Punjab-Haryana High Court
Gurbachan Singh And Anr. vs Gurmit Singh on 23 July, 2003
Equivalent citations: (2004)136PLR11
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The instant Regular First Appeal has been filed by Gurbachan Singh defendant No. 1 (hereinafter referred to as 'the vendor') and Ajaib Singh defendant No. 2 (hereinafter referred to as 'the subsequent vendee') against the judgment and decree dated 13.11.1979 passed by the Court of Sub Judge 1st Class, Gurdaspur, vide which suit for possession by way of specific performance filed by Gurmit Singh plaintiff (hereinafter referred to as 'the vendee') was decreed.
2. The brief facts of the case are that vide an agreement dated 13.12.1977 (Ex.PI), the vendor agreed to sell the land measuring 29 Kanals 1 Maria to vendee for a consideration of Rs.45,000/-. At the time of execution of the agreement, an amount of Rs. 10,000/- was paid by the vendee to the vendor as earnest money and the remaining amount of Rs.35,000/- was agreed to be paid by the vendee to, the vendor before the Sub Registrar at the time of execution of the sale deed. The sale deed was to be executed and got registered by the vendor on or before 15.11.1978. At the time of execution of the agreement, the land in question was under mortgage with the Primary Co-operative Land Mortgage Bank Limited, Gurdaspur (hereinafter referred to as 'the Land Mortgage Bank') and as per the agreement of sale the vendor was required to get a clearance certificate from the Land Mortgage Bank after clearing the loan amount of Rs.30,000/-. According to the vendee, the vendor did not get the requisite clearance certificate from the Land Mortgage Bank after making payment of the loan amount. However, it was alleged that the vendee was always ready and willing and was still ready to perform his part of the agreement and was ready to make the payment of the balance amount to the vendor at the time of execution and registration of the sale deed. It was further alleged that on 15.11.1978, the vendee had appeared in the office of sub Registrar, Gurdaspur with the remaining sale consideration for getting the sale deed executed and registered in his favour. He also filed an application (Ex.P2) before the Sub Registrar about his willingness to perform his part of the agreement, but the vendor did not turn up on the said date. Immediately, he got issued a telegram to the vendor calling upon him to execute the sale deed in terms of the agreement in question but the vendor refused to accept the aforesaid telegram. Thereafter, on 16.11.1978, the vendee served a legal notice (Ex.P5) on the vendor calling upon him to perform his part of the agreement, but instead of honouring the agreement in question, the vendor in utter violation of the terms of the same executed the sale deeds dated 23.11.1978 and 22.12.1978 (Ex.Dl and Ex.D2) in favour of the subsequent vendee. Therefore, the suit for possession by way of specific performance was filed by the vendee against the vendor as well as the subsequent vendee on 1.1.1979.
3. Both the vendor as well as the subsequent vendee contested the suit by filing separate written statements. The vendor denied the execution of agreement of sale dated 13,12.1977 (Ex.PI) and pleaded that the vendee did not pay to him the alleged earnest amount of Rs. 10,000/-. However, he stated that as a matter of fact the brother of the vendee had paid only Rs.2,000/- to him even prior to the alleged execution of the agreement of sale (Ex.PI) and out of the remaining amount of Rs.43,000/- the vendee was to pay the amount due to the Land Mortgage Bank to get the clearance certificate before the execution of the sale deed, It was further alleged that it was the condition precedent that the vendee shall make payment to the Land Mortgage Bank on behalf of the vendor before the execution of the sale deed, as for registration of the sale deed, clearance certificate was to be obtained from the Land Mortgage Bank, As the vendee failed to clear the loan amount of the Land Mortgage Bank, therefore, he failed to perform his part of the agreement. Thus, he was not entitled to the specific performance of the alleged agreement of sale (Ex.PI). As the vendor was under pressure to repay the loan amount to the Land Mortgage Bank and since the vendee did not make the payment to clear the said loan, the vendor was compelled to execute the sale deed in favour of the subsequent vendee.
