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2005 DIGILAW 533 (PNJ)

Raj Pal Singh v. Baldev Singh

2005-04-27

ADARSH KUMAR GOEL

body2005
Judgment Adarsh Kumar Goel, J. 1. The appellant filed a suit for specific performance of agreement to sell dated 14.9.1978, Ex.P1, whereby the defendants agreed to sell the suit land to the plaintiff-appellant for Rs. 15,000/-. Sale deed was to be executed by 30.11.1978. 2. Case of the plaintiff is that he went with the money on 30.11.1978 but the defendants did not turn up. On 1.12.1978, the plaintiff gave a telegram to the defendants mentioning that though they failed to appear before the Sub-Registrar on 30.11.1978, they should now appear before the Sub Registrar on 5.12.1978. 3. The Trial Court decreed the suit on 13.11.1979. It was held that agreement to sell was duly proved and readiness and willingness to perform his part of the contract was also duly proved from his evidence as PW-6 which was corroborated by the evidence of PW-2 Jain Singh who had accompanied the plaintiff to the office of Sub Registrar on 30.11.1978. Telegram Ex.PW-6/1 was also duly proved apart from application Ex.PW-5/4 moved before the Sub Registrar and affidavit Ex.PW-3/2.Clerk of the Bank PW-4 Sukhman Singh proved that money was deposited by the plaintiff in the Bank on 8.12.1978. 4. The lower appellate court held that the defendants appeared before the Sub Registrar while the plaintiff was not proved to have appeared. As regards the telegram, it was held that though, the defendants admitted the telegram but they were not bound to go to the Sub Registrar after expiry of the date as time was the essence of the contract. 5. Hence this appeal. 6. Learned counsel for the appellant submitted that substantial question of law arises for consideration as to whether time could be held to be the essence of the contract and whether the lower appellate court was justified in holding that readiness and willingness of the plaintiff was not proved when telegram given on the very next date has been duly proved. 7. Learned counsel for the respondents supported the findings of the lower appellate Court. 8. Admittedly, the appellant gave telegram on 1.12.1978 which was duly received by the defendants. The appellant filed suit on 11.12.1978 itself. These facts are enough to show that plaintiff had been ready and willing to perform his part of the contract. 7. Learned counsel for the respondents supported the findings of the lower appellate Court. 8. Admittedly, the appellant gave telegram on 1.12.1978 which was duly received by the defendants. The appellant filed suit on 11.12.1978 itself. These facts are enough to show that plaintiff had been ready and willing to perform his part of the contract. No reasons have been given by the lower appellate Court for rejecting the view of the trial Court based on the evidence of PW-5, Raj Pal Singh, plaintiff and PW-2 Jai Singh, holding that the plaintiff went to the Sub-Registrar on 30.11.1978 itself. In any case, it cannot be held the plaintiff was not ready and willing to perform his part of the contract, even if the plaintiffs presence before the Sub-Registrar on 30.11.1978 was not fully established. 9. In Smt. Chand Rani (Dead) by L.Rs. v. Smt. Kamal Rani (dead) by LRs., , the Apex Court held:- "From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. from the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example, the object of making the contract." 10. In view of the above, the view taken by the lower appellate Court in holding that the plaintiff was not ready and willing to perform his part of the contract, is perverse and unsustainable in law. Accordingly, finding of the lower appellate Court that plaintiff was not ready and willing to perform his part of the contract is liable to be set aside. 11. Even though, suit of the plaintiff would have been liable to be decreed but since land has already been acquired, specific performance decree cannot be passed. The appellant, will, however, be entitled to compensation for the suit property. 12. Vide order dated 27.5.1991, this Court directed that the compensation amount deposited with the Land Acquisition Collector may not be disbursed to either party. The appellant, will, however, be entitled to compensation for the suit property. 12. Vide order dated 27.5.1991, this Court directed that the compensation amount deposited with the Land Acquisition Collector may not be disbursed to either party. The respondents, however, illegally withdrew the amount but on account of subsequent orders of this Court dated 17.3.2004 and 29.9.2004, the amount has been deposited in this Court. 13. In these circumstances, the suit of the appellant is decreed to the extent that he will be entitled to recover the amount of compensation received by the respondents. The amount deposited by the respondents in this Court can be withdrawn by the appellant. The respondent will be liable to pay interest at the rate of 6% per annum for the period they retained the amount. If apart from the amount deposited in this Court, any other amount has been received by the respondents towards compensation for the suit land, the appellant will be entitled to recover the same. 14. The respondents will be entitled to price of the land which the appellant deposited pursuant to the decree of the trial Court. 15. The appeal, is accordingly, allowed in above terms.