Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1102 (HP)

Arun Chauhan v. Geeta Thakur

2014-08-20

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. The plaintiff has instituted the instant suit for specific performance of the contract of 22.12.2006 entered into by him with defendant No. 1. The plaintiff avers that he entered into an agreement to sell with defendant No. 1 on 22.12.2006 whereby defendant No. 1 agreed to sell land measuring 9 bigha, 7 biswa situated at mauja Chamiyana, Tehsil and District Shimla, H.P., for a total consideration of Rs. 45,00,000/-. Defendant No. 1 has been averred to have at the time of execution of the agreement to sell received from the plaintiff a sum of Rs. 3,00,000/- and the remaining amount of Rs. 42,00,000/- was agreed to be defrayed to the seller by the buyer at the time of registration of the sale deed. Besides, it is averred that it was also mandated in the agreement to sell entered into inter se the parties at contest that the sale deed qua the suit property would be executed within three months from the date of execution of the agreement to sell. A clause was incorporated in the agreement to sell entered into inter se the parties at contest that in case the seller omits to execute the sale deed in favour of the purchaser within three months from the date of execution of the agreement to sell or she resile from the promise comprised in agreement to sell, to execute the registered deed of conveyance in favour of the plaintiff, within the stipulated period of three months, then, the plaintiff was conferred with a right in the agreement to sell to specifically get the agreement enforced, as also, had a right to receive double of the amount of part of sale consideration. The plaintiff continues to aver that in the month of October, he fell critically ill and in his examination, it was discovered that both his kidneys had been damaged and was advised to undergo transplant surgery. Consequently, on 7.2.2008, he had undergone surgery in silver Oak Hospital, Mohali, Chandigarh. A period of 3 to 4 months was consumed by the plaintiff to recuperate. He avers that on his returning to normal life, he requested defendant No. 1 in the month of May, 2008 to execute the sale deed in his favour and to receive the balance amount of sale consideration. A period of 3 to 4 months was consumed by the plaintiff to recuperate. He avers that on his returning to normal life, he requested defendant No. 1 in the month of May, 2008 to execute the sale deed in his favour and to receive the balance amount of sale consideration. However, the response of defendant No. 1 to the overtures of the plaintiff was not favourable. The plaintiff kept on persuading the defendant No. 1 to honour her commitment and perform her part of the contract, however, to no avail. The unwillingness of defendant No. 1 to perform her part of contract had led the plaintiff to issue a legal notice of 19.8.2006 upon her. However, inadvertently the name of one Smt. Neelam Kapoor was mentioned in place of the name of the plaintiff. The inadvertent issuance of notice on behalf of Neelam Kapoor on the part of the counsel, squealed a reply of defendant No. 1 through her counsel of the aforesaid having not entered into any agreement to sell with the plaintiff. In sequel, the counsel for the plaintiff on detecting that inadvertent mentioning of the name of Neelam Kapoor in the notice dispatched, a rejoinder-cum-reminder, on 9.7.2008, to defendant No. 1 and to her counsel, which rejoinder-cum-reminder was accompanied by a notice rectifying the mistake in the name of the plaintiff, which had occurred in the earlier notice of 19.6.2008. Through the said rejoinder-cum-reminder, dated 9.7.2008, the plaintiff was again called upon defendant No. 1 to perform her part of obligation under agreement to sell. The plaintiff avers that defendant No. 1 had executed a general power of attorney bearing registration No. 121, dated 17.6.2008 in favour of one Sukh Dev Chauhan alias Raj Chauhan, which was registered before the Sub Registrar, Theog. In sequel, thereto, defendant No. 3, the general power attorney holder of defendant No. 1 sold the land measuring 0-72-03 hectare out of the suit land measuring 0-74-12 hectare to his brother Sh. Chander Chauhan for Rs. 10,00,000/- under sale deed dated 25.7.2008, bearing registration No. 1052/08, registered before the Sub-Registrar (Rural), Shimla. In sequel, thereto, defendant No. 3, the general power attorney holder of defendant No. 1 sold the land measuring 0-72-03 hectare out of the suit land measuring 0-74-12 hectare to his brother Sh. Chander Chauhan for Rs. 10,00,000/- under sale deed dated 25.7.2008, bearing registration No. 1052/08, registered before the Sub-Registrar (Rural), Shimla. The plaintiff avers that defendant No. 2 is not a bonafide transferee for value and has not acted in good faith while making the payment, inasmuch, as he and defendant No. 3 were having actual as well as constructive notice of the existence of earlier sale agreement dated 22.12.2006 executed by defendant No. 1 in favour of the plaintiff besides the legal notice and rejoinder-cum-reminder stood already served upon defendant No. 1, prior to the registration of the sale deed. The plaintiff avers that defendant No. 3 being the attorney of defendant No. 1 will be presumed to have acknowledged service of notice served upon his principal and whereas the defendant No. 2 is none other than his real brother. Consequently, it is averred that defendant No. 2 being the subsequent purchaser having knowledge of the earlier agreement to sell, stands in a fiduciary relation with the plaintiff, as such, he is bound to keep the suit land for and on behalf of the plaintiff and is further bound to protect his interest in his capacity of a trustee. The plaintiff continues to aver that sale transaction by defendant No. 3 in favour of defendant No. 2 is otherwise highly unusual as the land was sold for a much lower sale consideration of Rs. 10,00,000/- as against the sale consideration of Rs. 45,00,000/- agreed to be paid by the plaintiff to defendant No. 1 as per the agreement to sell, besides the average value of the land has been shown to be Rs. 82,80,000/- in the sale deed on which stamp duty of Rs. 4,14,000/- was paid. The plaintiff avers that the sale deed was executed just to defeat his legitimate rights with active and mutual connivance on the part of the defendants. 