Punjab-Haryana High Court
Ram Kishan And Others vs Chuni Lal And Others on 4 April, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No.1790 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1790 of 2014 (O & M)
Date of Decision: 04.04.2014
Ram Kishan and others
... Appellant(s)
Versus
Chuni Lal and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to
see the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. A.K.Jain, Advocate for the
appellants.
Paramjeet Singh, J. (Oral)
This regular second appeal is directed against the judgment and decree dated 11.12.2010 passed by learned Civil Judge (Sr. Divn.), Yamuna Nagar at Jagadhri whereby suit for possession by way of specific performance as well as permanent injunction or in alternative refund of earnest money has been decreed qua refund of earnest money and against the judgment and decree dated 03.03.2014 passed by learned Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 2 Additional District Judge, Yamuna Nagar at Jagadhri whereby appeal preferred by appellants-plaintiffs has been dismissed.
For convenience sake, reference to parties is being made as per their status in the suit.
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief fact are to the effect that plaintiffs filed suit for possession by way of specific performance of agreement to sell dated 07.09.2005 with regard to land measuring 77 kanals, fully mentioned in the head-note of plaint. Relief of permanent injunction restraining defendant no.1 from alienating, transferring or otherwise creating any sort of charge over any part of the suit land was also sought. It was pleaded in plaint that defendant no.1, being the owner of suit land measuring 77 kanals along with tube-wells and trees standing therein agreed to sell it to plaintiffs @ Rs.8,35,000/- per acre vide agreement to sell dated 07.09.2005 and received Rs.15 lacs as earnest money. There was a stipulation that sale deed was to be executed by defendant on or before 30.04.2006 on receipt of balance sale consideration i.e. Rs.65,36,875/-. It was further pleaded that at the time of agreement to sell, the suit property was under
mortgage with State Bank of India, Naharpur for Rs.4 lacs and it was assured by defendant no.1 that he would get the loan cleared by the stipulated date. The plaintiffs were and have always been ready and willing to perform their part of the agreement. Since 30.04.2006 was Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 3 holiday, the plaintiffs through their counsel issued notice to defendant no.1 to come present in the office of Sub Registrar, Jagadhri on 28.04.2006 for registration of sale deed. The plaintiffs came present in the office of Sub Registrar to perform their part of the agreement on 28.04.2006. Defendant no.1 was also present there on that day and with his consent, four sale deeds were got drafted, but he refused to execute the same without any reason. Since khasra girdawaris of some khasra numbers of the suit land were in the name of defendants no.2 to 5, their affidavits were also got prepared so that vendees could get entries corrected in their names, but they were not present there. On being assured by defendant no.1 that he would get the entries of khasra girdawaris corrected in the name of vendees, the matter was postponed for 01.05.2006. On 01.05.2006, the plaintiffs came present in the office of Sub Registrar with balance sale consideration, but defendant no.1 did not turn up and ultimately they got marked their presence in the office of Executive Magistrate, Jagadhari through an affidavit. The plaintiffs requested defendant no.1 to execute the sale deed in their favour, but to no avail. Hence, suit was filed.
Upon notice, defendant no.1 filed written statement admitting the factum of execution of agreement to sell between the parties. It was, however, alleged, that the agreement dated 07.09.2005 had already been cancelled by defendant no.1 on 03.05.2006 by serving regd. A.D notice upon the plaintiffs as they had failed to perform their part of agreement Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 4 as per terms and conditions of the agreement to sell. The sale deed was to be executed and registered on or before 30.04.2006, but the plaintiffs failed to get the same executed and registered in their favour. In fact, the plaintiffs were not having sufficient funds with them to pay the balance consideration. As per the terms and conditions of the agreement, defendant no.1 had already cleared the loan much before 28.04.2006. It was admitted that on 28.04.2006, the plaintiffs had purchased stamp paper but the same were under-value. The plaintiffs showed their inability to affix the ad valorem stamps to execute and register the sale deed and requested defendant no.1 to register the sale deed at lesser value, but he did not agree. On 28.04.2006, defendant no.1 along with his son Rajiv Kumar and Manju Bala remained present in the office of Sub Registrar throughout the day to execute and register the sale deed, but the plaintiffs did not perform their part of the agreement. Other averments in plaint were denied.
