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Himachal Pradesh High Court · body

2014 DIGILAW 306 (HP)

Rajesh Verma v. Harbhajan Singh

2014-03-29

V.K.SHARMA

body2014
JUDGMENT V.K. Sharma, J. The plaintiff has brought this suit against the defendant for grant of a decree for specific performance of the agreement dated 7.8.2003, whereby the latter is said to have agreed to sell to the former the land measuring 33 bigha 9 biswa, comprised in khewat/khatauni No. 7/8, khasra No. 175 (0-13 bigha), khewat/khatauni No. 53/54, khasra No. 126 (3-9 bigha), khasra No. 593/128 (25-16 bigha), khasra No. 129 (0-14 bigha), khasra No. 127 (0-9 bigha) and khasra No. 538/125 ( 2-8 bigha), kita (plots) 6, as per jamabandi for the year 1997-98, situate in village Sauri Gujjran, Pargana Plassi, Tehsil Nalagarh, District Solan, H.P., which shall hereinafter be referred to as ‘the suit land’. 2.The case of the plaintiff is that he is a permanent resident of village and post office Lodhi Majra, Tehsil Nalagarh, District Solan and is an agriculturist. He being entitled to purchase land in the State of Himachal Pradesh entered into an agreement of sale dated 7.8.2003, with the defendant in respect of the suit land @ ‘ 1,30,000/- per bigha for a total consideration of ‘ 43,58,500/-, out of which a sum of ‘ 3,00,000/- was paid as earnest money, which was acknowledged by the defendant in the agreement. 3.The defendant, who had mortgaged a part of the suit land bearing khasra No. 593/128, measuring 25 bigha 16 biswa with State Bank of Patiala, ADB Branch, Nalagarh, had agreed to get the same redeemed. The balance sale consideration was agreed to be paid by 5.4.2004 and thereafter sale deed was to be executed either in favour of the plaintiff or his nominee as per terms of the agreement. 4.According to the plaintiff time was not essence of the contract as would be apparent from the agreement of sale dated 7.8.2003. It is further averred that the defendant avoided to abide by the terms of the agreement inasmuch as that instead of getting the aforesaid land comprised in khasra No.593/128, measuring 25 bigha 16 biswa redeemed from the bank, asked the plaintiff to do the needful. Accordingly, on 25.3.2004, the plaintiff deposited a sum of ‘ 2,11,950/- in the account of the defendant and got the land redeemed. Certificate to this effect issued by the bank has been filed with the plaint. 5. Accordingly, on 25.3.2004, the plaintiff deposited a sum of ‘ 2,11,950/- in the account of the defendant and got the land redeemed. Certificate to this effect issued by the bank has been filed with the plaint. 5. Further case of the plaintiff is that as agreed, on 5.4.2004 he remained present in the office of the Sub Registrar, Nalagarh, located in the court premises alongwith the entire balance sale consideration as well as expenses of registration including stamp papers etc. According to the plaintiff the defendant was also present in the office of the Sub Registrar, Nalagarh and had met him. He had been requesting him to accept the balance sale consideration and to execute the sale deed as per the terms of the agreement, but he refused to honour the agreement out of greed and started demanding more money. The plaintiff further goes on to state that on 5.4.2004, he remained present in the office of the Sub Registrar, Nalagarh, from morning till evening. To this effect is an affidavit sworn by him before the Sub Registrar, Nalagarh, filed along with the plaint. 6.It is further pleaded that to the utter surprise of the plaintiff the defendant instead of getting the sale deed executed issued a notice dated 6.4.2004, through counsel Shri H.R. Sharma, Advocate, Nalagarh, to which he sent reply dated 20.4.2004, through his counsel stating the actual facts as narrated hereinabove. The stand taken by the defendant that the agreement dated 7.8.2003, stood rescinded on 5.4.2004, was without any substance. It is asserted that from the reply it would be clear that the plaintiff was/is all through ready and willing to perform his part of the agreement. 7.It is further stated that the plaintiff had arranged the entire amount of balance sale consideration as well as other expenses by getting a sum of ‘ 45,00,000/- from one Shri Sucha Nand, son of Shri Daulat Ram, resident of Makhu Majara, Tehsil Nalagarh, who had withdrawn the said amount from Punjab National Bank, Nalagarh, on 5.4.2004, which was re-deposited on 6.4.2004 since the defendant failed to get the sale deed executed and the plaintiff had returned the said amount to Shri Sucha Nand. The plaintiff claims that he has performed his part of the agreement dated 7.8.2003. However, it is the defendant, who had failed to abide by the terms of the agreement. The plaintiff claims that he has performed his part of the agreement dated 7.8.2003. However, it is the defendant, who had failed to abide by the terms of the agreement. 