Punjab-Haryana High Court
Amar Singh vs Jaswant Kaur on 11 August, 2006
Equivalent citations: (2007)146PLR572
JUDGMENT S.N. Aggarwal, J.
1. Amar Singh appellant was the owner of land measuring 26 bighas 3 biswas. He had executed an agreement of sale dated 12.12.1987 in favour of Jaswant Kaur respondent. The land was to be sold at the rate of Rs. 12,000/- per bigha and the total amount of sale consideration came to be Rs. 2,95,300/-, Rs. 20,000/- were paid as earnest money. The sale deed was to be executed on 1.6.1988. These facts are undisputed.
2. However, the respondent filed civil suit on 15.6.1990 for joint possession by way of specific performance of the agreement of sale dated 12.12.1987. It was pleaded by her that she was ready and willing to perform her part of the agreement and was still ready and willing to do so while the appellant has committed breach of agreement.
3. The appellant admitted that the sale-deed was to be executed on 1.6.1988. It was pleaded that he was ready and willing to perform his part of the agreement but the respondent had failed to do so. She had served notice through her counsel Shri Manmohan Sharma, Advocate on the appellant and it was replied by him (appellant) through his counsel on 24.11.1988. He even asked the respondent to get the sale-deed executed in her favour on 5.12.1988 but she failed to appear before the Sub-Registrar on that day while the appellant had reached the office of Sub-Registrar, Amloh for executing the sale deed in favour of the respondent. In token of his presence, he got his affidavit attested from the Sub-Registrar, Amloh. The appellant again served a notice through his counsel on the respondent on 15.12.1988 requesting the respondent to appear in the office of Sub-Registrar, Amloh on 16.11.1989 as 15.1.1989 was Sunday and got his affidavit attested in token of his presence in the office of Sub-Registrar, Amloh. Hence, it was submitted that the respondent was not ready and willing to perform her part of the agreement and prayed for the dismissal of the suit.
4. Issues were framed.
5. The learned trial Court reached the conclusion that the respondent was ready and willing to perform her part of the agreement while the appellant has committed its breach. Accordingly, the suit of the respondent for joint possession by way of specific performance of agreement of sale dated 12.12.1987 was decreed by the learned trial Court Vide judgment and decree dated 9.12.1995.
6. The appellant filed an appeal. The learned Lower Appellate Court also upheld the findings of fact recorded by the learned by the learned trial Court and dismissed the appeal vide judgment and decree date 10.6.2000.
Hence, the present appeal.
The following substantial question of law arise:
1. Whether documentary evidence can be ignored and oral evidence can be believed for proving readiness and willingness of the agreement holder?
2. Whether the conduct of the agreement holder is material for determining his/her readiness and willingness to perform his/her part of the agreement?
7. The settled law is that the person who seeks specific performance of the agreement of sale has to plead and prove that he/she was always ready and willing to perform his part of the agreement from the date specified in the agreement till the filing of the suit and was still ready and willing to do so from the date of the filing of the suit till the date of decree. Law has been made clearly the Hon'ble Supreme Court in a number of judgments.
8. It was held by the Hon'ble Supreme Court in the judgment reported as N.P. Thrugnanam (Dead) by LRs. v. Dr. R. Jagan Mohan Rao and Ors. as under:
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 filling of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available.
In other judgments reported as Manjunath Anandappa urf Shivappa Hansai v. Tammanasa and Pukhraj D. Jain v. Gopalkrishna , the same view of law was taken by the Hon'ble Supreme Court.
9. The agreement of sale dated 12.12.1987 was not in dispute. The payment of earnest money by the respondent to the appellant was not disputed and it was also not disputed that the sale-deed was to be executed on 1.6.1988. Jaswant Kaur respondent was to prove that she was ready and willing to perform her part of the agreement. In support of her case, she examined her husband and attorney Harbans Singh as PW-1 who proved his power of attorney Exhibit P-1. She also examined Mal Singh as PW-2 who is the attesting witness of the agreement of sale Exhibit P-2. One Chajja Singh was also examined as PW-3.
