Punjab-Haryana High Court
Gurjit Singh And Another vs Tarsem Singh And Another on 22 February, 2012
Equivalent citations: AIR 2013 PUNJAB AND HARYANA 8, (2012) 3 PUN LR 16, (2013) 1 CIVLJ 889, (2012) 3 CIVILCOURTC 481, (2012) 4 RECCIVR 53, (2013) 1 CURCC 234
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.2894 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
RSA No.2894 of 2011
Date of Decision: February 22, 2012
Gurjit Singh and another .......Appellants
Versus
Tarsem Singh and another .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.HS Saggu, Advocate for the appellants.
Mr.SC Chhabra, Advocate for the respondent/caveator.
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TEJINDER SINGH DHINDSA, J.
The suit filed by plaintiff-Tarsem Singh for specific performance of an agreement to sell dated 3.3.2008 was dismissed by the trial Court. In the civil appeal preferred by the plaintiff, the District Judge, Mansa, vide judgment dated 3.6.2011 has accepted the appeal, set aside the judgment and decree passed by the trial Court and has accordingly, decreed the suit of the plaintiff for specific performance of agreement to sell dated 3.3.2008. The defendant-appellants are in second appeal before this Court impugning the judgment dated 3.6.2011 passed by the first Appellate Court.
2. Briefly noticed, the plaintiff instituted a suit for specific performance against the defendants in terms of pleading that he had entered an agreement to sell dated 3.3.2008. It was pleaded that the defendants were owners in possession of 1/3rd share of land measuring 01 kanal 01 RSA No.2894 of 2011 2 marla situated within the revenue limits of village Jhunir. Accordingly, the agreement to sell dated 3.3.2008 in favour of the plaintiff was for the sale of their 1/3rd share i.e. 07 marla for a total sale-consideration of Rs.8,60,000/- and a sum of Rs.3 lacs had been paid towards earnest money. The last date for execution of the sale-deed was stipulated to be 30th April, 2008. The plaintiff pleaded that he was always ready and willing to perform his part of contract as the defendants had been threatening to alienate the suit land to some other person, he had filed a suit for permanent injunction in respect of the suit property. Defendant No.3-Gurcharan Singh had duly executed registered sale-deed regarding his share in the suit property in favour of the plaintiff on 5.5.2008 and as such, he had performed his part of the contract in pursuance to the agreement to sell dated 3.3.2008. The plaintiff further pleaded that on 30.4.2008, he had come present in the office of Sub registrar, Jhunir along with balance sale-consideration as also other expenses for the execution of the registered sale-deed but it were defendants No.1 and 2 who had not appeared. The plaintiff pleaded that the possession of the suit land had already been delivered to him, but since defendants No.1 and 2 were not performing their part of contract and were threatening to dispossess the plaintiff forcibly so as to alienate the suit land, hence, the suit.
3. Defendants No.1 and 2 contested the suit and admitted the factum of entering into the agreement to sell. It was denied that the possession of the suit land had been delivered to the plaintiff. The defendants stated that they had been ready and willing to perform their part of contract in terms of having been present before the competent authority RSA No.2894 of 2011 3 on 30.4.2008, but it was the plaintiff who had failed to perform his part of contract. Defendants No.1 and 2 further set up a plea that upon having an expectation to get the balance sale-consideration from the plaintiff, they had agreed to purchase a Combine from Sher Singh on 12.3.2008 by executing an agreement in regard thereto and had made a payment of Rs.2,14,000/- as earnest money. They stated that it had been agreed to between them and Sher Singh that the possession of the Combine would be handed over on 2.5.2008 upon receiving the balance sale-consideration amount of Rs.4,50,000/-. On account of non-performance of the part of contract by the plaintiff in relation to the agreement to sell dated 3.3.2008, the earnest money that had been paid by defendants No.1 and 2 to Sher Singh for the purchase of combine was forfeited. The defendants, as such, had been put to a loss on account of the conduct of the plaintiff and as such, the earnest money paid by the plaintiff also stood forfeited.
4. The parties to the suit went to trial on the following issues framed by the trial Court:
"1. Whether the plaintiff was always ready and willing and he is still ready and willing to perform his part of agreement to sell dated 3.3.2008?OPP
2. Whether plaintiff is entitled to get the relief of specific performance of agreement to sell dated 3.3.2008 or in the alternative for the recovery of Rs.4,00,000/- from defendants No.1 and 2?OPP
3. Whether plaintiff is entitled to get the relief of permanent injunction as prayed for?OPP
4. Whether suit of the plaintiff is not maintainable in the present form?OPD
5. Whether the plaintiff has no locus standi and causue of RSA No.2894 of 2011 4 action to file the present suit?OPD
6. Whether plaintiff is estopped from filing present suit by his own act and conduct?OPD
7. Relief.
5. The trial Court dismissed the suit of the plaintiff holding him (plaintiff) to be not ready and willing to perform his part of the contract on the stipulated date i.e. 30.4.2008. Aggrieved of the same, a civil appeal was preferred by the plaintiff-appellant and the same has been accepted in terms of impugned judgment dated 3.6.2011 passed by District Judge, Mansa whereby a suit for specific performance of the agreement to sell dated 3.3.2008 has been decreed and defendants No.1 and 2, namely, Gurjit Singh and Paramjit Singh have been held liable for execution of the sale-deed pertaining to the suit land in favour of the plaintiff on deposit of balance sale-consideration within a period of two months. The defendant-appellants are impugning the judgment dated 3.6.2011 passed by the District Judge, Mansa in the present second appeal before this Court.