8.Further averments are to the effect that the defendant with an ulterior motive has again got the aforesaid land measuring 25 bigha 16 biswa bearing khasra No. 593/128 mortgaged with State Bank of Patiala, ADB Branch, Nalagarh, vide rapat No. 301, dated 5.7.2004, against fresh loan of ‘ 2,00,000/- raised by him from the said bank. The plaintiff came to know about it only on 27.8.2004. Therefore, it is clear from the intention of the defendant that he is guilty of not performing his part of the contract. It is prayed that a direction may also be issued to the defendant to get the aforesaid land bearing khasra No. 593/128, measuring 25 bigha 16 biswa redeemed or in the alternative liberty may be reserved to the plaintiff to get the same redeemed by depositing the amount out of the balance sale consideration of ‘ 38,36,550/-. In addition to the relief of specific performance, the plaintiff has also set up claim for damages. 9.The suit is contested by the defendant on preliminary objections regarding the plaint having not been legally and properly verified and the affidavit in support thereof being also not in consonance with law, rendering the plaint liable to be rejected, lack of legally enforceable cause of action in favour of the plaintiff to file and maintain the suit and the plaintiff being estopped by his own acts, deeds, conduct and acquiescence from filing the suit. On merits execution of agreement dated 7.8.2003 is admitted. However, it is stated that “it is incorrect for the plaintiff to assert that Sale Deed was to be executed after the payment of the balance amount of the sale consideration by 5th April, 2004. As a matter of fact, the Sale Deed was to be executed on the receipt of the balance amount of sale consideration by 5th of April, 2004”. 10. It is alleged that the plaintiff has failed to abide by the terms of the agreement. It is denied that time was not essence of the contract. It is stated that the plaintiff is misconstruing the clauses of the agreement of sale. 10. It is alleged that the plaintiff has failed to abide by the terms of the agreement. It is denied that time was not essence of the contract. It is stated that the plaintiff is misconstruing the clauses of the agreement of sale. Payment of ` 2,11,950/- by the plaintiff to the bank to get a part of the suit land as aforesaid mortgaged by the defendant, redeemed, is denied and instead it is stated that the payment has been made by the defendant. It is stated that “It seems that the plaintiff in order to get undue advantage has manipulated and fabricated some documents in order to show that the amount was deposited by the Plaintiff. The defendant is not bound by such document which is a result of sheer manipulations, fabrications and forgery. The amount was deposited by the Defendant in his account for getting the land redeemed. It seems that the Plaintiff has collided with the bank officials to obtain a false certificate. The Defendant is not bound by any such acts of the Plaintiff to secure documents for his own advantage by obtaining certificate fraudulently and by sheer manipulation. Rest of the para is denied”. 11. It is denied that on 5.4.2004, the plaintiff was present in the office of the Sub Registrar, Nalagarh and had met the defendant. Instead, in fact the defendant was present in the office of the said Sub Registrar throughout the day, but the plaintiff for the reasons best known to him did not appear nor had sent any communication to the defendant showing his readiness and willingness to abide by the terms of the agreement of sale. The defendant waited for the plaintiff for the whole day and had appeared before the Sub Registrar and swore an affidavit in token of his visit to the said office for getting the sale deed registered on payment of balance sale consideration. The plaintiff, therefore, is guilty of suppressing the true and material facts from the court and as such is not entitled for the discretionary relief of specific performance of the agreement. The allegation that the defendant became greedy and demanded more money is also denied. The plaintiff, therefore, is guilty of suppressing the true and material facts from the court and as such is not entitled for the discretionary relief of specific performance of the agreement. The allegation that the defendant became greedy and demanded more money is also denied. Since the plaintiff did not pay the balance amount of sale consideration to the defendant as stipulated in the agreement of sale, the defendant after waiting for the plaintiff for the whole day was constrained to cancel the agreement. It is asserted that time was essence of the agreement. Issuance of notice dated 6.4.2004 by the defendant to the plaintiff and receipt of reply thereto from the latter are admitted. However, it is stated that reply was based on concocted facts to cover up plaintiff’s own acts of negligence in not abiding by the terms of agreement. Even prior to the stipulated date, i.e 5.4.2004, no steps were taken by the plaintiff so as to finalize the deal on 5.4.2004. There was no question of the plaintiff paying the balance amount of sale consideration after the agreement stood cancelled. The plaintiff had never been ready and willing to perform his part of the agreement. 12. The averments set up by the plaintiff that he had arranged a sum of ! 