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2014 DIGILAW 111 (PNJ)

Gurmail Singh v. Darshan Singh

2014-01-14

RAKESH KUMAR GARG

body2014
Judgment RAKESH KUMAR GARG, J. This is plaintiff’s second appeal challenging the judgment and decrees of the Courts below whereby he has been declined the decree of specific performance of the agreement to sell in question and instead his suit for recovery of earnest money has been decreed. According to the appellant, the respondent entered into an agreement to sell dated 30.11.1981 of land for a total sale consideration of Rs.105672p and received Rs.82632p from the plaintiff-appellant. The balance sale price was agreed to be received by the respondent at the time of execution and registration of the agreement. No time was fixed for execution of the sale deed for want of sale certificate. The plaintiff was put in actual physical possession of the suit land. He was always ready and willing to execute and register the sale deed, as per the agreement, on payment of balance sale price and also by incurring the registration expenses. The plaintiff-appellant issued a registered notice to the defendant-respondent requesting him to execute and register the sale deed but the respondent gave evasive reply. Plaintiff also remained present in the office of Sub Registrar, Tanda on 10.3.2003 for getting the sale deed executed from the defendant, but the defendant did not turn up. Thus, on accrual of cause of action, suit was filed. Upon notice, the defendant-respondent appeared and filed his written statement, raising various preliminary objections, denying the execution of the agreement and submitted that the alleged agreement was forged and fabricated. The delivery of possession was also denied. Thus, dismissal of the suit was prayed. Plaintiff filed replication denying the averments made in the written statement and reiterated the assertions made in the plaint. From the pleadings of the parties, following issues were framed: “1. Whether defendant executed agreement to sell dated 30.11.1981 in respect of suit land in favour of the plaintiff after receiving Rs.62832 as earnest money as alleged, if so its effect? OPP. 2. Whether plaintiffs always remained ready and willing to perform his part of the contract? OPP. 3. Whether the plaintiff put in physical possession of the suit property as alleged? OPP 4. Whether suit is not maintainable in the present form? OPD 5. Whether the plaintiff has got no locus standi and cause of action to file the present suit? OPD 6. Whether suit is within limitation? OPP 7. OPP. 3. Whether the plaintiff put in physical possession of the suit property as alleged? OPP 4. Whether suit is not maintainable in the present form? OPD 5. Whether the plaintiff has got no locus standi and cause of action to file the present suit? OPD 6. Whether suit is within limitation? OPP 7. Whether plaintiff is entitled to relief of specific performance of the agreement as prayed? OPP 8. Whether plaintiff is entitled to relief of permanent injunction? OPP 9. Relief.” After hearing learned counsel for the parties and considering the evidence on record, the trial Court decreed the suit for recovery of Rs.628.32p along with interest from the date of institution of the suit till actual realization. Aggrieved from the said judgment and decree, the plaintiff filed an appeal before the first Appellate Court which was dismissed. While dismissing the appeal, the lower Appellate Court observed as under: “The much disputed point in the present case is the question of readiness and willingness to perform the part of contract by the appellant-plaintiff. From Ex.P1 it has come to the surface that no time was fixed for the execution of the sale deed in pursuance of the agreement Ex.P1. From the recital made in Ex.P1 it becomes clear that the balance sale consideration was to be received at the time of the execution of the sale deed after the sale certificate by issuing the notice for the execution of the sale deed. In this regard it is observed that the agreement to sell Ex.P1 is dated 30.11.1981. The sale certificate in favour of the respondent-defendant is dated 18.5.1984, meaning thereby after approximately two years and five months. The appellant-plaintiff seems to had issued notice Ex.P3 upon the respondent-defendant calling him to execute the sale deed on 10.3.2003 in pursuance of the agreement to sell dated 30.11.1981. The notice was replied vide Ex.P4. From the notice Ex.P3 it has come to the surface that appellant-plaintiff could burden upon the respondent-defendant having agreed to execute the sale deed in favour of the appellant-plaintiff after the sale certificate. From Ex.P3, it has further come to the surface that appellant-plaintiff suo moto fixed the date for the execution of the sale deed on 10.3.2003 i.e. after 19 years. From Ex.P3, it has further come to the surface that appellant-plaintiff suo moto fixed the date for the execution of the sale deed on 10.3.2003 i.e. after 19 years. Ex.P6 is the affidavit which appellant-plaintiff got executed on 10.3.2003 in token of his getting marked the presence in the office of the Sub Registrar and respondent-defendant stated to had not come forward in the office of the Sub Registrar on 10.3.2003 and in such a fashion he tried to establish on the record that appellant-plaintiff remained ready and willing to perform his part of contract by coming present in the office of Sub Registrar on 10.3.2003 and respondent-defendant did not turn up and hence he was not ready and willing to perform his part of contract. Appellant-plaintiff as PW3 categorically disclosed during his cross examination that on 30.11.1981 the property in dispute was owned by Central Govt. which was auctioned in favour of the respondent-defendant and he also stated to had participated in those proceedings. The PW3 has not denied the factum with regard to the entering of the mutation in favour of the respondent-defendant on the basis of sale certificate. PW3 has gone to that extent by not knowing if the mutation was sanctioned 15 years back. PW3 further disclosed during his cross examination that soon after the auction he had been asking