6. I have heard Mr.HS Saggu, Advocate appearing for the appellants at length.
7. Learned counsel for the appellants would contend that the first Appellate Court has grossly erred in reversing the well-reasoned finding of the trial Court inasmuch as the plaintiff had been held to be not ready and willing to perform his part of the contract and as such, a decree for specific performance for the main relief in relation to an agreement to sell could not have been granted. Learned counsel would further contend that the plaintiff can only get relief as per the terms and conditions of the agreement. On such count also, the plaintiff was not entitled to the relief of specific RSA No.2894 of 2011 5 performance to get the sale-deed executed as regards the suit land.
8. Having given my thoughtful consideration to the submissions advanced by the learned counsel and having minutely perused the judgments of the trial Court as also the first Appellate Court, I find that the present second appeal must fail for the reasons recorded hereinafter.
9. The only basis on which the trial Court non-suited the plaintiff, was in terms of holding him not ready and willing to perform his part of the contract by recording a finding that the plaintiff had not been able to show his presence in the office of Sub Registrar on the last date of execution of the sale-deed i.e. 30.4.2008. It may be noticed that the execution of the agreement to sell dated 3.3.2008 is not in dispute between the parties. It is also not in dispute that an amount of Rs.3 lacs had been paid towards earnest money by the plaintiff against a total sale-consideration of Rs.8,60,000/-. In the light of such admitted position of facts, the question that requires consideration is readiness and willingness of the plaintiff seeking the relief of specific performance in relation to a contract.
10. Readiness and willingness in relation to performance of contract has been considered by the Hon'ble Apex Court in M/s J.P.Builders and another v. A.Ramadas Rao and another, 2011(1) RCR (Civil) 604 and it had been observed as follows:
"9) The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. 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.RSA No.2894 of 2011 6
10) In N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao & Ors.: 1995(2) RCR (Rent) 647; 1995(3) RRR 190: (1995) 5 SCC 115 at para 5, this Court held:
".....Section 16(c) of the Act envisages that plaintiff 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 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."
11. As such, the factum of readiness and willingness to perform his RSA No.2894 of 2011 7 part of the contract at the hands of the plaintiff was required to be adjudged with reference to the conduct of such plaintiff as also the attending circumstances.
12. Adverting to the facts of the present case wherein the agreement to sell is not in dispute, a sum of Rs.3 lacs out of a total sale- consideration of Rs.8,60,000/- already stood paid by the plaintiff to the defendants-appellants herein. A suit for permanent injunction restraining the defendants from alienating the suit land had been instituted by the plaintiff even prior to the last date for execution of the sale-deed. Not only this, the present suit had been instituted on 6.5.2008 i.e. within a week from the last date which had been stipulated for the execution of the sale-deed i.e. 30.4.2008. Even though, the first Appellate Court has held the plaintiff to be present in the office of Sub Registrar on 30.4.2008, inasmuch as the stamp papers had been duly purchased on such date in relation to the sale- deed that had been executed on 5.5.2008 by third defendant towards his performance of the contract, still, I find that merely on account of the fact that an affidavit had not been executed before the Tehsildar on the date to prove the presence would not be conclusive, so as to hold the plaintiff to be not ready and willing to perform his part of contract. Undoubtedly, the presence of a party claiming specific performance in relation to a contract on the stipulated date before the Office of the Sub Registrar/competent authority would certainly be a relevant factor. However, the same cannot be held to be conclusive as regards readiness and willingness is concerned. The conduct of a party has to be seen as a whole and the attending circumstances would also have to be taken into account. A substantial RSA No.2894 of 2011 8 amount out of the total sale-consideration already stood paid. An injunction suit had been filed to restrain the defendants from alienating the suit land even prior to the last date fixed for execution of the sale-deed. The suit claiming relief of specific performance had been instituted within one week from the last date i.e. 30.4.2008 for the execution of the sale-deed. All such facts when taken collectively would clearly show that the plaintiff had been ready and willing to perform his part of the contract in relation to the agreement to sell, dated 3.3.2008.
13. For the reasons recorded above, I find no error in the impugned judgment dated 3.6.2011 passed by the first Appellate Court decreeing the suit of the plaintiff for specific performance of the agreement to sell dated 3.3.2008, Exhibit P1, upon payment of balance consideration amount within a period of two months. I find no perversity in the findings recorded by the first Appellate Court.
14. The present appeal is, accordingly, dismissed as it does not raise any question of law, much less a substantial question of law.
15. Appeal dismissed.
( TEJINDER SINGH DHINDSA )
FEBRUARY 22, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No