45,00,000/- from one Shri Sucha Nand for payment to the defendant towards balance sale consideration as well as other expenses connected with execution and registration of the sale deed have been denied for want of knowledge. According to the defendant, it seems that the plaintiff in order to create false evidence in his favour has manipulated certain documents in collusion with Shri Sucha Nand and bank officials of Punjab National Bank , Nalagarh, showing the alleged withdrawal and deposit of money. It is alleged that the plaintiff has not approached the court with clean hands disentitling him for the discretionary relief of specific performance. Moreover, the agreement stands rescinded and cancelled and the earnest money forfeited. 13. It is further averred as under vide para 12 of the written statement:- “Contents of Para 13 are admitted only to the extent that the Defendant mortgaged the land again on 25th July, 2004. In fact the Defendant arranged for the money to make payment of Rs. 2,11,950/- for redeeming the land in order to complete the contract of sale. It is further averred as under vide para 12 of the written statement:- “Contents of Para 13 are admitted only to the extent that the Defendant mortgaged the land again on 25th July, 2004. In fact the Defendant arranged for the money to make payment of Rs. 2,11,950/- for redeeming the land in order to complete the contract of sale. Since the Plaintiff did not abide by the terms of the Agreement dated 7th of August, 2003, by paying the balance amount of sale consideration to the defendant, therefore, the Defendant had to again raise the loan for paying back the money which he took as loan from his acquaintances. After the Agreement of Sale was cancelled, the money which was paid to the Bank by the Defendant for redeeming the land was to be repaid, therefore, it was under the compelling circumstances that the Defendant again mortgaged his land for raising the loan. It may be pertinent to mention that the Defendant has been put to unnecessary financial loss on account of the acts of omission and commission attributable to the Plaintiff. As the defendant in anticipation of the receipt of the substantial amount of the sale consideration was trying to negotiate for purchase of land in Punjab State. However, on failure on the part of the Plaintiff to abide by the terms of the agreement, the Defendant has been put to great financial set back and hardship as the value of land which the Defendant intended to purchase so negotiated stood inflated. The Defendant now is not in a position to purchase such land as the Agreement of Sale stands cancelled. The Defendant was also in dire and urgent need of money. The Plaintiff for the reasons best known to him withheld the payment of the balance amount of the sale consideration which has put the Defendant not only in embarrassing position but also put him in great financial distress. The Plaintiff, therefore, now cannot be permitted to assert that he was willing to perform his part of the contract and it was the Defendant who was guilty of non-performance of the contract. Since the Agreement of sale stood cancelled, therefore, the Plaintiff cannot seek the enforcement of clauses of the Agreement. Rest of the para is denied.” 14.The claim for damages is disputed for lack of full and material particulars and quantum. 15. Since the Agreement of sale stood cancelled, therefore, the Plaintiff cannot seek the enforcement of clauses of the Agreement. Rest of the para is denied.” 14.The claim for damages is disputed for lack of full and material particulars and quantum. 15. In replication, the plaintiff has refuted the stand taken by the defendant and has instead reiterated his own case as set up in the plaint. 16.On the pleadings on behalf of the parties, the following issues have been settled:- “1. Whether the plaintiff performed his part of the contract and was ready and willing to perform his part of the contract pursuant to the agreement of sale, as alleged? OPP. 2. Whether the time was essence of the contract, as alleged. If so, its effect? OPP. 3. Whether the plaintiff redeemed the land comprised in Khasra No. 593/128, after paying Rs. 2,11,950/- to the Bank. If so its effect? OPP. 4. Whether the plaint is not legally and properly verified. If so, its effect? OPD. 5. Whether the plaintiff has no enforceable cause of action to maintain the present suit? OPD. 6.Whether the plaintiff is estopped from filing the present suit due to his own acts, deeds, conduct and acquiescence, as alleged. If so its effect? OPD. 7. Whether the plaintiff obtained a false certificate on deposit of Rs. 2,11,950/-, as alleged. If so its effect? OPD. 8.Whether the agreement of sale dated 7.8.2003 stood cancelled and amount of earnest money forfeited in terms of the Contract agreement. If so its effect? OPD. 9. Whether the plaintiff is entitled to decree for possession by specific performance of the Contract Agreement dated 7.8.2003, as alleged? OPD. 17. The parties have led evidence. I have heard their learned counsel and gone through the record. 18. The parties have relied upon the following case law:- PLAINTIFF 1. Narinderjit Singh Vs. North Star Estate Promoters Limited, (2012) 5 Supreme Court Cases 712; 2. Azhar Sultana Vs. B. Rajamani and others, (2009) 17 Supreme Court Cases 27; 3.P. D’Souza Vs. Shondrilo Naidu, (2004) 6 Supreme Court Cases 649; 4. Veerayee Ammal Vs. Seeni Ammal, (2002) 1 Supreme Court Cases 134; 5. Gobind Ram Vs. Gian Chand, (2000) 7 Supreme court Cases 548; 6.Chand Rani (Smt.) (Dead) By LRs. Vs. Kamal Rani (Smt.) (Dead) By LRs., (1993) 1 Supreme Court Cases 519. 