82,80,000/- in the sale deed on which stamp duty of Rs. 4,14,000/- was paid. The plaintiff avers that the sale deed was executed just to defeat his legitimate rights with active and mutual connivance on the part of the defendants. The plaintiff further avers that defendant No. 2 being purchaser of the suit property, acquired title from defendant No. 1 subsequent to the earlier contract, is, therefore, bound to execute the sale deed in favour of the plaintiff in respect of the land which was transferred to him under the sale deed and defendant No. 1 is bound to transfer and execute the sale deed in favour of the plaintiff in respect of the remaining land left with her. It is further averred by the plaintiff that he has always been and is still ready and willing to perform his part of the contract and that without prejudice to above and in alternative, he submitted that since defendant No. 1 has failed to perform her part of the agreement and violated the terms and conditions of the same as she never offered herself for the execution of the sale deed, as a consequence he is entitled to and has right to receive double of the amount of Rs. 3,00,000/- paid at the time of the execution of the agreement to defendant No. 1, accordingly, the plaintiff claims a sum of Rs. 6,00,000/- on account of refund of advance paid including compensation along with interest at the rate of 12% per annum on the above amount on equitable grounds. The plaintiff prays for a decree for specific performance directing the defendants No. 1 and 2 to execute a sale deed in respect of their share and title in the suit land comprising Khata/Khatauni No. 45/104, Khasra No. 43/1, 64, 26/1, 130 kita 4, measuring 0-17-47 hectare, 48/65th share which comes to 0-38-24 hectare out of total land measuring 0-51-79 hectare comprising Khata Khatauni No. 49/115, khasra No. 44, 21/25th share which comes to 0-15-77 hectare out of total land measuring 0-18-78 hectare comprising khata khatauni No. 50/116, khasra No. 45, 15/144th share which comes to 0-02-64 hectare out of total land measuring 00-25-43 hectare comprising khata Khatauni no. 55/121 to 123, khasra No. 744, 48, 55, 53, 54, 57, 58, kita 7, situated at Mauja Chamiyana, Tehsil and District Shimla, H.P., the total suit land thus comes to 0-74-12 hectare or say about 9 bighas 7 biswas and in alternative the plaintiff prays for a decree for the refund of advance paid with compensation thereby directing the defendants No. 1 and 2 to pay a sum of Rs. 6,00,000/- to plaintiff alongwith interest @12% per annum from the date of suit till payment. 2. The suit was contested by the defendants and defendants No. 1 and 3 have filed separate written statement, whereas defendant No. 2 adopted the written statement filed by defendant No. 3. 3. Defendant No. 1 in her written statement has taken the preliminary objections inter alia: maintainability, estopple, the plaintiff being not entitled to the discretionary and equitable relief under Specific Relief Act and that the plaint, as filed lacks material correct and better particulars. On merits, the execution of the agreement to sell dated 22.12.2006 entered into inter se the plaintiff and defendant No. 1 is admitted. It is also admitted by defendant No. 1 that the suit land was agreed to be sold for a sum of Rs. 45,00,000/- and a sum of Rs. 3,00,000/- was paid to her at the time of execution of the agreement to sell and the remaining sale consideration of Rs. 42,00,000/- was to be paid by the plaintiff to her within three months from the date of execution of the agreement to sell. It is submitted by defendant No. 1 that it was agreed upon between the parties to the agreement for sale that the plaintiff would pay balance amount of sale consideration of Rs. 42,00,000/- within three months w.e.f. 22.12.2006 and upon payment of balance sale consideration, the sale deed was to be executed. However, the plaintiff failed to come forward for making payment of balance amount of sale consideration of Rs. 42,00,000/-, as also, failed to take steps for execution and registration of the sale deed within the stipulated period of three months from the date of execution of the agreement to sell. It is further submitted that at the first instance the plaintiff was required to pay balance amount of sale consideration of Rs. 42,00,000/- on or before 21.3.2007 and thereafter, the sale deed could be prepared and executed. It is further submitted that at the first instance the plaintiff was required to pay balance amount of sale consideration of Rs. 42,00,000/- on or before 21.3.2007 and thereafter, the sale deed could be prepared and executed. However, the plaintiff despite having sufficient opportunity to do the needful, failed to perform his part of the contract in pursuance to the terms and conditions as contained in the agreement to sell dated 22.12.2006. Defendant No. 1 was throughout ready and willing to perform her part of contract. It is also submitted that she could have made herself available for execution of the sale deed in favour of the plaintiff, in case the plaintiff paid her balance amount of sale consideration of Rs. 42,00,000/- on or before 21.3.2007. The plaintiff was required to purchase stamps for the execution of the sale deed and all other relevant documents, since, the plaintiff was not interested to perform his part of the contract, therefore, neither he paid balance amount of sale consideration to her nor he purchased stamps. She submits that the fact of the matter is that after 22.12.2007, within stipulated period of three months, he did not take any steps to perform his part of the contract. It is also submitted that the replying defendant did not back out from her bargain nor she failed to execute the sale deed. She was throughout ready and willing to perform her part of the contract. It is submitted that the replying defendant was absolute owner in possession of the land as agreed to be sold by her and it is for this reason that she has not disputed contents of the agreement to sell. The plaintiff has been averred by defendant No. 1 to be bound to have paid the balance consideration of Rs. 42,00,00/- on or before 21.3.2007 and since he failed to do the needful, therefore, claim as set up