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2001 DIGILAW 1238 (PNJ)

Amrik Singh v. Harjeet Singh

2001-11-05

ADARSH KUMAR GOEL

body2001
JUDGMENT Adarsh Kumar Goel, J. - The respondents-plaintiffs filed suit for specific performance of agreement to sell dated 17.1.1990 executed by the appellants- defendants for sale of agricultural land measuring 33 bighas 3 Biswas. The sale was to be executed for Rs. 4,27,435/- out of which a sum of Rs. 65,000/- was paid as earnest money and rest of the amount was to be paid on 11.6.1990. Respondents stated that they were always ready and willing to perform their part of the contract and went to the office of the Sub Registrar on 11.6.1990 with balance consideration, but the appellants-defendants did not turn up. In the alternative to decree for specific performance, the plaintiffs prayed for decree for recovery of Rs. 4,27,635/- by way of recovery of earnest money and the damages. 2. Appellants-defendants contested the suit and submitted that the plaintiffs did not have money and were not willing to make the payment. The defendants contested the genuineness of the report about appearance of the plaintiffs before Sub Registrar on 11.6.1990 and have stated that the defendants are still ready and willing to execute the sale deed, if the plaintiffs paid the money upto 6.8.1990, failing which their earnest money should be allowed to be forfeited. 3. The trial Court, after appreciating the evidence on record, dismissed the suit. It was held that the readiness and willingness of the plaintiffs was not proved in view of the following :- a) there was an earlier agreement in favour of father of the plaintiffs, under which the sale consideration was payable upto 7.11.1989, on which date the sale deed of half share was to be executed and though the said date was extended upto 20.12.1989, the amount was not paid even upto the extended date and it was thereafter that a fresh agreement was signed on 17.1.1990 the defendants entered into an agreement to purchase another land on 11.5.1990 in anticipation of receiving money from the plaintiffs on 11.6.1990, as agreed; the defendants needed money to get the sale deed executed in their favour, for which the last date was 15.6.1990 and there was no reason for the defendants not to execute the sale deed on 11.6.1990. b) The defendants got extension of time of pay money to purchase the land, for which extension was given upto 7.8.1990 and therefore, in the written statement filed on 30.7.1990, the defendants made an offer that the defendants were still ready to execute the sale deed upto 6.8.1990 and on 6.8.1990, the defendants moved an application stating that they were ready to execute the sale deed as per their undertaking in the written statement and the plaintiffs did not accept the said offer and sought an adjournment upto 11.8.1990, then to 17.8.1990 and then to 21.8.1990 and only on 28.8.1990, the plaintiffs filed their reply and on 21.8.1990, the plaintiffs moved an application to seek direction against the defendants to execute the sale deed, but the defendants did not agree to execute the sale deed on the ground that on account of failure of the plaintiffs to pay money in time, the defendants earnest money was forfeited. c) The plaintiffs had not shown that they had the sale consideration on 11.6.1990 and in the bank account relied on by the plaintiffs, a sum of Rs. 297.50 was available on 11.6.1990 and a sum of Rs. 81,000/- was available on 12.6.1990 while the amount required to be paid was Rs. 3,62,635/- besides expenses of stamp and other charges amounting to Rs. 65,000/-. 4. The appellate Court reversed the decree of the trial Court and granted a decree for possession by way of specific performance. It was held that the plaintiffs were ready and willing to perform their part of the contract, as they got their affidavits attested from the Executive Magistrate on 11.6.1990, approached the defendants to get the sale deed registered on 1.7.1990 and filed the suit for specific performance on 5.7.1990; the offer in the written statement could not be availed of by the plaintiffs, as the Court did not pass any order on the said offer; since the plaintiffs had gone to the office of the Sub Registrar, it was not necessary to prove that the plaintiffs had the money with them; Ex. PW3/A showed that a sum of Rs. 81,000/- was deposited in the account of Rachan Singh, father of the plaintiffs, Ex. D3 (affidavit) showed the presence of the defendants in the office of the Sub Registrar; no evidence was produced to show that the defendants had gone to the office of the Sub Registrar. 5. PW3/A showed that a sum of Rs. 81,000/- was deposited in the account of Rachan Singh, father of the plaintiffs, Ex. D3 (affidavit) showed the presence of the defendants in the office of the Sub Registrar; no evidence was produced to show that the defendants had gone to the office of the Sub Registrar. 5. Counsel for the appellants submitted that the finding of the appellate Court was perverse and that the plaintiffs-respondents failed to prove that they were ready and willing to perform their part of the contract, in absence of proof of the money being available with the plaintiffs. 6. Counsel for the respondents supported the finding of the appellate Court. 7. The following substantial questions of law are involved in the matter :- 1) Whether the plaintiffs were always ready and willing to perform their part of the contract and are entitled to decree for specific performance ? 2) Whether the plaintiffs are entitled to alternative relief of compensation under the Specific Relief Act (for short, the Act) ? 