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2021 DIGILAW 523 (HP)

Kamini Ahluwalia & Anr. v. Devi Saran

2021-08-06

VIVEK SINGH THAKUR

body2021
JUDGMENT Vivek Singh Thakur, J. - This application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (in short 'CPC') seeking interim stay against the non-applicant/defendant has been preferred by the applicants-plaintiffs alongwith main suit for Specific Performance of agreement to sell dated 15.06.2013 attested on 22.06.2013 executed between applicants-plaintiffs (vendees) and non-applicant/defendant (vendor), for selling the suit land by non-applicant/defendant to applicants-plaintiffs for consideration of Rs.1,30,00,000/-. As per agreement, Rs.15,00,000/- had been received by the non-applicant/defendant at the time of execution of agreement and balance amount of consideration was to be paid at the time of execution of sale deed for which last date was fixed as 15.07.2018. 2. It is case of the applicants-plaintiffs that apart from Rs.15,00,000/- as earnest money, non-applicant/defendant has also received a sum of Rs.2,00,000/- on 20.06.2013, Rs.5,00,000/- on 30.09.2013 as a part of the sale consideration, and nonapplicant/defendant, in total, has received a sum of Rs.25,00,000/- from the applicants-plaintiffs with assurance that sale deed would be executed well before the appointed date i.e. 15.07.2018. 3. It is case of the applicants-plaintiffs that before expiry of appointed date i.e. 15.07.2018, applicants-plaintiffs had requested the non-applicant/defendant orally as well as through registered letter with acknowledgement for executing the sale deed, but non-applicant/defendant has expressed his inability to execute and register the sale deed before 15.07.2018 and lastly had refused to receive the letter/notice dated 10.07.2018 issued to him (non-applicant/defendant) to execute the sale deed. In addition, applicant-plaintiff No.1 had talked with nonapplicant/defendant telephonically for execution of sale deed and non-applicant/defendant had finally agreed to execute and register the sale deed on 16.07.2018 as 15.07.2018 was Sunday. Accordingly, as per applicants-plaintiffs, applicant-plaintiff No.1 alongwith balance sale consideration visited the office of SubRegistrar (Rural) at Shimla and remained in the Complex of SubRegistrar from 10.30 a.m. to 4.45 p.m. on 16.07.2018 and she had also sworn in affidavit to this effect which was duly attested by the Executive Magistrate, Shimla (Rural), who was also exercising powers of Sub-Registrar. But on that day, nonapplicant/defendant did not turn up. Thereafter, on 17.07.2018, applicant-plaintiff No.1 personally met non-applicant/defendant to execute the sale deed, but non-applicant/defendant flatly refused and ask for money as the value of the property, according to non-applicant/defendant, had increased manifold since execution of agreement in the year 2013. But on that day, nonapplicant/defendant did not turn up. Thereafter, on 17.07.2018, applicant-plaintiff No.1 personally met non-applicant/defendant to execute the sale deed, but non-applicant/defendant flatly refused and ask for money as the value of the property, according to non-applicant/defendant, had increased manifold since execution of agreement in the year 2013. Thereafter, applicants-plaintiffs had again requested non-applicant/ defendant personally as well as telephonically on 18.07.2018 to execute and register the sale deed, but non-applicant/defendant despite having received a sum of Rs.25,00,000/- from the applicants-plaintiffs avoided execution and registration of sale deed on one pretext or the other and had threatened to transfer the property to third party for escalation of price of the property. 4. It is claim of the applicants-plaintiffs that they are ready and willing to perform their part of contract, but nonapplicant/defendant is not willing to perform his part and on account of omission and commission on the part of nonapplicant/defendant, causing delay to execute and register the sale deed, applicants-plaintiffs have suffered loss. 5. It is also submitted on behalf of the applicantsplaintiffs that with ulterior motive and malafide intention, to defeat lawful right of the applicants-plaintiffs, nonapplicant/defendant has threatened to sell property to third party at higher price and to create complication to the applicantsplaintiffs, he is mounting pressure on them to give effect to his nefarious and ill designs to extort extra amount from the applicants-plaintiffs than the amount agreed between the parties