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Himachal Pradesh High Court · body

2014 DIGILAW 1174 (HP)

Shyam Lal v. Gopal Chand

2014-09-01

TARLOK SINGH CHAUHAN

body2014
ORDER : ” The plaintiff has filed this suit for specific performance of agreement to sell. It is averred in the plaint that the plaintiff is an agriculturist of Himachal Pradesh and vide agreement to sell dated 10.01.2011, the plaintiff had entered into an agreement with the defendant whereby the plaintiff had agreed to purchase and defendant had agreed to sell the land to the extent of ¾ th share measuring 11 biswas and 5 biswansis, out of total land measuring 0-15 biswas, comprised in Khewat No.537 min, Khatauni No. 868 min, Khasra No. 6613 situate at mauja Kotkandi, Pargana Rupi, Tehsil and District Kullu, as per jambandi for the year 2003-2004 (hereinafter referred to as the ' suit land” ). 2. The defendant being the owner of the suit land had agreed to sell the suit land vide agreement to sell for a total consideration of Rs.25,50,000/- and out of this consideration amount a sum of Rs.25,00,000/- has already been paid as detailed out in the agreement itself and the same had also been acknowledged by the defendant in the agreement itself. It is averred that Rs.25,00,000/- has been paid to the defendant by the plaintiff till the execution of the agreement to sell dated 10.01.2011 and as per the terms of the agreement the sale-deed was to be executed on or before 16th May, 2011 and the balance consideration amount was to be paid to the defendant at the time of execution of the sale deed in favour of the plaintiff by providing all necessary documents required for the purpose of the sale-deed. As per the agreement to sell dated 10.01.2011, the plaintiff was and is still ready and willing to perform his part and requested the defendant to execute the sale deed even prior to the final date i.e. 16.05.2011, but the defendant avoided to do so and has stopped attending his mobile phones. On this, the plaintiff was constrained to issue a registered/AD legal notice dated 09.05.2011 calling upon the defendant to execute the sale deed on 16th May, 2011 and informed the defendant that he will remain present in the Office of Sub-Registrar, Kullu, along with all documents required for the purpose of purchase of the suit land along with balance consideration amount of Rs.50,000/-. 3. 3. It is further pleaded that the plaintiff remained present in the Court compound/Sub- Registrar Office, Kullu, along with requisite documents, balance consideration amount to execute and register the sale-deed for which the plaintiff had already intimated the defendant on mobile phones and even vide legal notice dated 09.05.2011. The plaintiff though remained present in the office of Sub-Registrar, Kullu and in compound of the office in order to execute the sale deed as per agreement to sell dated 10.01.2011 till 4.30 p.m. but the defendant did not appear and even no message was delivered to the plaintiff. Thereafter, the plaintiff tried to contact the defendant but now he has stopped attending telephone calls of the plaintiff. It is also pleaded that now the plaintiff is under the genuine and bona fide apprehension that the defendant despite all steps being taken by the plaintiff is purposely not getting the sale-deed executed and registered and despite entering into an agreement to sell dated 10.01.2011 and receiving almost the entire consideration amount i.e. Rs.25,00,000/- out of the total consideration amount of Rs.25,50,000, has failed to execute the sale deed in favour of the plaintiff. 4. The plaintiff has averred that he was and is still ready and willing to perform his part of the contract of the agreement to sell dated 10.01.2011 but, on the other hand, the defendant is not ready and willing to perform his part of the contract which agreement is legal, valid, subsisting and enforceable against the defendant. 5. The plaintiff has claimed that in case of non performance of the agreement on the part of the defendant an ascertained sum of Rs.10 lacs has been fixed as pre-estimated liquidated damages by the parties to the agreement in addition to refund of sale consideration i.e. Rs.25 lacs paid up to the execution of the agreement to sell dated 10.01.2011 and accordingly the defendant is liable to pay a sum of Rs.35,00,000/- with interest at the rate of 18% per annum up to the date of realization to the plaintiff in case a decree for specific performance of contract is not granted. 