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2013 DIGILAW 326 (HP)

Chaman Lal v. Nanki

2013-04-18

SANJAY KAROL

body2013
JUDGMENT : Sanjay Karol, J. Plaintiff Shri Chaman Lal has filed the present suit for specific performance of agreement dated 8.4.2009 (Ex. P-1) entered into between him and defendant Smt. Nanki. Defendant was proceeded ex-parte on 6.3.2012. She has chosen not to contest the present suit thereafter. 2. As per averments made in the plaint, on 8.4.2009 agreement (Ex. P-1) was executed between the plaintiff and the defendant, whereby defendant, being absolute owner in possession, agreed to sell 00-23-93 hectares of land, comprising Khewat Khatauni No.106/129 (Old Khata Khatauni No.64/109 min), Khasra No.436, situated in Mohal Kufri Junga Hadbast No.228, Tehsil and District Shimla, Himachal Pradesh. Total sale consideration agreed was Rs.19,05,000/-, out of which a sum of Rs.4,50,000/- was paid as advance money and the balance sale consideration of Rs.14,55,000/- was to be paid at the time of execution of the sale deed before the Office of the Sub Registrar (Rural), Shimla. The sale deed was to be executed on or before 31.12.2009. 3. Plaintiff served legal notice dated 7.12.2011 (Ex. P-2), calling upon the defendant to fulfill her contractual obligations to which there was no response, as receipt of the notice was refused. Defendant has also not come forward to execute the sale deed. 4. This Court, on 31.5.2012, framed the following issues: 1. Whether the defendant entered into an agreement to sell the suit land with the plaintiff on 08.04.2009, as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled to decree of specific performance of agreement to sell dated 08.04.2009? OPP 3. Relief. 5. Both these issues are interconnected and, therefore, are being decided together. To prove the same, plaintiff examined himself (PW-1) and also the marginal witness Shri Rajinder Singh (PW-2). 6. Plaintiff has stepped into the witness box and proved the agreement to sell dated 8.4.2009 (Ex. P-1). He has deposed that the agreement was executed in the presence of the marginal witnesses, including PW-2. He has verified the execution and signing of the agreement by the defendant in his presence. He has also proved that a total sum of Rs.4,50,000/- stands paid to the defendant, which fact is duly recorded in the agreement (Ex. P-1). P-1). He has deposed that the agreement was executed in the presence of the marginal witnesses, including PW-2. He has verified the execution and signing of the agreement by the defendant in his presence. He has also proved that a total sum of Rs.4,50,000/- stands paid to the defendant, which fact is duly recorded in the agreement (Ex. P-1). It stands proved by him that he has telephonically and otherwise orally contacted the defendant to execute the sale deed and receive the balance sale consideration, but however, the defendant has refused to do so. It stands proved that he has sent a legal notice dated 7.12.2011 (Ex.P-2) through his counsel. Postal receipt is Ex. P- 3. It is seen that the registered letter was received back undelivered with a note "Lene se inkaar" (refused to accept). As such, under the provisions of the General Clauses Act, 1897, there is a presumption that the legal notice, which is correctly addressed and duly stamped, is duly served upon the defendant. Each page of the notice is duly signed. Plaintiff has also proved that he is ready and willing to perform the contractual obligations, in terms of the agreement (Ex. P-1). He has the arrangements for paying balance sale consideration. Copy of the Jamabandi is Ex. P-6. 7. Testimony of PW-1 stands duly corroborated by the testimony of PW-2, with regard to the execution of the agreement between the parties, i.e. the plaintiff and the defendant, and also the factum of receipt of the advance sale consideration by the defendant. 8. As such, in my considered view, plaintiff has been able to prove the issues, which are answered to the effect that the defendant entered into an agreement (Ex. P-1) dated 8.4.2009 with the plaintiff for sale of the suit land, description of which is given in the agreement and that defendant has not come forward to execute the sale deed, despite efforts so made by the plaintiff and as such plaintiff is entitled for a decree of specific performance of the agreement. 9. Hence, present suit for specific performance of the agreement (Ex. 9. Hence, present suit for specific performance of the agreement (Ex. P-1) to sell is decreed, with costs, and the defendant is directed to get the sale deed registered in favour of the plaintiff, with respect to the suit land measuring 00-23- 93, comprising Khewat Khatauni No.106/129 (Old Khata Khatauni No.64/109 min), Khasra No.436, situated in Mohal Kufri Junga Hadbast No.228, Tehsil and District Shimla, Himachal Pradesh, and put the plaintiff into possession, upon receipt of the balance sale consideration. Decree sheet be prepared accordingly. 10. Pending application, if any, also stands disposed of.