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2012 DIGILAW 755 (HP)

Kehar Singh v. Prem Sharma

2012-10-30

SURINDER SINGH

body2012
Judgment Surinder Singh, J: 1. The defendant-appellant has directed the present appeal, having been felt aggrieved and dissatisfied by the judgment and decree passed by the learned District Judge in Civil Suit No.1 of 2010 decided on 15.6.2011 whereby the suit filed by the plaintiff for specific performance was decreed. Admitted Facts: 2. It is admitted by the parties that an agreement to sell Ext.PW1/A was executed by them on 30.7.2009 with respect to the suit land comprised of Khasra No.1542/639 to the extent of 0.5 Biswas qua the entire share of defendant for a total consideration of `.13 lacs and an amount of `. 7 lac was received by the defendant on the same day as an earnest money. The balance amount of `. 6 lac was required to be paid to the defendant on the date of execution and registration of the sale deed on or before 5.10.2009. Facts Disputed: 3. According to the plaintiff, after the execution of the agreement to sell, he had approached the defendant many times for executing the sale deed, but he started dilly-dallying. Finally, on 4.10.2009, he again contacted the defendant and requested him to receive the balance amount and execute the sale deed. The defendant assured him to be present on the next day i.e. on 5.10.2009 in Tehsil Office, Kullu, for the said purpose. Though, the plaintiff remained present there till 4.30 p.m. and was ready with the balance amount to perform his part of the contract, but the defendant failed to turn up. To prove his bonafide, he had sworn an affidavit Ext. PW4/A, before the Executive Magistrate. Further it is the case of the plaintiff that even thereafter he had approached the defendant in the month of December, 2009 and January, 2010, but the defendant did not give any positive response, as such, he served a notice upon him and in reply the defendant took up the false stands, thus filed the suit. 4. The defendant contested the suit by filing his written statement alleging that he was present on 5.10.2009 in Tehsil office, Kullu, but the plaintiff failed to turn up for the execution of the sale deed and to pay the balance amount. He also executed an affidavit Ext. DA duly attested by the Executive Magistrate to show his presence on the same day. He also executed an affidavit Ext. DA duly attested by the Executive Magistrate to show his presence on the same day. According to him, the plaintiff did not turn up with money, the agreement stood cancelled and earnest money paid by the plaintiff also stood forfeited. Thereafter the defendant raised the building over the suit land and now the question of execution of the sale deed did not arise at all. Thus, prayed for the dismissal of the suit. 5. In replication, the contents of the written statement have been totally denied and even paras of the plaint were reasserted and it is specifically averred that the suit land was already having an old structure at the time of execution of the agreement to sell, which was on the suit land and the subject matter of the sale. 6. On the rival contentions of the parties, the following issues were framed:- (1) Whether the plaintiff is ready and willing to perform his part of the agreement to sell dated 30.7.2009? OPP. (2) Whether the house on the suit land, subject matter of the agreement to sell dated 30.7.2009 was constructed prior to the execution of the agreement to sell dated 30.7.2009? OPP. (3) Whether the plaintiff has no cause of action to file the present suit? OPD. (4) Whether the suit of the plaintiff is not maintainable? OPD. (5) Whether the plaintiff has suppressed material facts from the Court? OPD. (6) Whether the plaintiff has no locus standi to file the present suit? OPD. (7) Relief. 7. After the complete trial, the learned trial Court answered issues No.1 and 2 in affirmative and others in negative, consequently, the suit of the plaintiff was decreed and a decree for possession of the suit land by way of specific performance of Contract was passed with a direction to the defendant to register the sale deed alongwith structure there upon in favour of the plaintiff on receipt of the balance amount of `. 6 lacs from the plaintiff on the basis of agreement aforesaid. 8. 6 lacs from the plaintiff on the basis of agreement aforesaid. 8. The defendant felt aggrieved and dissatisfied by the impugned judgment and decree, as such preferred the present appeal precisely on the ground that on 5.10.2009, the plaintiff was not present to perform his part of contract in Tehsil Office, Kullu, as such, money received by the defendant in advance stood forfeited as the time was essence of the Contract. It is also pointed out that there was no RCC structure standing over the suit land which is now worth `.30-40 lacs and was constructed only after the agreement stood cancelled. Thus, the learned trial Court has no pecuniary jurisdiction to try and hear the present suit. 9. Shri T.S. Chauhan, learned counsel for the appellant tried to develop the above points and submitted that the learned trial Court wrongly took the cognizance of the suit and also failed to appreciate the evidence on record in the right perspective. 10. On the other hand, Shri Sanjeev Kuthiala, learned counsel for the defendant supported the impugned judgment and decree passed by the learned trial Court and referred to the evidence on record to dislodge the contentions so raised. 