by him merit rejection on account of his own conduct, lapses and omissions. After 21.3.2007, defendant No. 1 was not bound to sell land in question to the plaintiff. Issuance of legal notice, as also, rejoinder-cum-reminder is not denied. It has been averred that the notice was duly replied to by defendant No. 1. After 21.3.2007, defendant No. 1 was not bound to sell land in question to the plaintiff. Issuance of legal notice, as also, rejoinder-cum-reminder is not denied. It has been averred that the notice was duly replied to by defendant No. 1. It is submitted that the replying defendant was in dire need of money and when the plaintiff failed to perform his part of the contract, despite sufficient opportunity, therefore, in order to arrange money in connection with her requirements, she executed a power of attorney, in favour of Shri Sukh Dev Chauhan on 17.6.2008 authorizing him to sell land in question. Ultimately the land in question as involved in this suit has already been sold on 25.7.2008. It is further submitted that due to default on the part of the plaintiff to pay balance sale consideration of Rs. 42,00,000/- by 21.3.2007, she had to pay huge amount by way of interest and plaintiff was not at all interested to perform his part of the contract, as such, she was compelled to sell the suit land. It is further submitted that though the sale deed in question had been executed with respect to suit land on dated 25.7.2008, yet besides this, the purchaser i.e. defendant No. 2 had agreed to provide a flat worth Rs. 50,00,000/- to defendant No. 1 and therefore, claim as set up by plaintiff that she had sold the land in question only for a sum of Rs. 10,00,000/- is not correct. The alienation of one flat to the replying defendant was part and parcel of sale deed dated 25.7.2008. It is also submitted that the plaintiff failed to perform his part of the contract within the stipulated period and time was the essence of the contract executed between the plaintiff and defendant No. 1. It is also denied that the plaintiff is entitled to refund of the advance amount of Rs. 3,00,000/- since the said amount stands forfeited as the plaintiff has failed to perform his part of the contract. 4. Defendant No. 3 in his written statement has taken the preliminary objections inter alia: maintainability, estoppel, plaintiff being not entitled to the discretionary and equitable relief under Specific Relief, suit is not property valued for the purpose of court fee, bad on account of joinder and non-joinder of necessary parties and jurisdiction and that the plaint as filed lacks material correct and better particulars. On merits, the execution of agreement to sell dated 22.12.2006 entered into interest the plaintiff and defendant No. 1 as also the terms and conditions as contained therein have been denied for want of knowledge. However, it is submitted that the plaintiff has set up his claim initially on the basis of agreement for sale dated 22.12.2006 but he himself failed to perform his part of the contract and therefore, he is not entitled to the relief as claimed. It is further submitted that the plaintiff was bound to pay Rs. 42 lacs before 21.3.2007 to defendant No. 1. However, he failed to perform his part of the contract, as such, after 21.3.2007, defendant No. 1 was not bound to sell land in question to the plaintiff. Issuance of notice followed by rejoinder-cum-reminder by the plaintiff is admitted. It is also submitted that the notice was duly replied to. It is submitted that the agreement to sell entered into inter se plaintiff and defendant No. 1 had come to an end on 22.3.2007. Execution of the general power of attorney by defendant No. 1 in favour of replying defendant No. 3 has been admitted and it is submitted that the land in question was sold on 25.7.2008. However, defendant No. 2 had agreed to provide a flat worth Rs. 50 lacs to defendant No. 1 and therefore, the claim as set up by the plaintiff that she had sold the land in question only for sum of Rs. 10 lacs is not correct. The alienation of one flat to defendant No. 1 by defendant No. 2 was part and parcel of the sale deed dated 25.7.2008. Defendant No. 2 and 3 have been averred to have no liability to pay any amount to the plaintiff. Defendant No. 2 has been averred to be a bonafide purchaser and he acted in good faith. Defendants No. 2 and 3 have been averred to be having no knowledge about the agreement to sell executed inter se the plaintiff and defendant No. 1. 5. The plaintiff filed replications to the written statements of the defendants, wherein, he denied the contents of the written statements and re-affirmed and re-asserted the averments made in the plaint. 6. On the pleadings of the parties, the following issues were framed on 30.12.2010:- 1. Whether the plaintiff is entitled for decree of Specific Performance of Contract dated 22.12.2006? 5. The plaintiff filed replications to the written statements of the defendants, wherein, he denied the contents of the written statements and re-affirmed and re-asserted the averments made in the plaint. 6. On the pleadings of the parties, the following issues were framed on 30.12.2010:- 1. Whether the plaintiff is entitled for decree of Specific Performance of Contract dated 22.12.2006? OPP 2. Whether in alternative, plaintiff is entitled for Refund of Double the amount of the earnest money amount of Rs. 6,00,000/-? OPP 3. Whether time was essence of the contract and as per clause No. 6 of the Agreement the Purchaser/Plaintiff was required to make entire payment within three months from 22.12.2006 and the same condition was not performed by the plaintiff? OPD 4. Whether defendant No. 2 is a bonafide purchaser and in the absence of any challenge to the sale deed dated 25.7.2008, no relief can be claimed against him? OPD 5. Whether suit is not maintainable in its present form? OPD 6. Whether plaintiff is estopped to file the present suit on account of its own acts, deeds and conduct? OPD 7. Relief. 7. For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as under:- Reasons for the findings. Issue No. 5:- 8. The parties at contest do not deny or controvert the factum of valid and due execution of the agreement to sell the suit property comprised in Ex. PW1/A, entered into inter se the plaintiff and defendant No. 1. 