4. In his written statement, the subsequent vendee took the stand that he was a bonafide purchaser for value without notice of the agreement (Ex.Pl) in question. He further took the stand that he was not aware of the agreement of sale deed 13.12.1977 (Ex.Pl) executed by the vendor in favour of the vendee,
5. On the pleadings of the parties, the learned trial court framed the following issues:
1. Whether Gurbachan Singh defendant executed the agreement of sale deed 13.12.1977 in favour of the plaintiff and received Rs. 10,000/- as advance from the plaintiff? OPP.
2. Whether the plaintiff has always been ready and willing to perform his part of the contract? OPP,
3. Whether Ajaib Singh defendant is bonafide purchaser for value and without notice of the agreement of sale, if so, its effect? OPD-2
4. Whether in the alternative, the plaintiff is entitled to recover Rs.20,000/- from defendant No. l? OPP
5. Relief.
In support of their case, both the parties led their respective evidence on the aforesaid issue?
6. After considering the evidence led by the parties, the learned trial court decreed the suit for specific performance and both the vendor as well as the subsequent vendee were ordered to execute the sale deed in favour of the vendee on payment of remaining amount of Rs. 35,000/- by him to the vendor, within the stipulated time, failing which the vendee was entitled to get the sale deed executed through Court.
7. On issue No. l, the execution of the agreement of sale deed 13.12.1977(Ex.PI) and payment of earnest money of Rs.10,000/- were held to be proved. On issue No. 2, it was held that the vendee was always ready and willing to perform his part of contract, On issue No. 3, it was held that the subsequent vendee was not bonafide purchaser as he was having the knowledge of the agreement to sale deed 13.12.1977 (Ex.PI).
8. Against the aforesaid judgment and decree, the vendor and the subsequent vendee filed the instant appeal.
9. Sh. M.L. Sarin, the learned Senior counsel for the appellants did not dispute before me the finding recorded by the learned trial Court on the issue of execution of the agreement of sale deed 13.12,1977 (Ex.PI). Even otherwise, the execution of the aforesaid agreement has been duly proved by the vendee by examining Darshan Singh. deed writer PW4.), Butta Singh (PW.5) and Sat Pal (PW6), who are the scribe and the attesting witnesses and the vendee himself (PW1). All these witnesses and the vendee himself (PW1) have also proved on record the payment of Rs.10,000/- as earnest money. I, therefore, affirm the finding of the learned trial court regarding execution of the agreement of sale (Ex.Pl) and payment of Rs.10,000/- as earnest money by the vendee to the vendor.
10. On issue No. l, learned Senior counsel for the appellants submitted that the vendee was not ready and willing to perform his part of the agreement. Actually before the execution of the sale deed and its registration, the vendee was required to clear the loan amount of the Land Mortgage Bank and thereafter, he was required to obtain the clearance certificate. Since he was not in a capacity to pay the loan amount of Rs.30,000/- to the Land Mortgage Bank and did not obtain the clearance certificate after making the said payment, therefore, he has violated the terms of the agreement (Ex.PI) and cannot be said to be ready and willing to perform his part of the agreement, and thus his suit for specific performance could not have been decreed by the learned trial Court. While referring to the judgments of the Hon'ble Supreme Court in His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar, A.I.R. 1996 S.C. 2095, P. Purshottam Reddy v. Pratap Steels Ltd, AIR 2002 S.C. 771, learned Senior counsel for the appellants submitted that when time was the essence of the contract, it was incumbent upon the vendee to clear the loan amount of the Land Mortgage Bank before 15.11.1978, the date fixed for execution and registration of the sale deed, as the vendor had entered into the agreement of sale only with the object to clear his loan amount When the vendee did not deposit the aforesaid loan amount, before the due date of execution and registration of the sale deed, it cannot be held that the vendee was ready and willing to perform his part of the agreement. Learned Senior counsel further argued that the agreement of sale (Ex.Pl) was a contingent agreement and since the vendee did not obtain the clearance certificate after making payment of the loan amount of the vendor, the suit for specific performance, filed by the vendee could not have been decreed by the learned trial court.
11. On the other hand, learned counsel for the vendee submitted that the finding of readiness and willingness recorded by the learned trial court in favour of the vendee is perfectly legal and valid and is based on the documentary evidence available on the record and the same is liable to be affirmed.