11. From the rival contentions, the following points arise for determination:- 1. Whether the learned District Judge had no jurisdiction to try and hear the suit? 2. Whether the learned District Judge has also erred in holding that the structure already in existence stood included in the agreement to sell and that the evidence on record was mis-appreciated and mis-interpreted, which led to a wrong conclusion? 12. For the reasons mentioned hereinafter, my answer to both the above points is in negative. Point No.1. 13. In fact the valuation of the suit and any incidental issue, as pleaded in the plaint, determines the jurisdiction. Only the averments made in the plaint could be looked into while deciding the pecuniary jurisdiction of the Court. In para-13 of the plaint, the value of the suit for the purpose of Court fee and jurisdiction was assessed at `.13 lacs, i.e. the consideration amount upon which the court fee of `.15,600/- was affixed. This para is denied being wrong in the written statement. In para-13 of the plaint, the value of the suit for the purpose of Court fee and jurisdiction was assessed at `.13 lacs, i.e. the consideration amount upon which the court fee of `.15,600/- was affixed. This para is denied being wrong in the written statement. But the record of the learned trial Court reveals that on the date of framing of the issues on 8.10.2010, no other issue than already stated above were claimed or pressed before the learned District Judge. Further the defendant in his evidence-affidavit Ext.DW1/A also did not take up and agitate this issue nor led any evidence knowing-fully well his case, therefore, he is now precluded and estopped to take this plea in appeal. Further, I find that the consideration amount was `.13 lacs, on which the proper court fee was affixed and the learned District Judge was competent to hear and determine the case as it fell within its pecuniary jurisdiction, as such, this point is decided against the defendant. Point No.2: 14. The land in dispute is only 05 biswas which fell within the share of the defendant in the joint Khata and the consideration amount as agreed between the parties on 30.7.2009 at the time of execution of the agreement to sell, was `.13 lacs. The plaintiff had examined himself as PW4. He substantiated his plea taken in the plaint by his evidence-affidavit Ext.PW4/A that the suit land included two storeyed structure, which was already existing at that time. His plea and the stand taken by him is corroborated by PW5 Musadi Lal, a mason, who is stated to have been engaged by the defendant to construct the said building in the year 1996. According to him, first lintel was put in the month of February, 1997. He also gave specification of the structure. Further to prove the existence of the said building on the disputed land, plaintiff had examined PW-2 Dalip Singh, Lineman of the Electricity Board, who had brought the record of the electric connection of the said building, which was applied for by the defendant. He stated that the electric connection was given to the defendant for domestic use on 5.11.1999 and the meter was installed on 8.12.1999. He stated that the electric connection was given to the defendant for domestic use on 5.11.1999 and the meter was installed on 8.12.1999. He placed on record copies of the service connection order Ext.PW2/A, its report Ext.PW2/B, estimate Ext.PW2/C and proforma Ext.PW2/D alongwith a copy of the application Ext.PW2/E moved by the defendant for said connection. He was not seriously cross-examined to dispute the above facts. There is only one line cross-examination to which he admitted that the connections as applied were being given to the owner or the tenant. There is not even a remote suggestion put to him that the documents aforesaid did not pertain to the said building. The learned trial Court on the basis of the above evidence, in my opinion, rightly came to the conclusion that these documents falsify the stand taken by the defendant that he had obtained the electric connection for the structure constructed by PW5 Musadi Lal. Even the defendant did not dispute this fact in his cross-examination. If we have a look on the documents aforesaid, the sanctioned load was 4.80 Kilowatt and the survey estimate Ext.PW2/C shows the quantity of the items used for electric connection and another document Ext.PW2/E gives the details of the wattage for the structure/ building in existence. Interestingly, in his cross-examination, the defendant has admitted that in the said village, he did not have any other land except the suit land and facts are admitted that this land to the extent of his share was agreed to be sold to the plaintiff as aforesaid. The electric fittings with respect to the load and total electric material used do not indicate that these were the fitting of the temporary structure (Khokha), rather it shows that these fittings and the number of electric points provided therein was for a two storeyed building, which is virtually the subject matter of the agreement. 15. The above critical examination goes to show that the house in question was already in existence in the year 1998-99 much earlier to execution of the agreement to sell (Ext.P1), which was referred to, as a land and also both the parties knew fully well about its existence thereof and also about the subject matter of the sale. 16. 