7.Rakha Singh Vs. Shondrilo Naidu, (2004) 6 Supreme Court Cases 649; 4. Veerayee Ammal Vs. Seeni Ammal, (2002) 1 Supreme Court Cases 134; 5. Gobind Ram Vs. Gian Chand, (2000) 7 Supreme court Cases 548; 6.Chand Rani (Smt.) (Dead) By LRs. Vs. Kamal Rani (Smt.) (Dead) By LRs., (1993) 1 Supreme Court Cases 519. 7.Rakha Singh Vs. Santokha and Others, I.L.R 1975 H.P. 820; 8.Gomathinayagam Pillai and others Vs. Palaniswami Nadar, AIR 1967 Supreme Court 868. DEFENDANT 1.Ravi Prakash Agarwal and others Vs. Rajesh Prasad Agarwal and others, (2008) 12 Supreme Court Cases 144; 2.Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others, (1996) 5 Supreme Court Cases 589; 3.Parakunnan Veetill Joseph’sSon Mathew Vs. Nedumbara Kuruvilla’s Son and others, AIR 1987 Supreme Court 2328; 4.Parakunnan Veetill Joseph’s Son Mathew Vs. Nedumbara Kuruvilla’s Son and others, 1987 (Supp) Supreme Court Cases 340 5.Smt. Sandhya Rani Sarkar Vs. Smt. Sudha Rani Debi and others, (1978) 2 Supreme court Cases 116 ; 19.The principles of law enunciated in the above authorities have been taken into consideration and borne in mind and shall be referred to wherever necessary. 20. Before taking up the issues for discussion and decision, it shall be pertinent to notice that whereas according to the defendant the time was essence of the contract and the stand on behalf of the plaintiff is to the contrary, onus to prove issue No.2 appears to have been wrongly cast upon the latter instead of the former. Accordingly, onus to prove this issue is re-cast as OPD. Similarly, issue No. 9 is in the nature of relief claimed in the suit, onus whereof ought to have been upon the plaintiff, which is re-cast as OPP. Issue Nos. 1, 3 and 7 21.All these issues being interconnected requiring common appreciation of evidence and law are being taken up together for discussion and decision. 22.Agreement of sale dated 7.8.2003, Ex.PA, stands admitted on behalf of the defendant. The controversy between the parties is as to who was responsible for its non-performance. According to the plaintiff, he was and is all through ready and willing to perform his part of the agreement and had in fact redeemed a part of the suit land comprised in khasra No. 593/128, measuring 25 bigha 16 biswa from the bank by depositing a sum of ! 2,11,950/- on behalf of the defendant on 25.3.2004. According to the plaintiff, he was and is all through ready and willing to perform his part of the agreement and had in fact redeemed a part of the suit land comprised in khasra No. 593/128, measuring 25 bigha 16 biswa from the bank by depositing a sum of ! 2,11,950/- on behalf of the defendant on 25.3.2004. Thereafter, on 5.4.2004, he was present in the office of the Sub Registrar, Nalagarh, alongwith the entire balance sale consideration as well as expenses of registration including stamp papers etc. right from the morning till evening, but the defendant refused to honour the agreement out of greed and started demanding more money. 23. Per contra, the case of the defendant is that the said sum of ! 2,11,950/- to get the aforesaid land measuring 25 bigha 16 biswa redeemed, was deposited by him. It is also his case that on 5.4.2004, he was present in the office of the Sub Registrar, Nalagarh, for execution and registration of the sale deed throughout the day, but the plaintiff did not turn up. 24.Admittedly, a part of the suit land measuring 25 bigha 16 biswa was mortgaged with the bank against the loan raised by the defendant. A perusal of the agreement dated 7.8.2003, Ex.PA, would go to show that there is a recital therein to the effect that the defendant had undertaken to get the aforesaid encumbrance created by him against a part of the suit land measuring 25 bigha 16 biswa cleared. According to the plaintiff the outstanding loan amount of ! 2,11,950/- was deposited by him with the bank on 25.3.2004, vide pay-in-slips Ex.PW-4/A for ! 55,150/- and Ex.PW-4/B for ! 1,56,800/-, totaling ! 2,11,950/-, proved in evidence by PW-4, Shri Malkiat Singh, Assistant Manager, State Bank of Patiala, ADB, Nalagargh. An objection regarding admissibility of pay-in-slips Ex.PW-4/A and Ex.PW-4/B on he ground of late production was raised on behalf of the defendant and the same was kept open so as to be decided later on. True it is that these documents were brought on record only during examination of PW-4, Shri Malkiat Singh. However, the fact remains that these are public documents and have come from proper custody and proved in accordance with law. True it is that these documents were brought on record only during examination of PW-4, Shri Malkiat Singh. However, the fact remains that these are public documents and have come from proper custody and proved in accordance with law. As such, the objection raised on behalf of the defendant is not tenable and more so when these documents have come on record under implied leave of the court. On scrutiny of pay-in-slips Ex.PW-4/A and Ex.PW-4/B, it is apparent that the aforesaid sums of ! 55,150/- and ! 1,56,800/-, totaling ! 2,11,950/-, were deposited by Shri Rajesh Verma (plaintiff) on behalf of Shri Harbhajan Singh (defendant). 25. Though, according to the defendant the said sum of ! 