12. After hearing the arguments of learned counsel for both the parties and perusing the records of the case, I am of the view that the finding recorded by the learned trial Court on issue No. 2 is to be 'affirmed. The contention of learned Senior Counsel for the appellants that the vendee was required to get the clearance certificate from he Land Mortgage Bank after making payment of the loan amount of the vendor is not tenable as the same is contrary to the written agreement of sale (Ex.Pl) executed between the parties. As per this agreement, the vendee was required to pay the remaining sale consideration of Rs.35,000/- to the vendor at the time of execution and registration of the sale deed, which was to be executed by the vendor on or before 15.11.1978. There is no clause in the agreement, according to which the vendee was required to make the payment of balance sale consideration either to the vendor or to the Land Mortgage Bank before execution and registration of the sale deed. Secondly, as per the agreement of sale (Ex.Pl) the vendor was required to obtain the clearance certificate from the Land Mortgage Bank after making payment of the loan amount. It has been clearly agreed between the vendor and the vendee that the vendor shall make payment of the loan amount to the Land Mortgage Bank and shall obtain the requisite clearance certificate before the date fixed for execution and registration of the sale deed. Therefore, I do not find any force in the contention of learned Senior counsel for the appellants that it was the obligation of the vendee to obtain in the clearance certificate from the Land Mortgage Bank after clearing the loan amount of the vendor. In support of the aforesaid stand, the statement made by the vendor, while appearing as DW6, cannot be accepted in view of the provisions contained in Section 92 of the Indian Evidence Act, as no oral evidence by any of the parties to the agreement is permissible to contradict, vary, add to or subtract from the terms of the written agreement. Therefore, the contention of learned Senior counsel for the appellants that the time was the essence of the contract and the agreement in question was a contingent agreement cannot be accepted at all. The judgments cited by him in this regard, therefore, are not relevant for the adjudication of the instant controversy. As far as the readiness and willingness on the part of the vendee is concerned, the learned trial court recorded its finding on the basis of oral as well as documentary evidence available on the record. The vendee has proved on record the application (Ex.P2) submitted by him before the Sub Registrar, Gurdaspur, on 15.11.1978, in which he showed his willingness to get the sale deed executed and registered in terms of the agreement in question. He also proved on record the telegram given by him to the vendor on 15.11.1978. He further proved notice (Ex.P5) given by him to the vendor on 16.11.1978 calling upon him to perform his part of the agreement. Besides, the aforesaid documentary evidence, the vendee (PW.l) has stated in his statement that he was ready and willing to perform his part of the contract and he was having the requisite amount with him for getting the sale deed executed and registered in his favour at the relevant time. The version of the vendee about his readiness and willingness to perform his part of the agreement cannot be disbelieved particularly when the vendor even denied the execution of the agreement (Ex.Pl) and receipt of the earnest money, which had been duly proved by the vendee. In view of the said stand taken by the vendor, it cannot be accepted that the vendee was not ready and willing to perform his part of the agreement, particularly when the vendor did not allege that he went to the office of Sub Registrar on the date fixed for execution and registration of the sale deed. Thus, the finding recorded by the learned trial Court on issue No. 2 is affirmed.
13. Learned Senior counsel for the appellants then argued that the subsequent vendee was a bona fide purchaser for consideration without notice of the agreement dated 13,12.1977 (Ex.Pl) and the finding recorded by the learned trial court on issue No. 3 is not in accordance with the evidence available on the record. In support of his contention, he has relied upon a decision of the Hon'ble Apex Court in Lourdu Mari David v. Louis Chinnaya Aragiaswamy and Ors., J.T. 1996(7) S.C. 449, and Jagan Nath v. Jagdish Rai, (1998-2)119 P.L.R. 533 (S.C.). Learned Senior counsel for the appellants submitted that the vendee did not establish on record that the subsequent vendee had purchased the land in question after having notice of the agreement in question in favour of the vendee. In these circumstances, the learned trial court has committed grave illegality while granting relief of specific performance to the vendee against the subsequent vendee.