15. The above critical examination goes to show that the house in question was already in existence in the year 1998-99 much earlier to execution of the agreement to sell (Ext.P1), which was referred to, as a land and also both the parties knew fully well about its existence thereof and also about the subject matter of the sale. 16. Further the defendant’s plea is proved to be dishonest and he has failed to adduce any cogent evidence with respect to the construction of the said building as alleged after 5.10.2009. Once it is concluded that the building was in existence as aforesaid when the agreement to sell was executed and the consideration amount was reasonably agreed upon to be paid as aforesaid. 17. The next question arises whether the plaintiff had been ready and willing to perform his part of contract. 18. In fact an agreement to sell comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. Even it can be oral. It can be by exchange of communication which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to he purchased who accepts it. In the event of breach by the vendor, it can be specifically enforced by the purchased. 19. In the instant case, agreement is in writing and is complete. Advance money was paid and the balance amount was to be paid at the time of execution of the sale deed as stated above. The unsuccessful defendant is the appellant before this Court. 20. In Govind Prasad Chaturvedi v. Hari Dutt Shastri [ (1977) 2 SCC 539 ] the Supreme Court held :- “It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. The unsuccessful defendant is the appellant before this Court. 20. In Govind Prasad Chaturvedi v. Hari Dutt Shastri [ (1977) 2 SCC 539 ] the Supreme Court held :- “It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.” 21. In Swarnam Ramachandran v. Aravacode Chakungal Jayapalan [ (2004) 8 SCC 689 ] the apex Court reiterated the above proposition. Though in the agreement, time to perform the contract was indicated, but even thereafter the plaintiff had been pursuing hard by making request to the defendant to execute the sale deed and also served a notice upon him, this shows his continuous readiness. 22. Section 16 of the Specific Relief Act mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous “readiness and willingness” to perform the contract on his part from the date of the contract. The onus is on the plaintiff. The readiness and willingness cannot be the facts and circumstances relevant to the intention and conduct of the party concerned and it is a settled law that even the plaintiff has to comply with Section 16 of the Specific Relief Act and when there is noncompliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. As a matter of fact readiness to perform must be established throughout the relevant points of time to perform the part of the contract which has to ascertain/determine from the conduct of the parties, to which the plaintiff has successfully established. 23. Significantly, the receipt of the advance of `.7 lacs was admitted in the written statement by the defendant, but when examined himself as his own witness he denied this fact which spells out his ulterior motive. It is proved that the plaintiff was present on 5.10.2009 in the office of the Sub Registrar which was the last day of executing the agreement. He deposed that he had already approached the defendant on 4.10.2009 to execute the sale-deed on the receipt of the balance amount and he assured to be present in the office of the Sub Registrar on 5.10.2009, which fact has not been disputed by the defendant. When the defendant did not turn-up he executed affidavit Ext.PW3/A, which has been proved through the Clerk of the office of the Sub Registrar. In view of this, his contention assumes significance coupled with the fact that thereafter the plaintiff was trying to persuade the defendant to execute the sale-deed and ultimately served him with a notice, the receipt whereof was acknowledged by the defendant and in reply to that he took a U-turn that the plaintiff was not ready and willing to perform his part of the contract and he had also executed the affidavit to this effect. His affidavit executed before this Executive Magistrate is Ext.DA dated 5.10.2009, which is subsequent in time as per serial number of the affidavit Ext.PW3/A of the same date. Meaning thereby both were present on the same day in the office of the Sub Registrar, but the defendant did not contact the plaintiff to show his willingness to perform his part of the contract. The above facts coupled with the denial of the defendant as having not received even the earnest amount of `.7 lacs and the notice as well, exhibit his conduct that he was an unwilling party. The above facts coupled with the denial of the defendant as having not received even the earnest amount of `.7 lacs and the notice as well, exhibit his conduct that he was an unwilling party. Thus on the above facts, the learned trial Court rightly took into consideration the above facts while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance, therefore such a grant of the decree would not amount to an instrument of oppression giving unfair advantage to the plaintiff/proposed vendee. 24. In my opinion, the plaintiff has been able to establish his readiness and willingness throughout the relevant points of time. Thus, no fault can be found in the impugned judgment and decree of the learned trial Court. As such, the appeal is dismissed with costs. The defendant is hereby ordered to execute the sale-deed in favour of the plaintiff with respect to the suit land alongwith RCC structure standing thereon on the receipt of the balance consideration amount of Rs.6 lacs from the plaintiff on the basis of the agreement to sell dated 30.8.2009 on or before 30.12.2012, failing which the learned trial Court shall be at liberty to execute the impugned decree in accordance with law.