2,11,950/- was repaid by him after raising a loan from DW-4 Shri Dalel Chand, yet on a combined and harmonious reading of his statement coupled with the statement of DW-4 Shri Dalel Chand, it is manifest that it is a mere make believe story and more so when the defendant has categorically admitted that pay-in-slip is signed by the person, who deposits the amount. He has also admitted that pay-in-slips Ex.PW-4/A and Ex.PW-4/B were not signed by him. It appears that DW-4 Shri Dalel Chand is a got up witness. It was not pleaded by the defendant in the written statement that he had raised a loan from DW-4 Shri Dalel Chand to repay the loan raised by him from the bank. Even DW-4 has admitted that plaintiff Rajesh Verma was also present at the time when they had gone to the bank. However, he has feigned ignorance as to who had actually deposited money in the bank. He also did not know whether ! 2,11,950/- was actually deposited by the plaintiff in the bank or not. 26.Thus, it is proved beyond any doubt that apart from paying a sum of ! 3,00,000/- as advance sale consideration under the agreement dated 7.8.2003, Ex.PA, duly acknowledged by the defendant in the agreement, the plaintiff had also deposited a sum of ‘ 2,11,950/- on behalf of the defendant to get a part of the suit land measuring 25 bigha 16 biswa redeemed and thereby had partly performed his part of the contract. 27. 3,00,000/- as advance sale consideration under the agreement dated 7.8.2003, Ex.PA, duly acknowledged by the defendant in the agreement, the plaintiff had also deposited a sum of ‘ 2,11,950/- on behalf of the defendant to get a part of the suit land measuring 25 bigha 16 biswa redeemed and thereby had partly performed his part of the contract. 27. It is proved in evidence that on 5.4.2004, both the plaintiff and defendant were present in the office of the Sub Registrar, Nalagarh and in token thereof had sworn affidavits each dated 5.4.2004, Ex.PB and Ex.DA, respectively, proved in evidence by PW-2 Shri Sunder Singh, Clerk, in the office of the Executive Magistrate-cum-Tehsildar, Nalagarh. According to him, whereas affidavit Ex.DA, sworn by the defendant, was attested at 4.45 P.M, affidavit Ex.PB of the plaintiff, was attested at 4.55 P.M. In para 7 of the plaint the plaintiff has specifically averred that on 5.4.2004, the defendant had met him in the office of the Sub Registrar at Nalagarh, when he had requested him to accept the balance sale consideration and execute the sale deed, but, he had refused to honour the agreement and out of greed started asking for more money. However, while appearing as PW-1, he has stated that as agreed on 5.4.2004, he went to Tehsil office, Nalagarh. Where he kept on waiting for the defendant till evening, but, he did not turn up. To the similar effect are the recitals in affidavit Ex.PB, sworn by the plaintiff before the Executive Magistrate, Nalagarh, on 5.4.2004. Thus, it is contended on behalf of the defendant that there are stark diversions between the two versions set up by the plaintiff in the plaint on the one hand and in affidavit Ex.PB and his deposition as PW-1 on the other, which falsifies his case. True it is that there cannot be any denying of the diversions between the two versions, but the fact remains that it is proved beyond any doubt by way of independent and cogent documentary evidence that on 5.4.2004, both the plaintiff and the defendant had visited the office of the Sub Registrar at Nalagarh and had sworn affidavits Ex.PB at 4.55 P.M and Ex.DA at 4.45 P.M, respectively, in token of their presence in that office on that day. It being so, the documentary version shall have precedence over the averments set up in the plaint and recitals contained in the affidavit. 28. Now since it has been held that on the appointed day (5.4.2004), both the plaintiff and the defendant had visited the office of the Sub Registrar, Nalagarh, it can be safely inferred that purpose of their visit was essentially in connection with agreement of sale dated 7.8.2003, Ex.PA. This inference is further fortified from the recitals contained in para 6 of the legal notice dated 6.4.2004, Ex. PC, served by the defendant upon the plaintiff through counsel on the very next day of their visit to the office of the Sub Registrar, Nalagarh, which are as under:- “6. That do not try to become over-smart as you have been wrongly advised to swear affidavit and to present the same before the Sub Registrar, Nalagarh. My client has also sworn affidavit and presented the same before the Sub Registrar, Nalagarh at about 4.30 P.M. and my client waited throughout the day in the court premises but you failed to appear in the court premises for registration of sale deed as per sale agreement dated 7.08.03. The above facts and circumstances are such and specific condition and stipulation in the agreement aforesaid clearly give right to my client to forfeit you earnest money and then to sell the abovesaid land to any one he likes.” 29. In his deposition as PW-1 the plaintiff has stated that he had ready cash with him on 5.4.2004 to pay the balance sale consideration. He had taken the money on loan from one Shri Sucha Nand. According to him, he was and is still interested in purchasing the land and can arrange the funds on a week’s notice. Affidavit Ex.PW-7/A, dated 27.8.2004, was sworn by the said Shri Sucha Nand, owing to whose death in the interregnum the affidavit has been proved in evidence by his son PW-7 Shri Tarsem Lal. As per affidavit Ex.PW-7/A, Shri Sucha Nand had advanced a loan of ! 