Punjab-Haryana High Court
Anil Kumar And Ors vs Sukhbir Singh And Anr on 24 September, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
RSA-1357 of 2014 -1-
In the High Court of Punjab and Haryana at Chandigarh
RSA-1357 of 2014 (O&M)
Date of Decision: 24.9.2014
Anil Kumar and others
---Appellants
Versus
Sukhbir Singh another
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr. Ashish Aggarwal, Senior Advocate with
Mr. Kulwant Singh, Advocate
for the appellants
***
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
REKHA MITTAL, J.
The present regular second appeal has been directed against the judgment and decree dated 15.1.2014 passed by the Additional District Judge, Karnal accepting appeal of Sukhbir Singh (respondent No. 1- plaintiff), modified the judgment and decree passed by the trial court and allowed specific performance of the agreement to sell dated 27.6.2001.
Sukhbir Singh, plaintiff-respondent No. 1 filed the suit for RSA-1357 of 2014 -2- possession by specific performance of the agreement to sell dated 27.6.2001 in regard to land measuring 16 kanals, described in detail in the plaint with the allegations that Tarlochan Singh, defendant No. 1 agreed to sell the suit land along with all rights appurtenant thereto for sale consideration of Rs.4,40,000/- and received a sum of Rs.1,40,000/- towards earnest money. The sale deed was agreed to be executed and registered on or before 27.6.2002 on payment of balance sale consideration. The plaintiff always remained ready and willing to perform his part of the agreement but defendant No. 1 remained postponing the matter on one pretext or the other. On 6.6.2002, another amount of Rs. 45,000/- was paid to defendant No. 1 on his request. On 27.6.2002, the plaintiff went to the office of Sub Registrar, Indri for getting the sale deed executed and registered on payment of balance sale consideration but defendant No. 1 did not turn up to perform his part of the contract. During pendency of the suit, defendant No. 1 illegally sold the suit land to defendant No. 2 to 7 vide sale deed bearing No. 2742/1 dated 17.1.2005. The sale deed executed by defendant No. 1 in favour of defendants No. 2 to 7 is illegal, null and void and not binding upon rights of the plaintiff.
Defendant No. 1 filed the written statement and, in turn, challenged maintainability of the suit; locus standi of the plaintiff to file the suit; there being no cause of action; plaintiff being estopped by his own act and conduct and the suit being barred by limitation. He has altogether denied execution of agreement in favour of the plaintiff and his liability to execute the sale deed in his favour with the averments that the agreement is the result of fraud and misrepresentation. The plaintiff is the brother of RSA-1357 of 2014 -3- Harpal, the commission agent running the business under the name and style of M/s Harpal Raj Kumar Commission agent at New Anaj Mandi, Ladwa. Defendant No. 1 was the customer of said commission agent for the last many years and now he has no dealings with the said agent. The agreement to sell is manipulated by the commission agent in the name of the defendant. The answering defendant took a sum of Rs.40,000/- for his domestic need from the commission agent and there was also dispute of accounts between the plaintiff and the commission agent who got thumb impressions/signatures of the defendant on blank stamp paper and register of the petition writer at Ladwa on the pretext of security and later converted into agreement to sell. The defendant had promised to return documents to the plaintiff as and when the loan amount is repaid but despite repeated requests, the documents were not returned to defendant No. 1.
Defendants No. 2 to 7, the subsequent purchasers filed their joint written statement alleging themselves to be bona fide purchasers of the suit land. Defendant No. 1 entered into an agreement for sale of land measuring 48 kanals in favour of Amar Singh, Rai Singh sons of Soran Ram, Anil Kumar son of Jaswant Singh, Vijay Pal son of Raj Kumar and Parveen Kumar son of Ajmer Singh. An amount of Rs.8,00,000/- was paid to defendant No. 1 as advance vide agreement dated 21.6.2004. It was agreed that Amar Singh etc. may get the sale deed executed in their favour or in favour of any other person of their choice. The said agreement was scribed by Mai Chand, Deed Writer and witnessed by Sumer Chand and Rattan Singh, Numberdar. Tarlochan Singh executed the sale deed in respect of 48 kanals in favour of answering defendants for a sale RSA-1357 of 2014 -4- consideration of Rs. 17,52,000/- and put the defendants in actual and physical possession of the suit land. Enquiries were made by Amar Singh etc. regarding title of suit land and they did not come across any document/evidence which could create doubt in their mind with regard to the agreement.