9. In proof of the averments as comprised in the plaintiff, the plaintiff has stepped into the witness box as PW-1 and in his deposition comprised in his examination-in-chief has concerted to substantiate the averments qua the lis inter se him and the defendants comprised in the plaint. He was subjected to a rigorous cross-examination by the learned counsel appearing for the defendants, wherein, he conceded to the fact of the father of defendant No. 1 having mediated inter se him and defendant No. 1 to clinch Ex. PW1/A. During the course of his cross-examination, he has admitted the entire contents of Ex. PW1/A. He has also admitted the suggestion put to him of the various clauses of the agreement being executable within three months. Though, he repulsed the suggestion put to him by the learned counsel appearing for the defendants of his not possessing the balance amount of Rs. PW1/A. He has also admitted the suggestion put to him of the various clauses of the agreement being executable within three months. Though, he repulsed the suggestion put to him by the learned counsel appearing for the defendants of his not possessing the balance amount of Rs. 42,00,000/-, yet when he deposes that he maintains the records of all the transactions pertaining to the sale and purchase of the land and flats, hence, when he omitted, during the course of his cross-examination, to produce the records divulging the fact of his having the capacity to pay balance sale consideration of Rs. 42 lacs to defendant No. 1 within three months from the date of execution of agreement to sell, it is to be held that at the apposite stage, he was financially disempowered to carry out the bargain as recited in Ex. PW1/A. He concedes to the fact that he omitted to ever issue a notice to the defendants within a period of three months w.e.f. 22.12.2006. He also admits the suggestion put to him to be correct that in case the remaining amount of Rs. 42 lacs was not paid, the agreement was deemed to have been cancelled in consonance with the recital in Ex. PW1/A. Lastly, in his cross-examination he conceded to the fact that the defendants were demanding the remaining amount of Rs. 42 lacs, yet he had been delaying the execution/registration of the registered deed of conveyance as certain codal formalities including preparation of the documents was required to be finalized. However, he concedes to the fact that for the execution of Ex. PW1/A, only copy of jamabandi was required. 10. PW-2 Smt. Leela Sandal brought the summoned record. He proved on record copy of sale deed Ex. PW2/A, of 25.7.2008 which has been stated by her to be the true and correct copy of the original brought by her in the Court. 11. DW-1 Shri Bhoop Ram, deposes that defendant No. 1 is his daughter. She has been deposed to have executed a special power of attorney in his favour. The special power of attorney has been deposed by this witness to be Ex. DW1/A. He deposes that in the year 2006, defendant No. 1 was constructing a house at Chamiana and that her husband is unemployed. She has been deposed to have executed a special power of attorney in his favour. The special power of attorney has been deposed by this witness to be Ex. DW1/A. He deposes that in the year 2006, defendant No. 1 was constructing a house at Chamiana and that her husband is unemployed. At the time of construction of the house, defendant No. 1 was in need of money, as such, she decided to sell the suit land. One Sh. Narinder Thakur, the friend of the plaintiff has been deposed to have introduced the plaintiff with him. He had been told that the plaintiff intends to purchase the land. He further deposes that accordingly a deal for sale of the suit land by defendant No. 1 to the plaintiff for a sum of Rs. 45,00,000/- was struck and in pursuance thereto an agreement to sell of 22.12.2006 of comprised in Ex. PW1/A was entered into inter se them. The agreement to sell, Ex. PW1/A has been deposed by this witness to be bearing his signatures as also the signatures of Narinder Thakur, as marginal witnesses to it. As sum of Rs. 3,00,000/- has been deposed by this witness to have been paid to defendant No. 1 by the plaintiff as earnest money. The remaining amount of Rs. 42,00,000/- has been deposed by this witness to be agreed to be paid within three months from the date of the agreement by the plaintiff to defendant No. 1. He further deposes that the plaintiff did not make payment of the remaining sale consideration and instead kept on lingering on the matter on one pretext or the other. Resultantly, the construction of the house of defendant No. 1 was stalled. He deposes that Sh. Narinder Thakur had been asking the plaintiff repeatedly, both orally and on telephone, that he should come forward to get the sale deed executed on payment of the remaining sale consideration of Rs. 42,00,000/- but he declined to purchase the land. He further deposes that, as such, defendant No. 1 was compelled to negotiate a deal for sale of the suit land with defendant No. 3. In his cross-examination, he conceded to the fact that neither he nor defendant No. 1 had asked the plaintiff in writing, calling upon him to come forward for execution of the sale deed in pursuance to agreement Ex. In his cross-examination, he conceded to the fact that neither he nor defendant No. 1 had asked the plaintiff in writing, calling upon him to come forward for execution of the sale deed in pursuance to agreement Ex. PW1/A, on payment of the remainder sale consideration. He admits the suggestion put to him that the sale deed Ex. PW1/J, dated 25.7.2008 was executed by defendant No. 1 through her power of attorney defendant No. 3 in favour of defendant No. 2 after receipt of corrigendum of notice of 19.6.2008. He also admits the suggestion that defendants No. 2 and 3 were all through in the knowledge that defendant No. 1 had already entered into an agreement of sale in respect to the suit land in favour of the plaintiff. It is also admitted by him that no document has been brought on record on behalf of defendant No. 1 to show that either she was constructing a house in the year 2006 or she was short of funds to carry the construction. 