45,00,000/- to the plaintiff for purchase of land/execution of sale deed. Ex.PW-5/A is statement of account of the aforesaid Shri Sucha Nand, bearing No. SB 25061 with Punjab National Bank, Nalagarh. It has been proved in evidence by PW-5 Shri Jagdish Tapralia, CTO of the said bank. As per affidavit Ex.PW-7/A, Shri Sucha Nand had advanced a loan of ! 45,00,000/- to the plaintiff for purchase of land/execution of sale deed. Ex.PW-5/A is statement of account of the aforesaid Shri Sucha Nand, bearing No. SB 25061 with Punjab National Bank, Nalagarh. It has been proved in evidence by PW-5 Shri Jagdish Tapralia, CTO of the said bank. A perusal of statement of account Ex.PW-5/A would go to show that Shri Sucha Nand had withdrawn a sum of ! 45,00,000/- from his account on 5.4.2004 and re-deposited the same on the next date, that is, 6.4.2004. This evidence is in complete harmony with the pleadings set up by the plaintiff that he had arranged the entire amount of balance sale consideration as well as other expenses by raising a loan of ! 45,00,000/- from Shri Sucha Nand, but since the defendant had backed out and refused to honour the agreement, as his demand for more money was not met with, the said sum of ! 45,00,000/- was returned by him to Shri Sucha Nand, who had re-deposited the same in his account on the next day (6.4.2004). 30. It shall be pertinent to observe at this stage that proof of affidavit Ex.PW-7/A by PW-7, Shri Tarsem Lal and the very recording of his statement was objected on behalf of the defendant on the grounds of mode of proof and the statement having been recorded at the stage of rebuttal. The objection was kept open so as to be decided at the time of hearing arguments. True, it is that onus to prove issue No.1 as to “whether the plaintiff performed his part of the contract and was ready and willing to perform his part of the agreement pursuant to the agreement of sale, as alleged” is upon the plaintiff. At the same time, onus to prove issue No.8 “whether the agreement of sale dated 7.8.2003 stood cancelled and amount of earnest money forfeited in terms of the contract agreement. If so its effect?”, is upon the defendant. At the same time, onus to prove issue No.8 “whether the agreement of sale dated 7.8.2003 stood cancelled and amount of earnest money forfeited in terms of the contract agreement. If so its effect?”, is upon the defendant. In the given circumstances and keeping in view the settled legal position that burden of proof keeps on shifting in such matters, PW-7 Shri Tarsem Lal, was the best person to prove affidavit Ex.PW-7/A sworn by his deceased father and the objection regarding recoding his statement in rebuttal is not legally tenable in the peculiar facts and circumstances of the present case. Affidavit Ex.PW-7/A was attested by late Shri Jaipal Ranaut, notary public, Nalagarh. However, owing to his death in the meanwhile, his son PW-6, Shri Ajeet Pal Singh, has proved his signatures on the same encircled in red and marked ‘A’. 31.The above discussion brings me to hold that the plaintiff initially by paying ! 3,00,000/- as advance sale consideration under the agreement dated 7.8.2003, Ex.PA and thereafter depositing the said sum of ! 2,11,950/- in the bank for redemption of a part of the suit land measuring 25 bigha 16 biswa mortgaged with the bank by the defendant against the loan raised by him, had partly performed his part of the contract and was also ready and willing to perform his remaining part thereof, for which he had raised a loan of ! 45,00,000/- from Shri Sucha Nand. It being so, an un-exhibited certificate dated 19.4.2004, brought on record by the plaintiff in token of his having deposited two sums of ! 55,150/- and ! 1,56,800/- (totaling ! 2,11,950/-) vide pay­in-slips Ex.PW-4/A and Ex.PW-4/B cannot be said to be false by any stretch of imagination. Issues No. 1, 3 and 7 are decided accordingly. Issue No. 8 32.From a complete and harmonious reading of the evidence led on behalf of the parties, what emerges is the irresistible conclusion that whereas the plaintiff was all through ready and willing to perform his part of the contract, it was the defendant, who wanted to wriggle out of the same on one pretext or the other. It being so, he cannot be permitted to take benefit of his own wrongs. This inference is further fortified from his statement in chief examination in the end that “I am ready and willing to get the sale deed (executed) at the current market value. It being so, he cannot be permitted to take benefit of his own wrongs. This inference is further fortified from his statement in chief examination in the end that “I am ready and willing to get the sale deed (executed) at the current market value. I am not willing to sell the land at the contractual rate”. 