The controversy between the parties led to framing of following issues by the learned trial court:-
1. Whether the plaintiff is entitled to a decree for specific performance of the contract and for permanent injunction as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable? OPD
3. Whether the plaintiff has no cause of action as alleged?
OPD
4. Whether the plaintiff is stopped by his own act and conduct from filing the present suit? OPD
5. Whether the plaintiff has not come to the court with clean hands and has suppressed the true and material facts? OPD
6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD
7. Relief.
Sukhbir Singh plaintiff examined himself and Raj Kumar, one of the partners of the commission agent business as PW2.
To rebut evidence of the plaintiff, Tarlochan Singh defendant No. 1 appeared as his own witness and defendants No. 2 to 7 examined Mai RSA-1357 of 2014 -5- Chand DW2, Amar Singh DW3, Anil Kumar DW4, Rattan Singh DW5, V.K.Sayal DW6, Angrej Singh DW7, Ashok Kumar DW8 and Ramesh Kumar DW9.
The learned trial court, on appraisal of evidence adduced on record accepted plea of the plaintiff-respondent that defendant No. 1 executed agreement to sell Ex. P6 for sale of suit land, received Rs. 1,40,000/- towards earnest money but non-suited his plea that he always remained ready and willing to perform his part of the agreement and as a consequence, the suit of the plaintiff was decreed for alternative relief of recovery of Rs.2,80,000/- (double of earnest money) along with interest. On the other hand, the trial court held defendants No. 2 to 7 (subsequent vendees) to be bona fide purchasers by holding that the plaintiff was required to establish that defendants No. 2 to 7 had knowledge about execution of the agreement to sell in his favour and once the plaintiff has failed to lead any evidence qua any entry in revenue record in regard to agreement dated 27.6.2001, it cannot be concluded that defendants No. 2 to 7 had knowledge about the agreement to sell in favour of the plaintiff.
The plaintiff carried the matter in appeal to express his grievance against declining his prayer for specific performance of the agreement to sell. The appeal filed by the plaintiff-respondent was allowed by the first appellate court and the findings of the learned trial court in regard to subsequent vendees being bona fide purchasers were set aside with the observations that defendants No. 2 to 7 having purchased the suit property during pendency of the suit, sale in their favour is hit by the provisions of lis pendens and, therefore, the question of their being bona RSA-1357 of 2014 -6- fide purchasers and entitled to protection under the Transfer of Property Act, 1882 does not arise. For this purpose, the court relied upon the judgment of the Hon'ble Supreme Court of India in Arjan Singh vs. Punit Ahluwalia and others, 2008(3)RCR(Civil) 294. It also relied upon the judgments passed by this Court in Prem Chand vs. Harayan State Industrial Development Corporation Limited, 2006(2)RCR(Civil) 573 and Sukhdev Singh vs. Mohan Singh, 2011(4)CCC 404(P&H).
Feeling aggrieved by the verdict of the first appellate court, the present regular second appeal has been preferred by Anil Kumar and others(subsequent vendees).
Counsel for the appellants contends that the learned trial court rightly dismissed claim of the plaintiff for specific performance of the agreement to sell as he failed to prove one of the essential ingredients of his being always ready and willing to perform his part of the agreement. Counsel has submitted that as per plea of the plaintiff, the agreement to sell was executed on 27.6.2001 and the sale deed was to be executed after one year i.e. 27.6.2002. On expiry of stipulated date mentioned in the agreement to sell, the suit for specific performance of the agreement was filed in November 2004, approximately two years and six months thereafter. It is argued with vehemence that there is no cogent and satisfactory explanation submitted by the plaintiff that if he was ready and willing to perform his part of the agreement, why did he wait for more than two years in approaching the court seeking specific performance of the agreement. Counsel has further submitted that as value of the property had increased during the intervening period, the plaintiff filed the suit for RSA-1357 of 2014 -7- specific performance but his silence for more than two years negates his plea of readiness and willingness to perform his part of the agreement. It is further argued that plea to challenge entitlement of the plaintiff to seek specific performance of the agreement on the ground of his being not ready and willing to perform his part of the agreement is available to the subsequent vendees as well. For this purpose, he has relied upon judgment of the Apex Court in Ram Awadh (Dead) by Lrs. Vs. Acchaiber Dubey, 2002(RCR(Civil)2(SC).
