusive or decisive.
.
21. The second assumption underlying the contentions on behalf the Defendants- Appellants is that, once the presumption, contained in explanation to Section 12 of the old Act, is removed, the bar contained in Section 21 of the old Act, against the specific enforcement of a contract for which of compensation in money is an adequate relief, automatically operates, overlooks that the condition for the imposition of the bar is actual proof that compensation in money is rt adequate on the facts and circumstances of a particular case before the Court. The effect of the presumption is that the party coming to Court for the specific performance of a contract for sale of immovable property need not prove anything until the other side has removed the presumption. After evidence is led to remove the presumption, the plaintiff may still be in a position to prove by other evidence in the case, that payment of money does not compensate him adequately."
41. Raju, J. in the fact and circumstance of the matter obtaining therein held that it would not only be unreasonable but too inequitable for courts to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question preserved all along by the respondents No. l and 2 by keeping alive the issues pending with the authorities of the Government and the municipal body. It was in the facts and circumstances of the case held :
"23...Specific performance being an equitable relief, balance of equities have also to be struck taking into account all these relevant aspects of the matter, including the lapses which occurred and parties respectively ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 44 -
responsible therefor. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over .
the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into (sic consideration) the totality of circumstances of each case...."
42. The Court for arriving at the said finding gave opportunities to the parties to settle the matter and of the respondents No. l and 2 were prepared to pay upto Rs. 60 lakhs as against the demand of the appellant to the fine of rupees one and a half crores which was subsequently reduced upto Rs. 120 lakhs. In view of the respective stand taken by the parties, rt the Court inter alia directed the respondents No. l and 2 to pay a sum of Rs. 40 lakhs in addition to the sum already paid by them.
43. Bhan, J. however, while expressing his dissention in part observed: (SCCpp.506&507, paras 38 & 40) "38. It is well-settled that in case of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds. Further, the defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff.
40. Escalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. It would depend on the facts and circumstances of each case."
::: Downloaded on - 15/04/2017 20:34:57 :::HCHP- 45 -
27. Consequently in view of the detail discussion made herein above, this Court is of the view no decree of .
specific performance, whatsoever can be granted merely on the basis of admission by defendant with regard to existence of agreement to sell as well as receipt of earnest money in the absence of cogent and specific evidence led of on record by the plaintiff that he was ready and willing to perform his part in terms of agreement to sell, which is rt admitted by the defendant. In the present case, there is no material worth the name to suggest that the plaintiff performed his part by actually offering balance amount of consideration, which was condition precedent for execution of the sale deed in terms of agreement to sell. Mere plea that defendant was repeatedly asked by plaintiff to execute the sale deed may not be sufficient for plaintiff to discharge his onus, which was admittedly on plaintiff to prove that he had performed his part in terms of agreement. Accordingly, substantial question of law No. 2 is answered accordingly.
Since this Court while answering substantial question of law No. 2 examined evidence on record in detail, it can be ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 46 -
safely concluded that judgments passed by the courts below are based on correct appreciation of material evidence .
available on record and there is no mis-construction and mis-
interpretation of law as has been alleged by the plaintiff in the present appeal. Hence, question No. 3 is also answered accordingly. While examining the evidence on record, this of court had also occasion to peruse the impugned judgments passed by the courts below and it cannot be said in any rt manner that courts below have gone above the board to make the case for the defendants, rather, careful perusal of the judgments passed by the both the courts below suggests that same are based upon the evidence available on record, which certainly suggests that agreement to sell which has been sought to be enforced is vague, uncertain, ambiguous and evasive because no description of land proposed to be sold, has been given and as such courts below have rightly refused to grant decree of specific performance as prayed by the plaintiff in the absence of specific details of the suit land.
::: Downloaded on - 15/04/2017 20:34:57 :::HCHP- 47 -
28. There can be no quarrel with regard to the principle "specific performance is a rule and refusal is an .
exception" but as has emerged from the evidence available on record, plaintiff has failed to establish that he was ever ready and willing to perform his part in terms of agreement to sell dated 7.12.1992 and, as such, no decree for specific of performance, as prayed for, by the plaintiff could be granted by the courts below. Rather, careful perusal of the rt evidence led by the defendants leaves no doubt in the mind of this court that defendants were ready and willing to execute the sale deed in terms of agreement to sell but since no readiness and willingness was expressed by PW1 and no steps whatsoever, in the shape of offering balance amount of consideration were taken by the plaintiff and as such, no fault can be found with the judgments passed by the both the Courts below. Rather, learned appellate court held plaintiff entitled to refund of ` 20,000/- along with interest from the date of filing of the suit in terms of agreement to sell despite there being overwhelming evidence on record that defendant were ready and willing to perform their part in ::: Downloaded on - 15/04/2017 20:34:57 :::HCHP
- 48 -
terms of agreement. Accordingly, this Court sees no illegality and infirmity in the judgments passed by both the courts .
below and same accordingly deserve to be upheld. Present appeal is dismissed being devoid of any merit.
14th June, 2016 (Sandeep Sharma),
manjit Judge.
of
rt
::: Downloaded on - 15/04/2017 20:34:57 :::HCHP