33. Furthermore, one of the grounds set up by the plaintiff for alleged cancellation of the agreement of sale dated 7.8.2003, Ex.PA, is that out of the sale proceeds of the suit land he intended to purchase land in the State of Punjab. However, there is no recital to this effect either in the agreement of sale dated 7.8.2003, Ex.PA, wherein instead it is stated that he was selling the suit land to raise money for his karobar (business), or in the notice dated 6.4.2004, Ex.PC. Such defence was raised by him only in the written statement and evidence led by him and thus appears to be a mere afterthought. It appears that notice dated 6.4.2004, Ex.PC, was served by the defendant upon the plaintiff to avoid performance of his part of the agreement dated 7.8.2003, Ex.PA, with a view to compel the plaintiff to shell out additional sale consideration over and above the one stipulated under the agreement and as such the same would not amount to cancellation of the agreement and forfeiture of the earnest money. 34. The issue is decided accordingly. Issue No. 2 35. The plea that time was essence of the contract has been raised by the defendant and he is required to establish the same. As per agreement dated 7.8.2003, Ex.PA, the remaining sale consideration of ! 40,48,500/- was payable by 5.4.2004. It has already been held vide issue No.1 that the plaintiff was present in the office of the Sub Registrar at Nalagarh, alongwith a sum of ! 45,00,000/- towards the balance sale consideration and incidental expenses for execution and registration of the sale deed. 36. It has been held by the Hon’ble Supreme court in Gomathinayagam Pillai and others Vs. Palaniswami Nadar, AIR 1967 Supreme Court 868 that “if the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract”. Paras 4 and 5 of the judgment being relevant are extracted below:- “4. It has been held by the Hon’ble Supreme court in Gomathinayagam Pillai and others Vs. Palaniswami Nadar, AIR 1967 Supreme Court 868 that “if the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract”. Paras 4 and 5 of the judgment being relevant are extracted below:- “4. The facts which have a material bearing on the first question have already been set out. Section 55 of the Contract Act which deals with the consequences of failure to perform an executor contract at or before the stipulated time provides by the first paragraph : “When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee if the intention of the parties was that time should be of the essence of the contract.” It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable : it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. In Jamshed Kodaram Irani v. Burjorji Dhunjibhai, ILR 40 Bom 289 : (AIR 1915 PC 83) the Judicial Committee of the Privy Council observed that the principle underlying S. 55 of the Contract Act did not differ from those which obtained under the law of England as regards contracts for sale of land. The Judicial Committee observed : “Under that law equity, which governs the rights of the parties in cases of specific performance of contracts to sell real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really and in substance intended more than that it should take place within a reasonable time. Their Lordships are of opinion that this is the doctrine which the Section of the Indian Statute adopts and embodies in reference to sales of land. It may be stated concisely in the language used by Lord Cairns in Tilley v. Thomas, (1867) 3 Ch A 61:- ‘The construction is, and must be, in equity the same as in a Court of law. A Court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry, (1853) 3 De G. M. and G 284) there is nothing in the ‘express stipulations between the parties, the nature of the property, or the surrounding circumstances’, which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds . . . mentioned by Lord Justice Turner ‘express stipulations’ requires no comment. The ‘nature of the property’ is illustrated by the case of reversions, mines, or trades. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds . . . mentioned by Lord Justice Turner ‘express stipulations’ requires no comment. The ‘nature of the property’ is illustrated by the case of reversions, mines, or trades. The ‘surrounding circumstances’ must depend on the facts of each particular case’. Their Lordships will add to the statement just quoted these observations. The special jurisdiction of equity to disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having really and in substance intended as regards the time of its performance may be excluded by any plainly expressed stipulation. But to have this effect the language of the stipulation must show that the intention was to make the rights of the parties depend on the observation of the time limits prescribed in a fashion which is unmistakable. The language will have this effect if it plainly excludes the notion that these time limits were of merely secondary importance in the bargain, and that to disregard them world be to disregard nothing that lay as its foundation “Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of Law the contract has not been literally performed by the plaintiff as regards the time limit specified”. 