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2013 DIGILAW 872 (HP)

AVTAR KAUR v. KULWANT SINGH

2013-10-04

V.K.SHARMA

body2013
JUDGEMENT V.K.SHARMA, J. 1. THE original plaintiff, late Sh. Tajinder Singh on whose death his legal representatives, the present plaintiffs, were brought on record vide order dated 01.08.2013, had filed the present suit for grant of a decree for specific performance of agreement of sale dated 11.07.2011 (Ext.PW.1/A) against the defendants, out of whom, defendant No.2, State Bank of Patiala was deleted vide order dated 22.07.2013, leaving defendant No.1 as the sole defendant, with respect to the suit property (land and hotel), comprised in Khewat No.407, Khatauni No.628, Khasra No.2481/122, measuring 3843 00 square decimeters, situate at Upmohal Krishna Nagar, Mauza Gagret, Tehsil Amb, District Una, H.P., for a sum of Rs.43,00,000/ (rupees forty three lac only). As per averments set up in the plaint, . two sums of Rs.20,00,000/ (rupees twenty lac only) and Rs.14,00,000/ (rupees fourteen lac only) , totaling Rs.34,00,000/ (rupees thirty four lac only), were paid as earnest money and a further sum of Rs.9,50,000/ (rupees nine lac and fifty thousand only) is stated to have been paid to the deleted defendant No.2, State Bank of Patiala, Gagret by the original plaintiff to liquidate the outstanding amount of loan raised by defendant No.1, Sh. Kulwant Singh. Thus, in all a sum of Rs.43,50,000/ (rupees forty three lac and fifty thousand only) stood already paid by the original plaintiff, Sh. Tajinder Singh against the agreed sum of Rs.43,00,000/ (rupees forty three lac only). 2. ON being served and failure to put in appearance, defendant No.1 was proceeded against ex parte vide order dated 26.04.2013. The plaintiffs have led evidence including ex parte evidence. Besides examining three other witnesses, namely, PW.2, Sh. Malkiat Chand, Document Writer, the scribe of original agreement dated 11.07.2011, Ext.PW.1/A and supplementary agreement dated 29.09.2011, Ext.PW.1/C, PW.3, Sh. Ranbir Singh, Sarbrah Numberdar, one of the marginal witnesses to these agreements and PW.4, Sh. Harbilas, a marginal witness to agreement dated 11.07.2011, Ext.PW.1/A and writing dated 12.09.2011, Ext.PW.1/B, plaintiff No.3, Sh. Kirandeep Singh has appeared as plaintiffs' own witness as PW 1, who has deposed on oath as under: PW.1 Sh. Kirandeep Singh . "Stated that the original plaintiff late Sh. Tajinder Singh was my father. He died on 13.6.2013 and is survived by his legal representatives, the plaintiffs. The defendant, Sh. Kulwant Singh had executed an agreement of sale with respect to the suit property of (land and hotel) dated 11.7.2011 Ex. Kirandeep Singh . "Stated that the original plaintiff late Sh. Tajinder Singh was my father. He died on 13.6.2013 and is survived by his legal representatives, the plaintiffs. The defendant, Sh. Kulwant Singh had executed an agreement of sale with respect to the suit property of (land and hotel) dated 11.7.2011 Ex. PW 1/A in favour of my late father for a sum of Rs.43,00,000/ (rupees forty three lacs only), out of which a sum of Rs.20,00,000/ (rupees twenty lacs only) was paid as earnest money. The remaining sale consideration of Rs.23,00,000/ (rupees twenty three lacs only) was agreed to be paid on or before 30.9.2011. The said sum of Rs.20,00,000/ was paid through cheque. The defendant had handed over the possession of the suit property to my father at the time of execution of agreement Ex. PW 1/A. A further sum of Rs.14,00,000/ (rupees fourteen lacs only) was paid by my father to defendant towards the remaining sale consideration of Rs.23,00,000/ (rupees twenty three lacs only) from time to time, which was acknowledged by him vide writing dated 12.9.2011, Ex. PW 1/B on the reverse side of page 3 of the agreement Ex. PW 1/A. Thereafter, a supplementary agreement dated 29.9.2011, Ex. PW 1/C was executed by the defendant in favour of my late father. As per supplementary agreement Ex. PW 1/C a total sum of Rs.34,00,000/ (rupees thirty four lacs only) stood paid to the defendant. As per supplementary agreement Ex. PW 1/C, the defendant had agreed to execute the sale deed and get the same registered by 31.12.2011. He did not do the needful. However, later on, the defendant agreed to execute the sale deed and get the same registered from Sub Registrar, Amb on 31.12.2011 and asked my father to remain present in the office of the Sub Registrar, Amb on that date. However, though my father reached the office of the Sub Registrar, Amb on 31.12.2011 at 10:00 A.M., yet the defendant did not turn up throughout