and, therefore, applicants-plaintiffs are entitled for specific performance of agreement of sale and in case sale deed is not executed in favour of the applicants-plaintiffs, they would suffer irreparable loss and grave hardship, and further that there is every possibility of decree of suit in favour of the applicantsplaintiffs and, therefore, suit property deserves to be preserved and protected during pendency of the suit land by restraining the non-applicant/defendant from alienating, selling, disposing, encumbering or changing the nature or interfering in any manner in the suit land i.e 1/3 share measuring 1-27-79 hectares out of Khata/Khatoni No.3/3 to 5 kita 55 total measuring 3-83-79 hectares and 1/8 share measuring 00-57-70 hectares out of land comprised in Khata/Khatoni NO.15/26 to 34 kitas 40 measuring 4- 61-62 hectares, situated at Up Mohal Majhar, Tehsil and District Shimla (Rural) H.P. 6. For continuation and confirmation of interim stay during pendency of the suit, learned counsel for the applicantsplaintiffs has placed reliance upon judgments passed by the Supreme Court in Civil Appeal Nos. 3523-3526 of 2010, titled as A.R. Madana Gopal Etc. Etc. vs. M/s Ramnath Publications Pvt. Ltd. And Another, decided on 09.04.2021; Civil Appeal Nos. 3574 and 3575-3577 of 2009, titled as B. Santoshamma and Others vs. D. Sarala and Others, decided on 18.09.2020; CS(OS) 1284/2011 & I.As. 8529/2011, 15754/2011, 15755/2011, 11621/2018, 12884/2018, titled as Om Prakash Aggarwal vs. Raj Kumar Mittal, decided on 28.02.2019. 7. Grant of interim stay and continuation thereof, has been opposed by the non-applicant/defendant. It is submitted on behalf of the non-applicant/defendant that suit has been filed to pressurize and blackmail the non-applicant/defendant with deliberate and intentional misstatement of facts and concealment of material facts with malafide intention to avail undue advantage by misusing machinery of law to extort money from the non-applicant/defendant for which applicants-plaintiffs are not legally entitled. Execution of agreement dated 15.06.2013 and attested on 22.06.2013 are not in dispute, however, it is case of the non-applicant/defendant that as per agreement, non-applicant/defendant had to get land partitioned and thereafter sale deed was to be executed and last date for which was fixed as 15.07.2018 and as a matter fact land was partitioned in the year 2015-16 and immediately thereafter, nonapplicant/defendant had approached and contacted the applicants-plaintiffs first of all with a request to come forward for execution of sale deed as non-applicant/defendant was in dire need of money, but in the year 2016, applicants-plaintiffs had refused to perform their part for execution of sale deed by saying that there was time to execute the same and in 2018 for the reason that applicant-plaintiff No.1 had resiled from the deal and applicant-plaintiff No.2 was not in a position to pay entire sale consideration and during this year i.e. 2018 applicant-plaintiff No.2 had conveyed to non-applicant/defendant that applicantsplaintiffs had no objection for selling suit land by non-applicant/ defendant to any third party and non-applicant/defendant was given free hand to do so. At that time, applicants-plaintiffs had also requested for refund of earnest money of Rs.8,00,000/- after selling suit land by the non-applicant/defendant. 8. At that time, applicants-plaintiffs had also requested for refund of earnest money of Rs.8,00,000/- after selling suit land by the non-applicant/defendant. 8. It is further case of non-applicant/defendant that though for default on the part of the applicants-plaintiffs earnest money was to be forfeited, but taking into consideration the relation with husband of applicant-plaintiff No.2, nonapplicant/defendant had agreed to refund the said amount and thereafter non-applicant/defendant had sold the portion of land to Budhi Singh on 22.06.2018 and to Vikas on 03.09.2019 and thereafter, had also entered into a sale agreement dated 06.08.2020 with third party namely Yogendra Kumar Neena for consideration of Rs.1,74,00,000/- and has received earnest money of Rs.2,00,000/- from him and further that as per agreement entered into with third party, non-applicant/defendant had also initiated process of exchange of some portion of land, as agreed, with adjoining land owners and the third party was and is ready and willing to get sale deed registered in their favour, but same could not be executed and registered due to interim order passed by this Court in present suit. 9. It is submitted on behalf