14. !n view of the evidence available on the record, the aforesaid contention raised by learned Senior Counsel for the appellants is not tenable. Undisputedly, the vendor executed two sale deeds regarding the land in question in favour of the subsequent vendee i.e. dated 23.11.1978 (Ex.Dl) and 22.12.1978 (Ex.D2). The execution of these sale deeds has been proved on record and has also not been disputed. The aforesaid sale deeds were executed for a consideration of Rs. 58,000/-, which was admittedly more than the sale consideration mentioned in the agreement (Ex.P1). It has also come on record that the aforesaid two sale deeds were executed by the vendor in favour of the subsequent vendee in compliance of two agreements of sale 7.7.1978 (Ex.D3 and Ex.D4). One of these agreements was executed between the vendor and the subsequent vendee and the other was between the vendor and Harnam Singh, father of the subsequent vendee, but the sale deeds (Ex.Dl and Ex.D2) were executed only in favour of the subsequent vendee (Ajaib Singh). It has also been admitted by the subsequent vendee that he and his father reside jointly and he used to consult his father when he takes any decision regarding purchase of the property. The vendee has proved on record the notice dated 16.11.1978 (Ex.P5) which was given to the vendee calling upon him to perform his part of the agreement. A copy of the said notice was also issued to Harnam Singh, father of the subsequent vendee. In spite of that clear notice, the subsequent vendee and his father entered into agreements.(Ex.D3 and Ex.D4) to purchase the land in question from the vendor. The issuance of notice (Ex.PS) by the vendee clearly establishes that father of the subsequent vendee was having knowledge of the agreement in question (Ex.PI). Since the subsequent vendee and his father were residing together and as per the statement of the subsequent vendee himself, he used to consult his father about the land dealings, it cannot be believed that he was not having the knowledge of the agreement in question (Ex.Pl), Since the notice (Ex.P5) was received by father of the subsequent vendee, therefore, he did not join the subsequent vendee as co-vendee in execution of the sale deed Ex.Dl and Ex.D2 and the same were executed only in favour of his sons Ajaib Singh, so that the plea of not having the knowledge of the agreement in question (Ex.Pl) could be taken. It has also come on record that the sale deeds (Ex.Dl and Ex.D2) were scribed by Darshan Singh, deed write (DW.l), who had scribed the agreement in question (Ex.Pl). This fact also establishes that the subsequent vendee was having the knowledge of the earlier agreement (Ex.Pl). The subsequent vendee, while appearing as DW.5, did not state that he had made any bonafide enquiries from the village of the vendor where the disputed land is situated. Looking all the facts and circumstances and the evidence available on record, I have no reason to differ with the finding recorded by the learned trial court on this issue and thus, the same is also affirmed.
15. In the last, learned Senior counsel for the appellants, submitted that in the facts and circumstances of the case, decreeing the suit of the vendee for specific performance will be inequitable, particularly looking to the rise in price and the expiry of 26 years after the execution of the agreement of sale (Ex.P1) dated 13.12.1977. In this regard, learned Senior Counsel has referred to the decision of the Hon'ble Apex Court in Motilal Jain v. Smt. Ramdasi Devi, A.I.R. 2000 S.C. 2408 and Ram Niwas Gupta v. Mumtaz Hasan, (2002-2)131 P.L.R. 353.
16. I have considered the aforesaid contention raised by learned counsel for the appellants and have perused the aforesaid judgments. These judgments cited by learned Senior counsel for the appellants are not applicable to the facts and circumstances of the present case. I do not find any reason for not affirming the decree for specific performance of the agreement in question (Ex.Pl) in favour of the vendee, when the vendee has proved on record the execution of agreement of sale (Ex.Pl), payment of the earnest amount of Rs. 1 0,000/- to the vendor and his readiness and willingness to perform his part of contract and particularly when it has been established on record that the subsequent vendee is not bonafide purchaser for consideration without notice. Not only this, the vendor in the instance case has denied the execution of the agreement (Ex.Pl) as well as receipt of the earnest money and further he has taken a, false stand that the vendee was required to obtain the clearance certificate from the Land Mortgage Bank after making payment of his loan amount. After considering all these factors. I am of the opinion that the learned trial court has rightly decreed the suit for specific performance filed by the vendee. I do not find any force in the contention of learned Senior counsel for the appellants that the learned trial court should have decreed the alternative suit of the vendee.
In view of the aforesaid discussion and findings, I do not find any merit in the in stance appeal and the same is hereby dismissed. No order as to costs.
R.M.S.