12. The learned counsel appearing for the plaintiff has relied upon a judgment of the Hon'ble Apex Court reported in Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera and Another, (1999) 3 SCC 457 and a judgment of this High Court reported in Jiwan Singh and Others Vs. Rajinder Sharma and Others , to canvass a submission before this Court that the defence comprised in the written statement of defendant No. 1 to his claim, is discardable as defendant No. 1 has omitted to step into the witness box, rather, with the special power of attorney of the defendant No. 1, the father of defendant No. 1 having stepped into the witness box, in proof of the contentions and repulsions to the averments in the plaint, renders his testimony to be discardable with the consequential effect of the defence of defendant No. 1 being construable to be torn to the smithereens. In sequel, it is contended that as such the suit be decreed. However, at the outset and at the inception, the said contention has no vigour, inasmuch, as, when it emanates on a perusal of the testimony of the plaintiff comprised in his cross-examination of the father of defendant No. 1 having mediated and negotiated to clinch the deal inter se defendant No. 1 and the plaintiff. However, at the outset and at the inception, the said contention has no vigour, inasmuch, as, when it emanates on a perusal of the testimony of the plaintiff comprised in his cross-examination of the father of defendant No. 1 having mediated and negotiated to clinch the deal inter se defendant No. 1 and the plaintiff. In sequel, when the father of defendant No. 1 is the holder of the special power of attorney executed in his favour by defendant No. 1 comprised, in, Ex. DW1/A, for the purposes recited therein empowering him to carry out all acts, deeds and things, in, respect of civil suit No. 134 of 2008, titled as Arun Chauhan vs. Geeta Thakur and others instituted in the High Court. Now, given the plentitude of the empowerment conferred upon him under Ex. DW1/A, in aftermath given the fact that with the plaintiff conceding to the fact of the special power of attorney of defendant No. 1, under deed of power of attorney comprised, in, Ex. PW1/A, mediated and negotiated to clinch the deal inter se the plaintiff and defendant No. 1, which led to the finalization of preparation of Ex. PW1/A, inter se them, hence, is to be concluded to be aware of all the niceties, intricacies, as well as, factual details of the entire deal which was struck inter se the plaintiff and defendant No. 1. As a concomitant, he is to be inferred to be empowered with all the necessary factual data to depose as a witness to prove all the contentions as raised by defendant No. 1 in her written statement. A further inference which ensues is that he was a competent witness, as a natural corollary, when decisions rendered by Hon'ble Courts, permit the Special Power of Attorney or the General Power of Attorney of any party to the lis to depose when the attorney holder is personally aware of the facts of the case which for the reasons aforesaid, DW-1, the special power of attorney holder of defendant No. 1, was. Therefore, with the Courts of law, in, various decisions in exception to the general principle, of attorney holders being forbidden to depose as witness, permit the attorney holders of the parties to the lis to depose qua facts comprised either in the plaint or in the written statement, when they are personally aware of the facts qua which they proceed to depose as witness. As such, when the exception to the general principle, of the attorney holder being interdicted or forbidden to depose qua the averments either in the plaint or in the written statement, exits inasmuch, as, where the attorney holder is personally acquainted or aware of the niceties and intricacies of the details of the averments in the plaint or the contentions in the written statements. Consequently, when the power of attorney holder of defendant No. 1 was so empowered for the reasons aforesaid, to depose as a witness, in proof of the contentions raised in the written statement of defendant No. 1, as a concomitant, his testimony cannot be ousted nor hence, the contention of the learned counsel appearing for the plaintiff can be accepted that the recording of his deposition being impermissible, the defence of defendant No. 1 cannot be taken on record. Nor, hence, on the aforesaid score alone the suit of the plaintiff can be decreed. 13. Before proceeding to adjudicate upon the principal issues over which the parties are at contest, it is also imperative to advert to the fact that the plaintiff has not prayed for the relief of cancellation of the sale deed entered into inter se defendant No. 2 and defendant No. 1 through her general power of attorney, defendant No. 3. 13. Before proceeding to adjudicate upon the principal issues over which the parties are at contest, it is also imperative to advert to the fact that the plaintiff has not prayed for the relief of cancellation of the sale deed entered into inter se defendant No. 2 and defendant No. 1 through her general power of attorney, defendant No. 3. However, the omission on the part of the plaintiff to seek relief of cancellation of the sale deed entered into inter se defendant No. 1 and defendant No. 2, cannot, render the suit to be not maintainable, inasmuch, as it has been mandated in a judgment of this High Court, reported, in, Rajinder Singh versus Sushil Kumar and others, 2007 (2) Civil Court Cases, 397 (H.P.) that where the alienation of the suit property subsequent to the execution of the agreement to sell entered into inter se the vendor and the vendee, takes place, it per se cannot render the suit to be not maintainable, in the face of any omission on the part of the vendee/plaintiff, to, claim relief of cancellation of the sale deed executed with any person other than the vendee/plaintiff subsequent to the execution of an agreement to sell. In consequence, the omission on the part of the plaintiff to claim relief of cancellation of the sale deed entered into inter se defendant No. 1 through defendant No. 3 and defendant No. 2, subsequent to execution of the agreement to sell entered into inter se her with the plaintiff, would not render the suit for specific performance of contract, as, preferred by the plaintiff against defendant No. 1, to be not maintainable. More so, in case a decree for specific performance of contract, is, rendered in favour of the plaintiff/vendor, then when its rendition has been held in the aforesaid judgment to be executable against the subsequent transferee even without the plaintiff seeking the relief of cancellation of the subsequent sale deed. Hence, it is held that the suit of the plaintiff is maintainable. Accordingly, issue No. 5 is answered in favour of the plaintiff and against the defendants. Issues No. 1, 2, 3 and 6. 