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2013 DIGILAW 220 (PNJ)

Baldev Singh v. Ramesh Kumar Bhardwaj

2013-02-19

M.JEYAPAUL

body2013
JUDGMENT Mr. M. Jeyapaul, J.: - C.M. No. 1659-C of 2013 Heard both sides. The annexures R-1 and R-2 are permitted to be placed on record. The application stands allowed. RSA No. 382 of 2013 1. The plaintiff Ramesh Kumar Bhardwaj filed a suit for specific performance of the agreement for sale and also for permanent injunction restraining the defendant from creating any encumbrance on the suit property. The suit was decreed by the trial Court. The appeal preferred by the defendant Baldev Singh was dismissed. Hence the present appeal by the defendant Baldev Singh. 2. The plaintiff has contended that the defendant entered into an oral agreement on 15.3.2006 agreeing to sell the suit property for a total sale consideration of Rs.5,50,000/-. The oral agreement was reduced into writing on 10.7.2006. An earnest money of Rs.3,90,000/- was paid to the defendant. The time for execution of the sale deed was fixed on 25.10.2006 on payment of balance sale consideration. On 25.10.2006, the plaintiff proceeded to the office of Sub-Registrar, Ludhiana and found that the office was closed as it was a holiday. The plaintiff sworn to an affidavit on 25.10.2006 and the same was attested by a Notary Public. The plaintiff again proceeded to the office of Sub-Registrar, Ludhiana on 26.10.2006 and got his affidavit attested by the Executive Magistrate. The defendant was not present on both occasions. The plaintiff had taken a demand draft for the balance sale consideration on 18.10.2006 itself. After exchange of notice, the plaintiff having found that the defendant was not willing to perform his part of the contract filed a suit for the aforesaid relief. 3. The defendant filed written statement admitting the very execution of the agreement of sale. It was contended that the sale consideration was settled at Rs.8,50,000/-. Only a sum of Rs.1,90,000/- was received by the defendant. The receipt of earnest money of Rs.3,90,000/- was denied by the defendant. It is contended that the suit filed by the defendant against the plaintiff as he threatened to take possession of the property illegally and forcibly was completely suppressed by the plaintiff. Thus the defendant has sought for dismissal of the suit. 4. The Courts below having adverted to the evidence on record held that the defendant executed the agreement for sale Ex. P2 dated 10.7.2006 having received the advance sale consideration of Rs.3,90,000/- . Thus the defendant has sought for dismissal of the suit. 4. The Courts below having adverted to the evidence on record held that the defendant executed the agreement for sale Ex. P2 dated 10.7.2006 having received the advance sale consideration of Rs.3,90,000/- . Though, the plaintiff was ready and willing to perform his part of the contract, the defendant was not ready to perform his part of the contract. The suit was, therefore, decreed as prayed for by the Courts below. 5. The learned counsel appearing for the appellant/defendant would submit that the Courts below have improperly adverted to the evidence on record and came to a perverse finding. It is his further submission that the Courts below had not taken into consideration the plea of the defendant that only a sum of Rs.1,90,000/- was received as earnest money and not Rs.3,90,000/- as projected by the plaintiff. He also referred to the decision of the Hon’ble Supreme Court in Gobind Ram Versus Gian Chand AIR 2000 Supreme Court 3106 to impress upon the Court that the grant of relief for specific performance is only a discretionary relief. 6. I have also heard the submission made by the learned counsel appearing for the respondent/plaintiff. 7. I find that there is no force in the submission made by the learned counsel appearing for the appellant/defendant. The defendant has unambiguously admitted the execution of the agreement for sale Ex. P2 dated 10.07.2006. Both the courts have rightly rejected the plea of the defendant that he had not received the earnest money of Rs.3,90,000/-, but received only a sum of Rs.1,90,000/- In the face of the evidence on PW-2 Bant Singh and PW-3 Manjit Singh who were the marginal witnesses to the agreement for sale Ex. P2, both the Courts below have also rightly held that the agreement for sale infact was executed only after receiving the earnest money of Rs.3,90,000/-based on the evidence of PW-2 and PW-3. 8. The defendant has agreed to execute the sale deed on or before 25.10.2006 receiving the balance sale consideration as per Ex.P2. The plaintiff has established by producing the affidavit Ex. P9 attested by the Notary Public that he was present in the Sub Registrar’s office, Ludihana but the defendant was not present. As the office was closed on the day he again appeared on 26.10.2006 and got his affidavit P-10 attested by the Executive Magistrate. The plaintiff has established by producing the affidavit Ex. P9 attested by the Notary Public that he was present in the Sub Registrar’s office, Ludihana but the defendant was not present. As the office was closed on the day he again appeared on 26.10.2006 and got his affidavit P-10 attested by the Executive Magistrate. He has also taken a demand draft Ex. P11 on 18.10.2006 itself for the balance sale consideration. The above evidence on record would go to establish that the plaintiff was ever ready and willing to perform his part of the contract. The Courts below have rightly held based on the above evidence that the plaintiff was ready and willing to perform his part of the contract. 9. In Gobind Ram, the Hon’ble Supreme Court, having referred to the fact that though the agreement for sale was executed by the defendant in favour of the plaintiff on 24.1.1973, a long battle waged by the defendant before the High Court as well as the Hon’ble Supreme Court ended only on 27.09.2000, thought it fit to direct the plaintiff to pay a further sum of Rs.3 lacs to the defendant. But in the instant case the agreement for sale was executed on 10.07.2006. The second appeal itself stands disposed of by this Court on 19.02.2013. Therefore, the question of directing the plaintiff to pay any more amount to the defendant does not arise for consideration. At any rate, I find that there is no perversity in the findings rendered by the Courts below. No substantial question of law has also arisen for determination. 10. Therefore, the appeal stands dismissed. There is no order as to costs.