5. The Trial Court relied upon three circumstances in support of its conclusion that time was of the essence of the contract of sale: (i) though no time was prescribed by the oral agreement, in the agreements in writing dated April 4, 1959 and April l5, 1959 there were definite stipulations fixing dates for performance of the contract : (ii) that the second and the third agreements contained clauses which imposed penalties upon the party guilty of default; and (iii) that appellants 1 and 2 were in urgent need of money and it was to meet their pressing need that they desired to effect sale of the property. But the agreements dated April 4 and April 15 do not express in unmistakable language that time was to be of the essence and existence of the default clause will not necessarily evidence such intention. Fixation of the period within which the contract is to be performed does not make the stipulation as to time of the essence of the contract. It is true that appellants 1 and 2 were badly in need of money, but they had secured Rs. 3006 from the respondent and had presumably tied over their difficulties at least temporarily. There is no evidence that when the respondent did not advance the full consideration they made other arrangements for securing funds for their immediate needs. Intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulations as to time are not of the essence. In the present case there is no express station, and the circumstances are not such as to indelicate that it was the intention of the parties that time was intended to be of the essence of the contract. It is true that even if time was not originally of the essence, the appellants could by notice served upon the respondent call upon him to take the conveyance within the time fixed and intimate that in default of compliance with the requisition the contract will be treated as cancelled. As observed in Stickney v. Keeble, 1915 AC 386 where in a contract for the sale of land the time fixed for completion is not made of the essence of the contract, but the vendor has been guilty of unnecessary delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end. In the present case appellants 1 and 2 have served no such notice, by their letter dated July 30, 1959 they treated the contract as at an end. If the respondent was otherwise qualified to obtain a decree for specific performance, his right could not be determined by the letter of appellants 1 and 2.” 37. In the present case appellants 1 and 2 have served no such notice, by their letter dated July 30, 1959 they treated the contract as at an end. If the respondent was otherwise qualified to obtain a decree for specific performance, his right could not be determined by the letter of appellants 1 and 2.” 37. However, even if it is assumed to the contrary for a moment for the sake of argument, it would be seen that the contract could not be performed on the stipulated date, i.e 5.4.2004, not because of the plaintiff and instead the defendant was responsible for the same. 38.Furthermore, the defendant while appearing as DW-1 has volunteered to state during cross examination at page 4 of his statement that “the plaintiff had met him on 21.4.2004 when I (sic. was) asked the plaintiff to get the sale deed executed and registered, the plaintiff then told me that he did not have requisite balance sale consideration with himself and was looking for the third party to make arrangements for the same”. Thus, it is manifest that even as per his own version the defendant was prepared to execute the sale deed and get the same registered even on 21.4.2004, i.e. after 5.4.2004, the date stipulated in the agreement and serving notice dated 6.4.2004, Ex.PC repudiating the agreement, on the plaintiff. In such circumstances, it does not lie in his mouth to say that time was essence of the contract. ( Please see - (1) P. D’Souza Vs. Shondrilo Naidu, (2004) 6 Supreme Court Cases 649 (Head Note G, paras 24 and 25), (2) Veerayee Ammal Vs. Seeni Ammal, (2002) 1 Supreme Court Cases 134 (Head Note A) and (3) Rakha Singh Vs. Santokha and Others, I.L.R 1975 H.P. 820) 39.The issue is decided accordingly. Issue No. 4 40.The plaint on the face of it has been verified in accordance with the provisions of Order 6, Rule 15 CPC. 41.Accordingly, the issue is held in negative. Issues No. 5 and 9 42.In view of the above findings on issue No.1, the natural corollary would be that the suit filed by the plaintiff against the defendant is based on legally enforceable cause of action and thus maintainable, entitling him for the relief claimed in the suit. 43.Both the issues are decided accordingly. Issues No. 5 and 9 42.In view of the above findings on issue No.1, the natural corollary would be that the suit filed by the plaintiff against the defendant is based on legally enforceable cause of action and thus maintainable, entitling him for the relief claimed in the suit. 43.Both the issues are decided accordingly. Issue No. 6 44.It emerges from the issue-wise discussion that the plaintiff is not estopped from filing the suit due to his acts, deeds, conduct and acquiescence, as alleged. 45.The issue is decided accordingly. Relief 46.As a result, the suit for specific performance of agreement dated 7.8.2003, Ex.PA, is decreed in favour of the plaintiff and against the defendant with costs, with a direction to the defendant to execute sale deed in respect of the suit land in favour of the plaintiff 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 plaintiff.