14. All these issues are taken up together for discussion as these are interconnected and interlinked with each other and can be disposed of by single discussion. 15. Accordingly, issue No. 5 is answered in favour of the plaintiff and against the defendants. Issues No. 1, 2, 3 and 6. 14. All these issues are taken up together for discussion as these are interconnected and interlinked with each other and can be disposed of by single discussion. 15. The learned counsel appearing for the parties at contest, contrarily contended that the recital in Ex. PW1/A of the vendor and vendee being obliged, within three months from the date of execution of the agreement to sell, to execute a registered deed of conveyance qua the suit land in favour of the plaintiff/vendee, comprises a covenant or a stipulation conveying that time was the essence of the contract. 16. Before proceeding to test the sinew of the rival contentions addressed, on the aforesaid fulcrum of the controversy, inter se the parties at lis, it is necessary to advert to certain pre-eminent facts, whose disclosure herein would facilitate this Court to further conclude whether, as a matter of fact, time was the essence of the contract, as also, to conclude whether the equitable discretionary relief of specific performance of the agreement to sell comprised in Ex. PW1/A is or not affordable in favour of the plaintiff/vendee. A primary fact which devolves upon the factum whether the covenant/recital existing in Ex. PW1/A portrays that time of three months enjoined therein, from the date of its execution, for the execution of inter se the parties at contest, a registered deed of conveyance qua the suit land/property, was the essence of the contract, is the admission comprised in the cross-examination of the plaintiff, wherein, he has unequivocally, plain speakingly with candor admitted the suggestion put to him by the learned counsel appearing for the defendants that the covenant/recitals in Ex. PW1/A were imperatively executable within three months at the instance of the contesting parties. The candor with which the plaintiff in his cross-examination has conceded to the fact of the covenant/recital in Ex. PW1/A were imperatively executable within three months at the instance of the contesting parties. The candor with which the plaintiff in his cross-examination has conceded to the fact of the covenant/recital in Ex. PW1/A of the registered deed of conveyance qua the suit property, being enjoined to be executed inter se the parties at contest within three months from the date of execution of agreement to sell, constrains no other than the clinching conclusion that, it, was the conscious intention of both the parties, that the registered deed of conveyance qua the suit property be executed imperatively within three months from the date of execution of agreement to sell and that the said covenant/recital was binding upon both the parties at contest, hence, both the parties at contest were conjointly obliged and enjoined to obey it. As a sequel, when any party omitted to honour his/her part of the contract stipulated in Ex. PW1/A then the obvious conclusion of such a party being unready or unprepared to fulfill her/his part of contract/bargain stipulated therein is to follow or to ensue with the further deduction of denial of equitable relief of specific performance to him/her. However, when the plaintiff has also conceded in his cross-examination that he omitted to serve notice upon defendant No. 1 within three months commencing from 22.12.2006, besides his also admitting that within three months from the date of execution of Ex. PW1/A, the defendant No. 1 was demanding the remaining amount of Rs. 42,00,000/- which the plaintiff was enjoined to defray to the vendor/defendant No. 1 as a precondition for his calling upon defendant No. 1 to execute registered deed of conveyance qua the suit property in his favour by the latter, per se ipso facto is a loud communication of the fact, especially when it is not voiced by DW-1 in his cross-examination that within the covenanted/stipulated period in Ex. PW1/A for the execution of a registered deed of conveyance by the vendor/defendant No. 1 in favour of the vendee/plaintiff, the defendant No. 1 having overtly displayed, disclosed or rendered any communications to the plaintiff bespeaking the fact of her un-readiness or unwillingness to perform her part of obligation comprised in Ex. PW1/A, the omission, aforesaid, constrain this Court to draw the following inferences:- (a) the plaintiff having procrastinatingly 19.6.2008, served notice upon defendant No. 1 or excessively beyond the period prescribed, in, Ex. PW1/A, the omission, aforesaid, constrain this Court to draw the following inferences:- (a) the plaintiff having procrastinatingly 19.6.2008, served notice upon defendant No. 1 or excessively beyond the period prescribed, in, Ex. PW1/A, qua the fulfillment of mutual reciprocal covenants inter se the parties at contest, renders it to be of no avail and of no consequence nor it lends any protective cover, to the plaintiff for boosting any impetus to any inference that, hence, the time for institution of the suit for specific performance, is, within limitation. Even otherwise, the said argument, is, devoid of vigour and is succumbable to an inference available to be drawn by this Court on the anvil of the admission of the plaintiff in his cross-examination, in consonance with the covenant/recitals in Ex. PW1/A, of the time prescribed in Ex. PW1/A, inasmuch, as a period of three months from the date of execution of Ex. PW1/A for execution of a registered deed of conveyance inter se defendant No. 1 and the plaintiff qua the suit property, being the essence of the contract of agreement to sell; (b) even otherwise, the admission in the cross-examination of the plaintiff of his maintaining accounts qua his profit and loss of sale and purchase of the land and flats, yet his having omitted to produce the