8. Counsel for the appellants submitted that the trial Court rightly held that the plaintiffs were not always ready and willing to perform their part of the contract. Since the plaintiffs were not able to show that they had the money on 11.6.1990 when the sale deed was to be executed, they did not avail of the offer in the written statement and in the application filed by the defendants to execute the sale deed, if money was paid by the plaintiffs upto 6.8.1990. It is submitted that the appellate Court erred in reversing the said finding by wrongly interpreting the Supreme Court decision in Sukhbir Singh v. Brij Pal, AIR 1996 SC 2150, wherein the Supreme Court on the facts of that case held that inference of plaintiff having sale consideration could be drawn from his presence in the office of Sub Registrar. He relied on decisions reported in Surjit Kaur v. Naurata Singh, 2001(2) Indian Civil Cases 510, Ram Awadh v. Achhaibar Dubey, 2000(1) Civil Court Cases 702; His Holiness Acharya Swami Ganesh Dasji v. Sita Ram Thapar, 1996(2) Civil Court Cases 652; Jugraj Singh v. Labh Singh, AIR 1995 SC 945; N.P. Thirugnanam v. Dr. He relied on decisions reported in Surjit Kaur v. Naurata Singh, 2001(2) Indian Civil Cases 510, Ram Awadh v. Achhaibar Dubey, 2000(1) Civil Court Cases 702; His Holiness Acharya Swami Ganesh Dasji v. Sita Ram Thapar, 1996(2) Civil Court Cases 652; Jugraj Singh v. Labh Singh, AIR 1995 SC 945; N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, 1996(1) Civil Court Cases 27; Karnail Singh v. Kishan Singh, 1988 Civil Court Cases 297; Pradip Kumar v. Bimala Banerjee, 2000(1) Indian Civil Cases 537; Kashi Nath v. Sigh Gopal, AIR 1984 Notes of Cases 144; Har Pratap Singh v. Satya Narain, AIR 1980 Allahabad, 52; Chandrakant Shantilal v. Savitabehn Thakorlal Shah, 1993 Civil Court Cases 243 and Tatavarthi Jagannadham v. Akkineni Radhakrishna, 1998(1) Recent Civil Reports (Civil) 177. 9. After hearing counsel for the parties, I find force in the submission of the counsel for the appellants that the plaintiffs are not proved to have been always ready and willing to perform their part of the contract and that it is not categorically shown that the plaintiffs had the money and were willing to pay the money. Answer to the first question is, therefore, in favour of the appellants and against the respondents. 10. On the second question, counsel for the appellants - defendants made a statement on October 30, 2001 that his clients are willing to pay a sum of Rs. five lacs as compensation. Apart from this, I find that the defendants had made a breach of the agreement to sell. The plaintiffs filed an application in the trial Court on 21.8.1990 seeking a direction to the defendants to execute the sale deed and the defendants refused to do so on the ground that earnest money paid by the defendants for purchase of some other land had already been forfeited and therefore, the defendants were not willing to execute the sale deed. The plaintiffs had filed suit for specific performance immediately after expiry of the date, on which sale deed was to be executed. Even though the plaintiffs have been held not to be entitled to decree for specific performance, as the plaintiffs have not been able to fully prove that they were always ready and willing to the perform their part of the contract, the plaintiffs are entitled to alternative relief of compensation under the Act. The defendants have also offered to pay a sum of Rs. The defendants have also offered to pay a sum of Rs. five lacs as compensation in lieu of the decree for specific performance. The claim of the plaintiffs is for Rs. 4,27,635/- with costs and the said amount with future interest from the date of filing of the suit till realisation will work out to more than five lacs, but having regard to circumstances of the case, the plaintiffs are held entitled to a total sum of Rs. 5,00,000/- by way of alternative relief of compensation which is the amount, the defendants have also agreed to pay by way of compromise. 11. The plaintiffs were required to deposit the balance sale consideration under the decree of the lower appellate Court and the said amount was accordingly deposited by the plaintiffs, but under the interim order of the Court dated 23.3.1999, the plaintiffs were permitted to withdraw the said amount without prejudice to their rights. The appellants-defendants were required to make a deposit of Rs. 65,000/- vide order dated 23.3.1999 passed by this Court as a condition for stay of execution of the decree and the said amount was to be invested in FDR for five years. The said amount will now be allowed to be withdrawn by the plaintiffs. The defendants- appellants are liable to pay the rest of the amount. 12. For the above reasons, this appeal is partly allowed, the decree of the lower appellate Court is set aside and instead, the respondents- plaintiffs are granted a decree for Rs. 5,00,000/- out of which amount, the amount of Rs. 65,000/- with interest accrued thereon deposited by the appellants-defendants will be withdrawn by the respondents-plaintiffs and will be adjusted towards the decretal amount of the appellants-defendants will deposit the rest of the amount within two months from today, failing which the respondents-plaintiffs will be free to recover the same by attaching and selling the suit land or by any other legal means. If the amount is not paid by the appellants-defendants-appellants will be liable to pay further compensation @ 24% per annum on the balance of the amount of Rs. five lacs and the defendants shall also be liable to pay the costs of the suit throughout, quantified at Rs. 50,000/-. Appeal partly allowed.