10. On the other hand, in support of his version, the appellant examined Shri Ramesh Garg, Tehsildar Rajpura (who was posted as Sub-Registrar, Amloh at the relevant time) as DW-1, Som Nath, deed writer, Amloh as DW-2, Sh. S.C. Lutwa, Advocate as DW-3 and the appellant himself appeared as DW-4. He had also examined Dalbir Singh as DW-5 and Vinod Kumar as DW-6.
11. The respondent who is the agreement holder and who filed the suit for specific performance had not appeared before the Sub-Registrar on 1.6.1988 which was the date for getting the sale executed in her favour by the appellant. She has tried to explain the reasons for her non-appearance before the Sub-Registrar but the oral evidence is not reliable piece of evidence nor it is sufficient. If there was any bottle-neck for getting the sale-deed executed on 1.6.1988 on which date she did not appear before the Sub-Registrar, she could have served a notice on the appellant about those bottle-necks and the appellant should have been requested to remove those bottle-necks which were proving stumbling-block in the execution of the sale-deed in her favour but even that was not done.
12. It was submitted by the learned Counsel for the respondent that the respondent had learnt later on that the land was under mortgage and, therefore, till the mortgage was redeemed, execution of sale-deed was not possible. It was also submitted that the respondent had advanced money to the appellant for getting the land redeemed. Reference was made to the statements of the witnesses to that effect.
13. This submission has been considered. It has no merits. If the land was under mortgage or if the mortgage was the stumbling -block in the execution of the sale-deed, it was for the respondent to serve a notice on the appellant to get the land redeemed and thereafter to get the sale-deed executed in her favour. There is no documentary evidence in support of this plea.
14. Similarly, the advancement of Rs. 40,000/- by Harbans Singh (husband of the respondent) to the appellant on 9.5.1988 is not disputed but this amount was advanced by Harbans Singh not as attorney of the respondent and not in furtherance of agreement of sale dated 12.12.1987 but the amount was advanced by Harbans Singh to the appellant against a pronote. Therefore, the advancement of Rs. 40,000/- by Harbans Singh to the appellant cannot be read as advancement of earnest money of the agreement of sale dated 12.12.1987. Similarly, Harbans Singh had advanced a sum of Rs. 28000/- to the appellant on 4.6.1988 but that amount was again advanced against promote. For the same reasons discussed above, this amount also cannot be taken towards the advancement of earnest money.
15. Moreover, it was submitted by the learned Counsel for the appellant that separate suits have been filed under these promotes by Harbans Singh against the appellant. Therefore, these two transactions were independent transactions and have noting to do with the agreement of sale dated 12.12.1987.
16. It is, therefore, revealed that no plausible explanation has been given by the respondent as to why she could not present herself before the Sub Registrar on 1.6.1988 for getting the sale-deed executed in pursuance of agreement of sale dated 12.12.1987. Fake attempt made by the respondent after 1.6.1988 as proved by her documentary evidence is that she served a legal notice dated 16.11.1988 through her counsel Shri Manmohan Sharma, Advocate on the appellant. The said notice was proved as Exhibit P-2. Its receipt was admitted by the appellant who also gave reply to this notice through his counsel on 24.11.1988.
17. It is very surprising that through the notice dated 16.11.1988, the respondent required the appellant to appear before the Sub-Registrar on 1.6.1988 for the purposes of executing the sale deed in her favour. At the time of arguments, it was submitted by the learned Counsel for the respondent that there appears to be a mistake in the date of the notice. Actually the notice was served on 16.1.1988 and it was wrongly typed as 16.11.1988.
18. This submission does not appear to be correct because this notice was replied by the appellant on 24.11.1988 and the said reply has been exhibited as DW-3/A. If this notice dated 16.11.1988 had remained unreplied, it could have been presumed that there was an error in the date of this notice as submitted by the learned Counsel for the respondent but since this notice was specifically replied on 24.11.1988 and it was specifically mentioned in the reply that it was in response to the notice dated 16.11.1988 sent by the respondent, therefore, by no imagination it can be believed that there was an error in the date of the notice dated 16.11.1988.