I have heard counsel for the appellants and perused the records.
The sole submission made by counsel for the appellants is that as the plaintiff-respondent was not ready and willing to perform his part of the agreement, therefore, he cannot be held entitled to specific performance of the agreement to sell. The question which arises for consideration is "Whether the subsequent vendee(s) can challenge the agreement propounded by the plaintiff except on the ground of collusion between the plaintiff and the real owner(previous owner) and the subsequent vendee can raise an issue with regard to the plaintiff's being not ready and willing to perform his part of the agreement?"
The learned trial court accepted plea of the plaintiff that defendant No. 1 executed agreement to sell in his favour but non suited his claim for specific performance by holding that he could not substantiate his plea of being always ready and willing to perform his part of the agreement and the subsequent vendees were held to be bona fide purchasers of the suit land. Neither defendant No. 1 nor the subsequent vendees challenged the RSA-1357 of 2014 -8- findings of the trial court in regard to defendant No. 1 having entered into agreement to sell the suit land and, therefore, the findings of the trial court on this aspect of the matter have attained finality. This apart, the subsequent vendee(s) is nobody to challenge execution of the agreement by the owner in favour of the plaintiff. The appellants in the present case did not challenge the agreement propounded by the plaintiff but sought to assail the plaintiff being ready and willing to perform his part of the agreement. In Ram Awadh's case (supra), it was laid down in para 05, quoted hereinbelow:-
"The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seek. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jograj's case is erroneous."
The judgment in Ram Awadh's case(supra) came up for consideration before the Hon'ble Supreme Court of India in M.M.S.Investments, Madurai and others vs. V.V.Veerappan and others 2007(2)R.C.R.(Civil)816. The Hon'ble Supreme Court of India RSA-1357 of 2014 -9- distinguished the ratio laid down in Ram Awadh's case (supra) and held in para Nos. 6 and 7, quoted for facility of reference:-
"6.Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case (supra) relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing really of no consequence. In Ram Awadh's case (supra) the question of the effect of a completed sale was not there.
Therefore, that decision cannot have any
application so far as the present case is
concerned. Once there is a conveyance the
concept would be different and the primary relief could no only cancellation.
7. Learned counsel for the appellants submitted that since the purchasers step into the shoes of the vendor, the question of readiness and willingness can be pressed into service. This plea is clearly without substance because the purchasers had to prove that they are bona fide purchasers for value without notice. The readiness and willingness RSA-1357 of 2014 -10- aspect will not give any relief to them. That being the position, the appeal is sans merit and is dismissed. There will be no order as to costs."
Keeping in view the enunciation of law laid down in M.M.S. Investments, Madurai and others' case (supra), it becomes established position in law that after conveyance, the plea to challenge readiness and willing of the plaintiff to perform his part of the agreement is not available to the subsequent vendees and thereafter the only question to be adjudicated is whether the purchaser was bona fide purchaser for value without notice.
Counsel has not made any submission with regard to the appellants being bona fide purchasers for value without notice of the agreement. This apart, the sale deed in favour of the appellants was executed during pendency of the suit and therefore, hit by provisions of lis pendens. In this context, reference can be made to judgment of the Hon'ble Supreme Court of India in Guruswamy Nadar vs. P. Lakshmi Ammal (D) through Lrs. and others 2008(3)RCR(Civil)173.
In view of what has been discussed hereinabove, I find no merit in the contentions of the appellants when otherwise no substantial question of law arises for consideration. However, before parting with this order, it is pertinent to mention that the first appellate court has set aside sale deed No. 2742/1 dated 17.1.2005 executed by defendant No. 1 in favour of the appellants which pertains to land measuring 48 kanals including land measuring 16 kanals, subject matter of the suit. As there is no dispute between the parties with regard to remaining land measuring 32 kanals out of 48 kanals, the observations made by the first appellate court RSA-1357 of 2014 -11- would not cause any prejudice to rights of the appellants with regard to land measuring 32 kanals, which is not subject matter of present litigation.
Dismissed in limine.
(Rekha Mittal) Judge 24.9.2014 paramjit