the respondent-defendant for getting the mutation sanctioned and then to execute the sale deed but when the respondent-defendant did not agree to it he got issued the notice through his counsel. PW3 has admitted that except the notice issued before the filing of the present suit, he did not get issue any other notice upon the respondent-defendant from which the intentions of appellant-plaintiff become clear that he remained a mute spectator for as long as approximately 22 years and one fine morning he risen from slumber and got issued a notice Ex.P3 calling upon the respondent-defendant to execute the sale deed on 10.3.2003 in his favour and tried to establish that it was the respondent-defendant whom did not come forward to execute the sale deed in his favour on 10.3.2003, hence he was not ready and willing to perform his part of the contract and appellant-plaintiff was ready and willing as he got marked his presence by way of affidavit Ex.P6. In the ruling Man Kaur (dead) by LRs versus Hartar Singh Sangha 2011 (1) RCR (Civil) 189 (SC), referred by the learned counsel for the respondent-defendant, the plaintiff is not only require to plead and prove the terms of the agreements but also to plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Even the Courts are held to adjudge whether the plaintiff is ready and willing to perform his part of contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. Therefore, in view of the ruling above referred by the learned counsel for the respondent-defendant it is clear that as required, the appellant-plaintiff has not pleaded and proved the readiness and willingness and the continuous readiness and willingness on the part of the plaintiff a condition precedent to the grant of relief of specific performance. The ruling Veeramaready versus Nagabhuhshana Rao versus Jyothula Ventakeswara Rao 2011 (1) Civil Court Cases 750 (A.P) (D.B) referred by the learned counsel for the appellant-plaintiff is not applicable in view of the ruling Man Kaur (Supra). The ruling Santa Singh versus Binder Singh and others 2006 (4) Civil Court Cases 608 (P&H) is not applicable to the facts of the present case. The ruling Jora Singh versus Lakhwinder Kumar and others 2011 (2) Civil Court Cases 113 (P&H) referred by learned counsel for the appellant-plaintiff is also not applicable to the facts of the present case. 16. The appellant-plaintiff has tried to fall the case for specific performance, within the period of limitation of three years by getting issued the notice upon the respondent-defendant calling upon him to execute the sale deed in his favour on 10.3.2003 whereas he kept mum for as along as 22 years after the execution of the agreement to sell dated 30.11.1981 Ex.P1. Though there was no time period stipulated in the agreement to sell Ex.P1, however there was a clear cut recital that after the issuance of the sale certificate, the sale deed was to be executed on receiving the balance sale consideration by issuing notice, if the respondent-defendant does not execute the sale deed. Though there was no time period stipulated in the agreement to sell Ex.P1, however there was a clear cut recital that after the issuance of the sale certificate, the sale deed was to be executed on receiving the balance sale consideration by issuing notice, if the respondent-defendant does not execute the sale deed. If as per the disclosure made by PW3 he had been approaching the respondent-defendant soon after the execution of the agreement to sell by getting the sale certificate and mutation in his favour, and if at any point of time the respondent-defendant refused to execute the sale deed, in that event he could have got issued the notice whereas the sale certificate seems to had been executed on 18.5.1984 and the mutation having been sanctioned on 1.8.1984. Rather PW3 disclosed that he never got issued notice upon the respondent-defendant except, the notice Ex.P3 before filing the present suit. Therefore, in the given set of facts and circumstances the ruling Yallappa versus Durgappa 2007(2) Civil Court Cases 266 (Karnataka), D.N. Raju and others versus Santosh Verma & Anr. 2007(3) Civil Court Cases 776 (A.P.) are not applicable. I have full regards to the rulings Ambadass Khanderrao Hagvane & Ors. Versus Shaikh Razak Shaikh Yakub and another 2009(1) Civil Court Cases 553 (Bombay), Mehar Singh versus Bhajan Singh 2010 (2) Civil Court Cases 493 (P&H), Laxman TatYaba Kankatbue and another versus Smt. Taramati Harishchandra Dhatrak 2010 (3) Civil Court Cases 828 (S.C.) referred by the learned counsel for the appellant-plaintiff that the decree for specific performance cannot be refused merely because there is escalation of prices, however such is not the situation in the present case as the appellant-plaintiff himself had remained mum for as long as 22 years. I have further full regards to the ruling Abhey Singh and others versus Ramesh Kumar & Ors. 2009 (3) Civil Court Cases 774 (P&H) i.e the normal rule to allow the specific performance, however, in the present case in hand the appellant-plaintiff himself has not established his continuous readiness and willingness pleaded and proved.” Still not satisfied, the plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal: “i) Whether impugned judgment/ decree is liable to be set aside for misreading / non-reading of facts established on record. ii) Whether the plaintiff is entitled to decree for specific performance of agreement to sell, when the court records a finding that agreement to sell is duly proved inspite of the defence taken by defendant that it is forged? iii) Whether when sale deed is to be executed on happening of a particular event in favour of vendor then in such a situation it is for the vendor to inform the vendee that such event has happened and get the sale deed executed or otherwise? iv) Whether the vendor/vendee is to be penalized for non-informing the other side regarding happening of a particular event i.e. recording of mutation in favour of vendor? v) Whether the plaintiff can be said to be not ready and willing and always ready and willing just because the notice issued by him is delayed inspite of