19. The notice dated 16.11.1988, Exhibit P-2 therefore, proved that by notice dated 16.11.1988, the respondent was requiring the appellant to appear before the Sub-Registrar on 1.6.1988. This appears to be a clever move on the part of the respondent to show that she was ready and willing to perform her part of the agreement while it proves to the contrary. This conduct of the respondent proves that she was not ready and willing to perform her part of the agreement but she was posing to be. It was held in the judgment reported as Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs and Anr. (2005-3)141 Punjab Law Reporter 341 as under:
It is now well-settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on record.
It may also be seen that in the reply dated 24.11.1988 (Exhibit DW-3/A in the learned trial Court file), it was specifically stated by the appellant that he was ready and willing to execute the sale-deed in favour of the respondent. To prove his bona fide, the appellant had even suggested in the said reply that the respondent should appear in the office of the Sub-Registrar, Amloh on 5.12.1988 so that he might execute the sale-deed in her favour. However, surprisingly this notice was not replied by the respondent. Not only this, the appellant even appeared before the Sub-Registrar on 5.12.1988 and got his presence marked by swearing an affidavit Exhibit DW-l/A. In spite of receipt of notice dated 24.11.1988, the respondent failed to appear before the Sub-Registrar on 5.12.1988.
20. The bona fides of the appellant are further proved by the fact that even after the respondent had failed to appear before the Sub-Registrar on 5.12.1988, he served another legal notice dated 15.12.1988 on the respondent requiring her to appear before the Sub-Registrar on 15.1.1989 so that he may execute the sale-deed in her favour in pursuance of agreement of sale dated 12.12.1987. The said notice was also proved on the trial Court file. Again the appellant appeared before the Sub-Registrar on 15.1.1989 and got attested his affidavit from the Sub- Registrar as a token of his presence in his office on that day. It has also been proved as also been proved as Exhibit DW-l/B. But the respondent again failed to appear in the office of the Sub-Registrar on 15.1.1989 nor she replied to the notice dated 15.12.1988.
21. These notices served by the appellant on the respondent and these affidavits sworn by the appellant by appearing before the Sub-Registrar, Amloh on the stipulated dates clearly revealed that he was always ready and willing to perform his part of the agreement but the respondent failed to do so. The Courts below have mis-read the evidence. The oral evidence led by the respondent to prove her readiness and willingness to perform her part of the agreement has been believed whereas the documentary evidence led by the appellant to prove his readiness and willingness to perform his part of the agreement has been rejected on flimsy grounds.
22. The documentary evidence led by the appellant clearly revealed that it was the respondent who has committed breach of the agreement. She had failed to appear before the Sub-Registrar not only on 1.6.1988 but also on 5.12.1988 and 15.1.1989 which were the dates suggested by the appellant for the execution of Sale-deed by him in favour of the respondent. If it was not possible for the respondent to appear on those dates before the Sub-Registrar, she could have served notice on the appellant suggesting some alternative dates but no such evidence has been led by her. The date of 5.12.1988 was suggested by the appellant in response to the notice served by the respondent on the appellant. The respondent not only failed to give response to the reply dated 24.11.1988 sent by the appellant but she even failed to appear before the Sub-Registrar on that day. The conduct of the respondent clearly revealed that she was herself not ready and willing to get the sale-deed executed in her favour. This part of evidence has also been totally not considered by the Courts below. The judgments of the Courts below, therefore, are totally against law and cannot be sustained.
23. Since the respondent has failed to prove her readiness and willingness to perform her part of the agreement, she was not entitled to the relief of joint possession by way of specific performance or even for the refund of the earnest money as the earnest money stood forfeited and the agreement stood cancelled on the failure of the respondent to prove her readiness and willingness to perform her part of the agreement dated 12.12.1987. Both the substantial questions of law are answered in favour of the appellant and against the respondent.
Accordingly, this appeal is accepted and the judgments of the Courts below are set aside.