of non-applicant/defendant that though it is stated in the agreement to sell that an amount of Rs.15,00,000/- was received by the non-applicant/defendant from applicants-plaintiffs as earnest money against total consideration of Rs.1,30,00,000/-, but as a matter of fact, nonapplicant/defendant has received only Rs.8,00,000/- i.e. Rs.5,00,000/- through Cheque No.55643 which was credited to the nonapplicant/defendant's bank account on 17.06.2013 and remaining amount of Rs.3,00,000/- was transferred through two Cheques bearing numbers 712101 dated 20.06.2013 amounting to Rs.2,00,000/- and 024578 dated 02.07.2013 amounting to Rs.1,00,000/- of Punjab National Bank and Bank of India respectively and the said amount was credited in the account of non-applicant/defendant on 02.07.2013 and 13.07.2013 respectively. 10. It is further case of the non-applicant/defendant that applicants-plaintiffs had also issued two more cheques i.e. Cheque No.024576 dated 26.06.2013 for a sum of Rs.1,00,000/- of Bank of India, The Mall, Shimla and Cheque No.710479 dated 09.07.2013 amounting to Rs.1,00,000/- of Punjab National Bank, SAD Complex, Kasumpati, Shimla, but these cheques could not be encashed as Cheque No.024578 was returned by the Bank for overwriting thereon, whereas, Cheque No.710479 was dishonoured for insufficient funds. Whereupon, nonapplicant/defendant had brought the aforesaid facts about dishonouring of these two cheques in the notice of applicantsplaintiffs with a request to make payment of balance amount of Rs.7,00,000/- of earnest money. Whereupon, nonapplicant/defendant had brought the aforesaid facts about dishonouring of these two cheques in the notice of applicantsplaintiffs with a request to make payment of balance amount of Rs.7,00,000/- of earnest money. Applicants-plaintiffs, despite assuring payment of balance earnest money at the earliest, did not pay it ignoring repeated requests and visits of nonapplicant/defendant to applicants-plaintiffs and, as such, applicants-plaintiffs have paid only Rs.8,00,000/- to the nonapplicant/defendant despite the fact that an amount of Rs.15,00,000/- has been shown in the agreement to sell to have been paid to the non-applicant/defendant. Receipt of Rs.25,00,000/-, in total, as earnest money, has been denied categorically. 11. It is submitted on behalf of the nonapplicant/defendant that applicant-plaintiff No.2 had expressed her inability to make payment of balance amount of consideration for backing out of applicant-plaintiff No.1 from the deal, and thus non-applicant/defendant, for dire need of money, had sold portion of land to Budhi Singh in June 2018 and another portion of land has been sold by the non-applicant/defendant after fourteen months thereafter to one Vikas vide sale deed dated 03.09.2019. Applicants-plaintiffs did not come forward at any point of time as they were not ready and willing to purchase the land possibly for want of sufficient funds and ultimately they had given freedom to non-applicant/defendant to sell land to anybody and in this background, some portion of land has been sold by the non-applicant/defendant and further that after lapse of more than two years after the last date for execution of sale deed, non-applicant/defendant has entered into sale agreement dated 06.08.2020 with third party for selling remaining portion of suit land and in furtherance thereto, he has initiated process for exchange of some portion of land with adjoining land owners, including Geeta Ram and Jeet Ram. 12. It is further submitted on behalf of the nonapplicant/defendant that applicants-plaintiffs were neither ready and willing nor having capability and capacity to purchase the suit land on or before 15.07.2018 and even thereafter, applicants-plaintiffs keep on sleeping for a period of about two years. 12. It is further submitted on behalf of the nonapplicant/defendant that applicants-plaintiffs were neither ready and willing nor having capability and capacity to purchase the suit land on or before 15.07.2018 and even thereafter, applicants-plaintiffs keep on sleeping for a period of about two years. Even if, it is considered that first sale deed dated 22.06.2018 is prior in time to the last date of execution of sale deed fixed in the agreement to sell entered between the applicants-plaintiffs and non-applicant/defendant, remaining portion of suit land has been sold or agreed to be sold by the non-applicant/defendant to third parties after lapse of more than one and two years respectively and, therefore, there is change in circumstances and possession of the non-applicant/defendant and availability of the suit land and in case applicants-plaintiffs were ready and willing to purchase the suit land, they would have come immediately after expiry of date fixed for execution of sale deed in their favour. It is submitted that for delay in filing suit, at this stage, for considerable change in the status of the suit land, applicants-plaintiffs are not entitled for interim relief and as incorporated in the agreement to sell in question the earnest money paid by the applicants-plaintiffs is liable to be forfeited. 