the fact that the defendant never informed regarding sanction of mutation in his favour and notice was issued when defendant wanted to forcibly dispossess the plaintiff? In support of his case, learned counsel for the appellant has vehemently argued that both the Courts below have recorded a finding that the defendant-respondent had agreed to sell the suit land in favour of the appellant after obtaining the earnest money from him and he was also put in possession of the suit land in pursuance of the agreement. However, inspite of the aforesaid findings, it has been held against him that he was not ready and willing to perform his part of the contract. According to learned counsel, the aforesaid findings of the Courts below are erroneous and are liable to be set aside, as according to the terms of the agreement, the sale deed was to be executed on payment of balance sale consideration after sale certificate was obtained by the respondent. The defendant-respondent after obtaining the sale certificate in his favour on 18.5.1984 never informed the appellant that the sale certificate was obtained by him. In view of the fact that the appellant was continuously asking the respondent in this regard and even a notice was issued through his advocate for execution of sale deed and thus, it cannot be held that the plaintiff was not ready and willing to perform his part of the contract. In view of the fact that the appellant was continuously asking the respondent in this regard and even a notice was issued through his advocate for execution of sale deed and thus, it cannot be held that the plaintiff was not ready and willing to perform his part of the contract. According to learned counsel for the appellant, the lower Appellate Court has held that it was for the proposed vendee to issue notice for execution of the sale deed, whereas it was for the vendor to inform the proposed vendee by issuing a notice that sale certificate has been issued in his favour and the sale deed be got registered by paying the balance sale consideration and thus, in the instant case, readiness and willingness on the part of the appellant stood proved and the questions of law, as raised, arise in this appeal for consideration of the Court. I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below. From the perusal of the agreement to sell in question (Ex.P1), it is clear that no time was fixed for execution of the sale deed. From the recital made in the said agreement, it become clear that the balance sale consideration was to be received at the time of registration of the sale deed to be executed after the sale certificate was issued in favour of the respondent. The contention raised on behalf of the appellant was that after receipt of sale certificate in his favour, the notice was to be issued by the respondent asking him to get the sale deed registered. However, no such condition has been stipulated in the agreement to sell in question. In the instant case, the agreement to sell in question is dated 30.11.1981, the sale certificate was issued in favour of the respondent on 18.5.1984, whereas the appellant issued notice Ex.P3 to the respondent, calling him to execute the sale deed, fixing 10.3.2003 for execution of the sale deed on his own. No reason is forthcoming as to why the appellant kept mum for a long period of 22 years after execution of the agreement to sell dated 30.11.1981. There is nothing on record to support the plea of the appellant that he kept on asking the respondent for execution of the sale deed in his favour at any point of time. No reason is forthcoming as to why the appellant kept mum for a long period of 22 years after execution of the agreement to sell dated 30.11.1981. There is nothing on record to support the plea of the appellant that he kept on asking the respondent for execution of the sale deed in his favour at any point of time. It is appellant’s own case that he had been approaching the defendant-respondent for execution of the agreement to sell asking him for getting the mutation sanctioned and then to execute the sale deed and when the respondent did not agree to it, he got the notice issued through his counsel. However, he has admitted that except notice issued before the filing of the present suit, he did not issue any other notice upon the defendant-respondent, from which, intention of the appellant becomes clear that he remained a mute spectator for a long period of 22 years to issue the notice to the respondent calling upon him to execute the sale deed in his favour. No reason is forthcoming as to why he never inquired from the revenue authorities or the Central Government with regard to issuance of sale certificate in favour of the respondent or sanction of mutation despite the fact that the sale certificate was issued in the year 1984 and mutation was also sanctioned thereafter. It is also relevant to notice at this stage that the respondent in his cross-examination has specifically deposed that the plaintiff has taken possession of the suit property from him forcibly. Additionally, the appellant has also got the revenue entries of the suit property rectified in his name from the revenue Court. The said fact is proved from Ex. P10 passed by the Naib Tehsildar-cum-Assistant Collector IInd Grade, Tanda and the copies of khasra girdawari for the year 200203 on record, which reflect the fact that the appellant was in the knowledge of the fact that the mutation of the suit property had been already sanctioned in favour of the respondent on the basis of the sale certificate. All these facts are on record and the long delay in filing the instant suit clearly nonsuits the appellant for decree of specific performance of the agreement to sell in question. No other argument has been raised. In view thereof, this Court finds no merit in this appeal. All these facts are on record and the long delay in filing the instant suit clearly nonsuits the appellant for decree of specific performance of the agreement to sell in question. No other argument has been raised. In view thereof, this Court finds no merit in this appeal. No substantial question of law arises in this appeal. Dismissed.