Defendants no.2 and 3 filed their joint written statement and pleaded that they are joint owners in possession of the suit land, being coparceners and members of the joint Hindu family. Defendant no.1 has got no legal necessity to alienate/transfer the land and even otherwise defendant no.1 is not legally competent to sell the suit property. Other averments in plaint were denied.
On the basis of pleadings of parties, the Court of first instance framed following issues:
Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 5
"1. Whether the defendant has executed an agreement to sell dated 07.09.2005 in favour of plaintiff for a total sale consideration of Rs.65,36,875/- and received Rs.15 lacs as earnest money from the plaintiff, as alleged in the plaint?OPP
2. Whether plaintiff had been and still ready to perform his part of contract?OPP
3. If issues no.1 and 2 are proved, whether plaintiff is entitled for relief of permanent injunction as prayed for?OPD
4. Whether the suit is not maintainable?OPD
5. Relief."
After appreciating the evidence, the Court of first instance decreed the suit directing defendant no.1 to refund the earnest money i.e. Rs.15 lacs to the plaintiffs along with interest, however, relief of specific performance was declined. Feeling aggrieved, the plaintiffs preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this regular second appeal.
I have heard learned counsel for the appellants and perused the record.
Learned counsel for the appellants has referred to following substantial questions of law suggested in the grounds of appeal for consideration by this Court:
(i) Whether the learned courts below have returned the findings in respect to the issue raised in pleadings?
(ii) Whether the evidence has been rightly construed by Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 6 both the courts below?
(iii) Whether the impugned judgments and decrees passed by both the courts below are perverse, wrong, illegal and against the law and facts on the file and are liable to be set aside in the present appeal?
(iv) Whether the impugned judgments and decrees passed by both the courts below are contrary to the settled law by this Court as well as by Hon'ble Supreme Court of India?
Learned counsel for the appellants has contended that as per revenue documents i.e. jamabandi for the year 2002-03 and khasra girdawari, defendants no.2 and 3 have been recorded to be in possession of the suit land and it was one of the terms of the agreement that defendant no.1 would hand over the vacant possession of the land in question. Learned counsel has further contended that the plaintiffs were having sufficient money, as they had already sold another land for more than Rs.1.15 crores just prior to the date fixed for execution of sale deed. The plaintiffs through their counsel had issued notice dated 26.04.2006 (Ex.P-13) requesting defendant no.1 to execute the sale deed on 28.04.2006, as 30.04.2006 i.e. last date fixed for execution of sale deed was holiday. Learned counsel has further contended that the plaintiffs had filed reply dated 06.05.2006 (Ex.P-17) to the notice dated 03.05.2006 (Ex.D-1) issued by defendant no.1 cancelling the agreement.
I have considered the contentions of learned counsel for the appellants and perused the record.
Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 7
Both the courts below have recorded concurrent finding that presence of defendant no.1 along with his son in the office of Sub Registrar on 28.04.2006, as requested by the plaintiffs vide notice (Ex.P-13) dated 26.04.2006, shows the bona fide intention of defendant no.1 to perform his part of the agreement to sell. There is also a concurrent finding of fact that statements of account (Ex.P-10 to P-12) and sale deeds (Ex.P-3, P-4 and P-18) show that the plaintiffs were not having balance sale consideration i.e. Rs.65,36,875/-. It has also been recorded that by the testimony of Mewa Lal, Cashier (PW 3) and Sunil Kumar (PW 4), it is proved that the plaintiffs had not purchased the stamp papers as per total value of the land shown in the agreement to sell. The intention of the plaintiffs shows that they wanted to deviate from the condition of the agreement to sell.