records to display the fact of his being financially empowered to, within the prescribed period of three months for seeking execution of a registered sale deed in his favour by the vendor/defendant No. 1, defray the remaining sale consideration to the defendant No. 1 as a portrayal of his readiness to honour his commitment entwined with the fact that with his conceding to the factum of defendant No. 1 demanding the defrayment to her of the remaining amount of sale consideration, yet his omitting to complete the transaction or to get the registered deed of conveyance qua the suit property executed in his favour by the vendor/defendant No. 1, on the pretext of certain codal formalities necessitating finalization, constrains the inference of the readiness of defendant No. 1 to honour her part of the commitment in Ex. PW1/A, besides when the pretext rendered by the plaintiff in his cross-examination for prolonging the execution of a registered deed of conveyance qua the suit property, is wholly invented, inasmuch, as it has not been depicted that any codal formalities except appending of the jamabandi qua the suit property with the sale deed, necessitated completion and finalization and when it was easily procurable for completion of the commitment, inter se the parties at contest, enjoined in Ex. PW1/A. Consequently, with the plaintiff having invented a flimsy and specious pretext for prolonging or procrastinating the execution of a registered deed of conveyance in his favour by defendant No. 1, as also, when it has been inferred on the score of a disclosure made in the cross-examination of the plaintiff of defendant No. 1 demanding money from him and its, as such, conveying that, hence, she was ready and willing to perform her part of the bargain, then the effect of the conclusion also drawn hereinabove, for the reasons recorded hereinabove of the plaintiff pretextually procrastinating the execution of a registered deed of conveyance qua the suit property in his favour by defendant No. 1, besides his being at the apposite stage financially disempowered to fulfill his part of the commitment comprised in Ex. PW1/A, renders no conclusion other than that of the plaintiff being while, hence, displaying his unreadiness and unwillingness within the time stipulated in Ex. PW1/A, to perform his part of the commitment enshrined therein, is wholly disentitled to claim the relief of specific performance of contract. 17. As a corollary, for reiteration, then given the un-readiness of the plaintiff to perform his part of bargain comprised and arising from deductions and inferences drawn hereinabove depicting his lack of financial empowerment at the apposite stage, rather was the palpable impediment for concluding the commitments or consummating the bargain arrived at inter se the parties, comprised in Ex. PW1/A. 18. Before proceeding to conclude that the covenant/recital inter se the parties at contest comprised in Ex. PW1/A qua the factum of sale deed inter se the parties at contest being enjoined therein to be consummated or being concludable within three months from the date of execution Ex. PW1/A. 18. Before proceeding to conclude that the covenant/recital inter se the parties at contest comprised in Ex. PW1/A qua the factum of sale deed inter se the parties at contest being enjoined therein to be consummated or being concludable within three months from the date of execution Ex. PW1/A, it being the essence of the contract, it is necessary to convey that it gains aggravated strength from the admission to the said extent existing in the deposition comprised in the cross-examination of the plaintiff. The impact of the admission comprised in the cross-examination of the plaintiff conveying the fact that the recitals/covenants in Ex. PW1/A were executable within three months from the date of execution of Ex. PW1/A is that it reinforcingly articulates that the parties at the time of execution of agreement to sell, Ex. PW1/A were consciously awakened to the factum of theirs then intending to complete the bargain within three months, whereas, when it was not concluded nor was concerted to be concluded by the plaintiff within the aforesaid period, rather he portrayed for the reasons aforesaid his unreadiness and unwillingness to within the aforesaid time conclude it especially when time was essence of the contract, he cannot concert or canvass before this Court that the recitals/covenants comprised in Ex. PW1/A are even at this stage enforceable by him. Moreover, it is also imperative to advert to the legal position as culled out in the judgment reported in Mrs. Saradamani Kandappan Vs. Mrs. S. Rajalakshmi and Others, (2011) 12 SCC 18 , for determining whether the contract inter se the vendor and the vendee enshrines any covenant qua the factum whether any time prescribed therein within which the bargain/commitment was to be fulfilled by each of the party, was the essence of the contract, which position is comprised in paragraphs No. 23, 24, 25, 26 and 43 of the aforesaid judgment, which paragraphs are extracted hereinafter:- "23. The above section deals with the effect of failure to perform at a fixed time, in contracts in which time is essential. The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract. 24. Relying upon the observation of this court in N. Srinivasa Vs. Kuttukaran Machine Tools Ltd., (2009) 5 SCC 182 that "in the contract relating to immovable property, time cannot be the essence of the contract", the appellant put forth the contention that in all contracts relating to sale of immovable property, time stipulated for performance, even if expressed to be the essence, has to be read as not being the essence of the contract and consequently the contract does not become voidable by the failure to perform before the specified time. A careful reading of the said decision would show that the sentence relied on (occurring in para 31) apparently was not the statement of legal position, but a conclusion on facts regarding the contract that was being considered by the court in that case, with reference to its terms. In fact the legal position is differently stated in para 27 of the said decision, thus: (SCC 188) "27. In a contract for sale of immoveable property, normally it is presumed that time is not the essence of the contract. Even if there is an express stipulation to that effect, the said presumption can be rebutted. It is well settled that to find out whether time was the essence of the contract. It is better to refer to the terms and conditions of the contract itself." 