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2013 DIGILAW 157 (PNJ)

Som Nath v. Bhupinder Kaur @ Binder Kaur

2013-02-08

M.Jeyapaul

body2013
JUDGMENT Mr. M. Jeyapaul, J.: - The unsuccessful defendant in a suit for specific performance of the agreement for sale having suffered a decree therefor before both the Courts below, has preferred the present appeal. 2. Plaintiffs have contended in the plaint that the defendant entered into agreement for sale vide agreement dated 5.4.2004 with the plaintiffs agreeing to sell the suit property at the rate of Rs. 4 lacs per 4 Bighas 16 Biswas. A sum of Rs.3,00,000/- was also paid as an earnest money at the time of execution of the agreement for sale. The sale-deed was to be executed on or before 5.7.2004 after payment of the balance sale consideration of Rs.7,41,000/- as per terms of the agreement. Contending that the plaintiffs were ready and willing to purchase the suit property for paying the balance consideration but the defendant never visited the Sub Registrar’s office on 5.7.2004 for execution of the sale-deed, the plaintiffs sought for the relief as stated supra. 3. Defendant admitted the execution of the agreement for sale and the time frame fixed for execution of the sale-deed on receipt of balance sale consideration of Rs.7,41,000/- in the written statement but it was contended that Gurnam Singh, representative of the plaintiffs, came to the shop of the defendant on 3.7.2004 and sought for extension of time for execution of the sale-deed on the pretext that the plaintiffs were not ready with the balance sale consideration. Refusing to accede to such a request, the defendant proceeded to the office of the Sub Registrar, Mohali, on 5.7.2004 for execution of the sale-deed. Plaintiffs came along with Gurnam Singh to the office of Sub Registrar, Mohali, and sought for extension of time for execution of the saledeed. Defendant refused to grant any extension of time. Contending that the plaintiffs were not ready and willing to perform their part of the contract, the defendant sought for dismissal of the suit. 4. Plaintiffs came along with Gurnam Singh to the office of Sub Registrar, Mohali, and sought for extension of time for execution of the saledeed. Defendant refused to grant any extension of time. Contending that the plaintiffs were not ready and willing to perform their part of the contract, the defendant sought for dismissal of the suit. 4. Both the Courts below having relied upon the evidence of PW-2 Davinder Singh, Lambardar, in the background of affidavit, Exhibit P-2, sworn to by the plaintiffs in the office of the Sub Registrar, Mohali, and rejecting the evidence of DW-2 Mansa Singh in the background of the affidavit, Exhibit DW-1/B, sworn to by the defendant on the very same day before the Sub Registrar, Mohali, held that the plaintiffs were ever ready and willing to perform their part of the contract and consequently, decreed the suit for specific performance of the agreement for sale. 5. Learned counsel appearing for the appellant-defendant would vehemently submit that the Courts below have recorded a perverse finding without giving due weightage to the evidence of DW-2 Mansa Singh and the affidavit Exhibit DW-1/B sworn to by the defendant in the office of Sub Registrar. It is his further submission that the fact that no stamp-papers were purchased and the draft sale-deed was not made ready by the plaintiffs, would go to show that the affidavit Exhibit P-2 was a concocted document for the purpose of this case. 6. I find that there is no merit in the appeal preferred by the defendant aggrieved by the concurrent verdict of the Courts below. The Courts below have rightly disbelieved the evidence of DW-2 Mansa Singh and the affidavit Exhibit DW-1/B alleged to have been sworn to by the defendant in the office of Sub Registrar, Mohali. Firstly, it is found that Exhibit DW-1/B was sworn to by the defendant as though the plaintiffs never visited the Sub Registrar’s office on 5.7.2004 for the purpose of getting the sale-deed executed but quite unfortunately in the written statement the defendant, having completely forgotten the stand he had taken in the alleged affidavit, Exhibit DW-1/B, has come out with a different version that in fact the plaintiffs were present at the fag-end of the day but he refused to accede to their request for extension of time for execution of the sale-deed. In other words, the defendant has not come out with a consistent version with that of his affidavit Exhibit DW-1/B alleged to have been sworn to by him. 7. There is yet another reason for rejecting the affidavit Exhibit DW-1/B by the Courts below. DW-2 Mansa Singh has stated during the course of cross-examination that the affidavit Exhibit DW-1/B could not be attested on 5.7.2004 as the Sub Registrar had already left his office. The above revelation of DW-2 would show that till the Sub Registrar left the office after performing his official duty, the defendant had not shown his face before the Sub Registrar and that he had sworn to the affidavit Exhibit DW-1/B, after the Sub Registrar had left, for the purpose of making a defence in this case. 8. It is found that the plaintiffs without any loss of time had filed the present civil suit on 24.7.2004 itself, having been aggrieved by the conduct of the defendant on 5.7.2004. 9. Law does not contemplate issuance of any pre-suit notice for laying a suit for specific performance of agreement for sale. Issuance of any notice by the plaintiffs would become redundant as they had chosen to knock at the doors of the civil Court within 19 days from the last date fixed for execution of the sale-deed under the agreement Exhibit P-1. In my view, the Courts below have rightly evaluated the evidence on record and come to the conclusion based upon the evidence of PW-2 rejecting the affidavit Exhibit DW-1/B and evidence of DW-2 who has deposed in the background of the affidavit Exhibit DW-1/B. 10. Learned counsel appearing for the appellant-defendant cited a decision of this Court in Amrik Singh v. Harjeet Singh, 2002(1) RCR(Civil) 502. That was a case where the plaintiffs failed to establish their readiness and willingness to perform their part of the contract. In view of the above, the decision in Amrik Singh’s case (supra) will not apply to the facts of this case where the plaintiffs could establish that they were ready and willing to perform their part of the contract. 11. Learned counsel appearing for the appellant cited a decision of the Hon’ble Supreme Court in Surjit Kaur v. Naurata Singh, 2000(4) RCR (Civil) 513. 11. Learned counsel appearing for the appellant cited a decision of the Hon’ble Supreme Court in Surjit Kaur v. Naurata Singh, 2000(4) RCR (Civil) 513. That was a case where an agreement-holder insisted upon delivery of possession of the property under the agreement for sale before embarking upon execution of the sale-deed by the vendor. It was established in that case that on the last date fixed for execution of the sale-deed, the vendor was present and expressed her readiness and willingness to execute the saledeed but it was only the agree-holder who did not choose to get the sale-deed executed. But in the instant case, it stands established that it was only the plaintiffs who were ready and willing to perform their part of the contract. Therefore, Surjit Kaur’s case (supra) also will not apply to the facts and circumstances of this case. 12. I find that there is no illegality or perversity in the judgment and decrees passed by the Courts below. No question of law also has arisen for determination in this appeal. Therefore, the appeal stands dismissed. ---------0.B.S.0------------