Besides this, the plaintiffs have not challenged the notice dated 03.05.2006 whereby contract was rescinded. However, reply to the said notice was filed. The plaintiffs have not sought the declaratory relief to declare the notice dated 03.05.2006 terminating the contract as illegal, null and void. Since the agreement stood terminated by defendant no.1 and termination had not been declared illegal, no agreement existed in favour of plaintiff on the day of filing of suit. As such, a suit for specific performance of non-existing agreement to sell is not maintainable. In I.S.Sikandar (D) by LRs vs. K. Subramani and others 2014 (1) RCR (Civil) 236, the Hon'ble Supreme Court has dealt Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 8 with the similar issue and has held as under:
"17. Answer to Point No.1 The first point is answered in favour of the defendant No. 5 by assigning the following reasons:
It is an undisputed fact that there is an Agreement of Sale executed by defendant Nos.
1-4 dated 25.12.1983 in favour of the plaintiff agreeing to sell the schedule property in his favour for a sum of Rs. 45,000/- by receiving an advance sale consideration of Rs.5,000/- and the plaintiff had further agreed that the remaining sale consideration will be paid to them at the time of execution of the sale deed. As per Clause 6 of the Agreement of Sale, the time to get the sale deed executed was specified as 5 months in favour of the plaintiff by the defendant Nos.1-4, after obtaining necessary permission from the competent authorities such as the Urban Land Ceiling Authority and Income Tax Department for execution and registration of the sale deed at the cost and expenses of the plaintiff. If there is any delay in obtaining necessary permission from the above authorities and the payment of layout charges, the time for due performance of agreement shall further be extended for a period of two months from the date of grant of such permission. In the instant case, permission from the above authorities was not obtained from defendant Nos. 1-4. The period of five months stipulated under clause 6 of the Agreement of Sale for execution and Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 9 registration of the sale deed in favour of the plaintiff had expired. Despite the same, the defendant Nos. 1-4 got issued legal notice dated 06.03.1985 to the plaintiff pointing out that he has failed to perform his part of the contract in terms of the Agreement of Sale by not paying balance sale consideration to them and getting the sale deed executed in his favour and called upon him to pay the balance sale consideration and get the sale deed executed on or before 18.3.1985. The plaintiff had issued reply letter dated 16.3.1985 to the advocates of defendant Nos. 1-4, in which he had admitted his default in performing his part of contract and prayed time till 23.05.1985 to get the sale deed executed in his favour. Another legal notice dated 28.03.1985 was sent by the first defendant to the plaintiff extending time to the plaintiff asking him to pay the sale consideration amount and get the sale deed executed on or before 10.04.1985, and on failure to comply with the same, the Agreement of Sale dated 25.12.1983 would be terminated since the plaintiff did not avail the time extended to him by defendant Nos. 1-4. Since the plaintiff did not perform his part of contract within the extended period in the legal notice referred to supra, the Agreement of Sale was terminated as per notice dated 28.03.1985 and thus, there is termination of the Agreement of Sale between the plaintiff and defendant Nos. 1-4 w.e.f. 10.04.1985. As could be seen from the prayer sought for in the original suit, the plaintiff has not Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 10 sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law. Accordingly, the point No. 1 is answered in favour of the defendant No.5."
In view of above, no further discussion is required to arrive at a definite conclusion that relief of specific performance has been rightly declined as contract had already been terminated by defendant no.1 vide legal notice dated 03.05.2006.
Both the courts below have recorded concurrent findings of fact. Learned counsel for the appellants could not show that said findings are perverse or illegal or based on misreading, non-reading or misappreciation of the material evidence on record. Consequently, concurrent findings of fact recorded by both the courts below do not warrant interference in regular second appeal. No question of law, muchless substantial question of law, as alleged, arises for adjudication Kumar Parveen 2014.04.23 12:36 I attest to the accuracy and integrity of this document RSA No.1790 of 2014 11 in this second appeal.
No other point has been urged.
Dismissed in limine.
04.04.2014 (Paramjeet Singh)
parveen kumar Judge
Kumar Parveen
2014.04.23 12:36
I attest to the accuracy and
integrity of this document