13. It is also submitted on behalf of the nonapplicant/defendant that subsequent purchasers have not been arrayed as party to the suit in whose favour right in the property has approved, on account of sale deeds and agreements to sell. 14. Learned counsel for the non-applicant/defendant has placed reliance upon judgment passed by the Supreme Court in Civil Appeal No(s). 9346 of 2019, titled as Ambalal Sarabhai Enterprise vs. KS Infraspace LLP Limited and another; decided on 06.01.2020. He has also relied upon judgment dated 16.10.2020 passed by this High Court in CMPMO No.544 of 2017, titled as Sumit Kumar vs. Avneet Patyal and others; judgment passed by the Punjab and Haryana High Court in Malkiat Singh (deceased by L.Rs.) vs. Om Prakash (deceased by L.Rs.) and another, (2004) AIR(P&H) 253 ; and judgment dated 28.02.2019 passed by High Court of Delhi in CS(OS) 1284/2011 & I.As. 8529/2011, 15754/2011, 15755/2011, 11621/2018, 12884/2018, titled as Om Prakash Aggarwal vs. Raj Kumar Mittal. 15. 8529/2011, 15754/2011, 15755/2011, 11621/2018, 12884/2018, titled as Om Prakash Aggarwal vs. Raj Kumar Mittal. 15. From the facts on record, it is evident that though applicants-plaintiffs have claimed that applicant-plaintiff No.1 remained present alongwith sale consideration in the office of Registrar (Rural) at Shimla on 16.07.2018 and contacted defendant on 17.07.2018 and 18.07.2018 for execution of sale deed, but thereafter they surreptitiously remained silent for about more than two years which cast doubt about their claim that they were ready alongwith sale consideration for execution of sale deed in July 2018. No reason has been assigned for remaining silent for about two years. During these two years, non-applicant/defendant has changed his position by selling the portion of land to one Vikas on 03.09.2019 and thereafter, has also entered into a sale agreement dated 06.08.2020 with third party for a consideration of Rs.1,74,00,000/- for remaining portion of the land with further agreement to have some portion of his land exchanged with other villagers for which he has also initiated the process. Agreement to sell, subject matter of present suit, was executed in the year 2013 and thereafter title of the land, after partition, was clear in the year 2015-16 and the last date for execution of sale deed was 15.07.2018. Thereafter, applicants-plaintiffs waited for two years for filing suit for specific performance which tilts balance of convenience in favour of the non-applicant/defendant by creating doubt about claim of applicants-plaintiffs. 16. Undoubtedly, there is price escalation in the value of the land in question as evident from agreement to sell dated 06.08.2020 entered between non-applicant/defendant Yogendra Kumar Neena for a consideration of Rs.1,74,00,000/- for remaining portion of the land. Though applicants-plaintiffs have claimed that they are having sufficient means for making payment of balance amount of consideration, but no documentary proof thereof or any other material has been placed on record to substantiate the said plea. 17. Considering entire facts and circumstances of the case placed before me and ratio of law laid down in the judgments referred by learned counsel for the parties, I am of the considered opinion that applicants-plaintiffs are not entitled for interim stay as prayed. Accordingly interim stay granted vide order dated 13.08.2020 is vacated. 17. Considering entire facts and circumstances of the case placed before me and ratio of law laid down in the judgments referred by learned counsel for the parties, I am of the considered opinion that applicants-plaintiffs are not entitled for interim stay as prayed. Accordingly interim stay granted vide order dated 13.08.2020 is vacated. As purchasers and prospective purchasers of the suit land have also been arrayed as defendants in the main suit, it is needless to say that all parties including them shall abide by final outcome of the suit. 18. Application is disposed of in aforesaid terms.