6. 6. According to the plaintiff, the cause of action arose in favour of the plaintiff on 10.01.2011 when the agreement to sell was executed between the parties whereby the terms of the agreement were duly incorporated and set out qua the suit land and the same also arose in favour of the plaintiff and against the defendant when as per the agreement to sell the defendant failed to get the sale-deed executed and registered on 16.05.2011, despite issuance of legal notice and informing the defendant to be present in the office of Sub-Registrar, Kullu, on 16.05.2011. As per the plaintiff, the cause of action is recurring and still continuing in his favour. 7. Accordingly, the plaintiff prayed for passing of a decree in the following terms:” ' A. By way of granting a decree for specific performance of contract of agreement to sell dated 10.01.2011 and by way of directing the defendant to execute and register the sale deed and to handover the physical possession to the plaintiff with respect to the suit land to the extent of ¾ th share measuring 11 biswas and 5 biswansis out of total land measuring 0-15 biswas, comprised in khewat No. 537 min, khatauni No. 868 min, khasra No. 6613, situated at mauja Kotkandi, pargana Rupi Tehsil and District Kullu as entered in the jamabandi for the year 2003-2004 and on failure of the defendant to do so, to get the sale-deed executed and registered by a court officer appointed for getting the sale-deed executed and registered on such terms as are deemed proper by this Hon” ble Court. B. Alternatively, if this Hon” ble court comes to this conclusion that the plaintiff is not entitled for the above said relief, in that case, a decree for sum of Rs.35,00,000/- (Rs.Thirty five Lakhs) along with interest at the rate of 18% per annum along with pendentlite interest and interest calculated up to the date of realization and with costs may kindly be passed in favour of the plaintiff and against the defendant.' 8. The defendant could not be served despite repeated efforts and finally came to be served for 05.07.2012 when notice issued by this Court were received by his wife constraining this Court to proceed with the suit in the absence of the defendant, who was proceeded against ex parte. 9. This Court on 17.09.2012 framed the following issues:- 1. The defendant could not be served despite repeated efforts and finally came to be served for 05.07.2012 when notice issued by this Court were received by his wife constraining this Court to proceed with the suit in the absence of the defendant, who was proceeded against ex parte. 9. This Court on 17.09.2012 framed the following issues:- 1. Whether the plaintiff is entitled to the relief claimed for? OPP 2. Relief. 10. The plaintiff in support of his claim has examined himself as PW-1 and has stated that the defendant Gopal Chand on 10.01.2011 at Old District Court Complex, Shimla, had entered into an agreement for sale of land Ex.PW1/A in his favour which agreement was witnessed by S/Shri Ravinder Rana and Girja Nand Sharma. The agreement pertains to the land measuring 11 biswas and 5 biswansis which was agreed to be sold for a sale consideration of Rs.25,50,000/- out of which Rs.25,00,000/- had already been paid by him to the defendant as advance consideration as had been stated and reflected in Ex.PW1/A. The remainder Rs.50,000/- had been agreed to be paid by the plaintiff to the defendant at the time of execution and registration of the sale-deed which was fixed for 16-05-2011. It is claimed that he was always ready and willing and is still willing to perform his part of the contract. However, it is the defendant, who did not respond to the repeated calls of the plaintiff to execute the sale- deed. It is claimed that he even visited the house of the defendant but could not find him there which arose his suspicion that the defendant was not willing to execute the sale deed and get the same registered. Therefore, he issued a legal notice dated 09-05-2011 Ex.PW1/B whereby he had called the defendant to the Office of the Sub-Registrar (Tehsildar), Kullu, on 16-05-2011 as had been agreed upon to receive the remaining sale consideration and execute the sale-deed, but the defendant did not turn up despite the plaintiff having waited from 10 a.m. to 5 p.m. It is further claimed that when the defendant did not turn up, the plaintiff got his presence marked in the Tehsil Office, Kullu, on 16-05-2011 by executing an affidavit Ex.PW1/D, even thereafter, the defendant did not contact the plaintiff. The plaintiff in support of his claim of being an agriculturist has annexed on record certificate Ex.PW1/E and the copies of the revenue records are Ex.PW1/F and Ex.PW1/G. It is further claimed that the plaintiff has suffered financial loss and mental agony on account of non performance of the agreement to sell Ex.PW1/A and was entitled to a sum of Rs.10,00,000/-. 