25. Even if there is an express stipulation to that effect, the said presumption can be rebutted. It is well settled that to find out whether time was the essence of the contract. It is better to refer to the terms and conditions of the contract itself." 25. The legal position is clear from the decision of a Constitution Bench of this court in Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., (1993) 1 SCC 519 , wherein this court outlined the principle thus: (SCC p. 525, para 19) "19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language." 26. Relying upon the earlier decisions of this court in Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, AIR 1967 SC 868 and Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another, (1977) 2 SCC 539 , this Court further held that 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. Where the contract relates to sale of immovable property, it will normally be presumed that the time is not the essence of the contract. Thereafter this court held that even if time is not the essence of the contract, the Court may infer that it is to be performed in a reasonable time: (i) from the express terms of the contract; (ii) from the nature of the property and (iii) from the surrounding circumstances as for example, the object of making the contract. Thereafter this court held that even if time is not the essence of the contract, the Court may infer that it is to be performed in a reasonable time: (i) from the express terms of the contract; (ii) from the nature of the property and (iii) from the surrounding circumstances as for example, the object of making the contract. The intention to treat time as the essence of the contract may however be evidenced by circumstances which are sufficiently strong to displace the normal presumption that time is not the essence in contract for sale of land. 43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam and Others Vs. Vairavan, (1997) 3 SCC 1 : (i) Courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored. (ii) Courts will apply greater scrutiny and strictness when considering whether the purchaser was 'ready and willing' to perform his part of the contract. (iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also 'frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser." 19. In trite the ratio which ensues on a reading of the hereinabove extracted paragraphs of the judgment for rendering a determination whether time is the essence of the contract or not is, whether the recitals and covenants comprised in the agreement to sell i.e. Ex. PW1/A, divulge a specific, ascertained time within which the bargain or commitments arrived at inter se the parties at contest, was to be concluded or consummated. PW1/A, divulge a specific, ascertained time within which the bargain or commitments arrived at inter se the parties at contest, was to be concluded or consummated. In other words, it has been envisaged in the afore referred judgment, the relevant paragraphs of which are extracted hereinabove, that time is to be construed to be the essence of the contract, if, there is an explicit or unequivocal expression in the agreement to sell arrived at inter se parties of the covenants therein being compliable or concludable within a specified time. This Court for reasons hereinabove has applied the ratio or the underlying principles contemplated in the judgment referred to hereinabove, for rendering a conclusion, for the reasons referred hereinabove that Ex. PW1/A explicitly and expressly conveys that time is the essence of the contract/agreement arrived at inter se the parties at contest, inasmuch, as this Court inconsonance with the view espoused in the aforesaid judgment for rendering a determination whether time is to be concluded to be the essence of the contract, while it having been specifically explicitly voiced to be so in the agreement, has concluded that the said enshrined underlying principle has come to be accomplished and met with in the instant case arising from the specificity of time comprised in Ex. PW1/A of the bargain/commitments therein being concludable within a period of three months qua which inconsonance therewith an admission has also emanated in the deposition comprised in the cross-examination of the plaintiff, which lends fortifying impetus to a very firm conclusion to be formed by this Court that, hence, in tandem with the view espoused in the judgment of the Hon'ble Apex Court, in the extant contract sought to be specifically enforced, time has been unequivocally and categorically voiced therein to be its essence. In aftermath, it is has to be concluded that time was the essence of the contract entered into inter se the parties, as such, when the time period prescribed in Ex. PW1/A was not adhered to by the plaintiff, rather he omitted to perform his part of the bargain/commitment comprised in Ex. PW1/A, as such, the contract fails in its entirety. A further inference which concomitantly sprouts there from, is that the stipulation envisaged in Ex. PW1/A was not adhered to by the plaintiff, rather he omitted to perform his part of the bargain/commitment comprised in Ex. PW1/A, as such, the contract fails in its entirety. A further inference which concomitantly sprouts there from, is that the stipulation envisaged in Ex. PW1/A of the agreement to sell being then liable to be cancelled, as also, the entire amount of sale consideration/earnest money being forfeited to defendant No. 1, rather enforceable and is to be vindicated. Therefore this Court is constrained to decline the relief of specific performance as also relief of refund of the sale consideration to the plaintiff. Accordingly, issue No. 1, 2, 3 and 6 are answered in favour of the defendants and against the plaintiff. Issue No. 4. 20. In view of my findings hereinabove on issues No. 1 to 3 and 6, the issue regarding, whether defendant No. 2 is a bonafide purchaser, has become redundant. Relief. 21. The result of my discussion on issue Nos. 1 to 6 above is that the suit of the plaintiff fails and it is dismissed accordingly. Decree sheet be drawn accordingly.