the day, consequently, affidavit Ex. PW 1/D was sworn by my father before the Executive Magistrate, Amb in token of his presence in the office of the Sub Registrar, Amb on that date. I am well conversant with the handwriting and signatures of my father. I identify his signatures on agreement Ex. PW 1/A, supplementary agreement Ex. PW 1/C and affidavit Ex. PW 1/D was sworn by my father before the Executive Magistrate, Amb in token of his presence in the office of the Sub Registrar, Amb on that date. I am well conversant with the handwriting and signatures of my father. I identify his signatures on agreement Ex. PW 1/A, supplementary agreement Ex. PW 1/C and affidavit Ex. PW 1/D. At the time of execution of agreement Ex. PW 1/A and supplementary agreement Ex.PW 1/C, the suit property was mortgaged with the original defendant No. 2, State Bank of Patiala, Gagret (since deleted) against the loan raised by the defendant, which was later on liquidated by my father, as the bank had started proceedings under the Securitization Act, due to which the sale deed could not be executed in his favour, pursuant to which the said bank was deleted as a party to the present suit vide order dated 22.7.2013. Against the takeover proceedings initiated by the bank, the defendant had filed a writ petition being CWP No. 5231 of 2011, titled Thind Picnic Spot Vs. State Bank of Patiala in the Hon'ble High Court of Himachal Pradesh, which was disposed of vide order dated 19.12.2011, copy of which is Ex. PW 1/E. Ex. PW 1/F is the original No Dues Certificate issued by the aforesaid bank on 30.5.2013. It was issued by the bank after my father paid a sum of Rs.9,50,000/ towards the outstanding amount of loan raised by the defendant. The defendant had issued a legal notice to my father through Sh. Tara Singh Chauhan, Advocate, which is Ex. PW 1/G. Notice Ex. PW 1/H was issued by my father to the defendant, . which was received back undelivered and is Ex. PW 1/J. (At this stage permission is sought to open envelop Ex. PW 1/J. Prayer considered and allowed in the interest of justice. On opening the envelop the original notice is taken out). The original notice is Ex. of PW 1/K. Ex. PW 1/L is copy of Jamabandi of the suit property. My father was an agriculturist in Himachal Pradesh, to this effect are copies of Jamabandies Ex. PW 1/M, Ex. PW 1/N and Ex. On opening the envelop the original notice is taken out). The original notice is Ex. of PW 1/K. Ex. PW 1/L is copy of Jamabandi of the suit property. My father was an agriculturist in Himachal Pradesh, to this effect are copies of Jamabandies Ex. PW 1/M, Ex. PW 1/N and Ex. PW 1/O. Out of the total sale consideration of Rs.43,00,000/ (rupees forty three lacs only), my father had already paid two sums of Rs.20,00,000/ (rupees twenty lacs only) and Rs.14,00,000/ (rupees fourteen lacs only), totaling Rs.34,00,000/ (rupees thirty four lacs only) to the defendant and where after a sum of Rs.9,00,000/ (rupees nine lacs only) remained to be paid, against which my Rs.9,50,000/ father paid a sum of (nine lacs fifty thousand only) to the bank to liquidate the loan raised by the defendant. My father was always ready and willing to perform his part of aforesaid agreements of sale, which were frustrated due to non performance by the defendant." 3. FROM the ex parte oral and documentary evidence led on behalf of the plaintiffs, which remains totally unrebutted, it is made out that whereas the original plaintiff and after his death, the present plaintiffs were and are even now ready and willing to perform their part of the agreement of sale dated 11.07.2011, Ext.PW.1/A, the defendant has utterly failed to perform his part of the said agreement even despite receipt of a sum of Rs.43,50,000/ (rupees forty three lac fifty thousand only), which is more than the entire sale consideration of Rs.43,00,000/ (rupees forty three lac only) by Rs.50,000/ (rupees fifty thousand only) in the manner stated in the plaint and deposed by plaintiff No.3, Sh. Kirandeep Singh, while appearing as PW 1. of 4. IN view of the above, the suit for specific performance of agreement dated 11.07.2011, Ext.PW.1/A, is decreed in favour of the plaintiffs and against the defendant ex parte with costs, with a direction to the defendant to execute sale deed in respect of the suit property in favour of the plaintiffs and get the same registered from the competent Authority within 60 days from today, failing which the sale deed shall be liable to be executed and registered under orders of this Court at the expenses of the defendant, for which liberty is reserved to the plaintiffs.