11. The plaintiff has examined PW-2 Ravinder Rana, son of Shri Karam Chand, who is a witness to the agreement Ex.PW1/A and stated that he knew both the parties, who had entered into an agreement dated 10.01.2011 at Old District Court Complex, Shimla, which agreement bore his signatures besides that of the defendant, plaintiff and other witness Girja Nand Sharma. It is claimed that the agreement was signed by the parties and the witnesses thereto after going through the same and admitting the contents thereof to be correct. 12. The plaintiff was permitted to lead evidence by way of affidavit of PW-3 Girja Nand Sharma, who too claimed that he knew the parties, who had entered into an agreement to sell on 10-01-2011 at Shimla and has given detailed reference to the land in dispute and further stated the sale consideration of Rs.25,00,000/- has been paid towards part payment on 10-01-2011 itself and that the remaining sale consideration was to be paid before the Sub-Registrar, Kullu on 16-05-2011 the date fixed for execution of the sale- deed. He has further stated that on 16-05-2011 he along with plaintiff remained there in the Office of the Sub-Registrar, but the defendant did not turn up for the purpose of execution of the sale-deed. Insofar as the agreement is concerned, he has clearly stated that he signed the agreement as a witness and has further claimed that both the parties had signed the agreement to sell in his presence and in presence of other witness Shri Ravinder Kumar, who too had signed the agreement in his presence. 13. Now in case the pleadings and evidence led by the plaintiff is examined, it is duly proved on record that the defendant Gopal Chand on 10-01-2011 had entered into an agreement to sell of land vide Ex.PW1/A which agreement has been duly proved on record by not only the plaintiff, who appeared as PW-1, but by the witnesses PW-2 Ravinder Rana and PW-3 Girja Nand Sharma. The plaintiff has also proved that a sale consideration of Rs.25,00,000/- had been paid by him to the defendant as an advance consideration as the same is reflected in Ex.PW1/A. It is further proved on record that the plaintiff was and is ready and willing to perform his part of the contract and in furtherance thereto had issued a legal notice dated 09.05.2011 Ex. PW1/B whereby he had called the defendant to the Office of Sub-Registrar (Tehsildar), Kullu, on 16.05.2011 to receive the remaining sale consideration and execute the sale-deed. The plaintiff has further proved on record that he was present on the date, time and place for the execution of the agreement i.e. Office of the Sub-Registrar (Tehsildar), Kullu, from 10 a.m. to 5 p.m. on 16-05-2011, but the defendant did not turn up as is evident from the affidavit Ex.PW1/D wherein all the aforesaid facts have been stated. It is also duly proved on record that the plaintiff is an agriculturist as is apparent and otherwise proved on record vide certificate Ex.PW1/E and the copies of the revenue records Ex.PW1/F and Ex.PW1/G. 14. Since the defendant has not chosen to contest the suit and there is no contrary claim or evidence available on the record, therefore, I have no option but to decree the suit of the plaintiff and pass a decree for specific performance of the contract of agreement to sell dated 10.01.2011 by directing the defendant to execute and get registered the sale deed and hand over the physical possession to the plaintiff of the suit land to the extent of ¾ th share measuring 11 biswas and 5 biswansis out of total land measuring 0-15 biswas, comprised in khewat No. 537 min, khatauni No. 868 min, khasra No. 6613, situate at mauja Kotkandi, pargana Rupi, Tehsil and District Kullu as entered in the jamabandi for the year 2003-2004, and on his failure to do so, to get the sale-deed executed and registered with the assistance of Court. The suit of the plaintiff is accordingly decreed leaving the parties to bear their own costs. Decree-sheet be drawn up in accordance with law. Order accordingly.