IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 578 of 2010. Reserved on: 04.01.2011. Decided on 21.02.2011. _____________________________________________________ Vijay Kumar Sood. …Appellant. -Versus- Rajesh Sharma. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. Romesh Verma, Advocate. For the respondent : None. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): This Regular Second Appeal is directed against the judgment and decree dated 25.09.2010, passed by the Additional District Judge, Shimla, H.P. in Civil Appeal No. 57-S/13 of 2007. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a Civil Suit for recovery of `2.06 lacs. 3. Case of the plaintiff, in a nut-shell, is that the appellant-defendant (hereinafter referred to as “the defendant” for brevity sake), entered into an agreement dated 02.04.2004 with him for the sale of a two rooms’ flat situated in the third storey of his building, comprised in Khata Khatauni No. 24 min/125, Khasra No. 288, measuring 0-01-26 hects for a sum of `5.05 lacs. It is averred that out of a sum of `5.05 lacs, two lacs 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - were paid by him to the defendant on 02.08.2004. According to him, the sale deed was to be executed on or before 09.08.2004 before the Sub-Registrar (Rural), Shimla. But, the defendant failed to fulfill his promise and comply with the terms and conditions of the agreement and requested the plaintiff for extension of time to execute the same till 06.09.2004. However, the sale deed could not be executed. According to the plaintiff, the building in question has not been constructed with the prior approval of the statutory authorities, under the Town and Country Planning Department or Special Area Development Authority. According to the plaintiff, a false representation was made by the defendant that the building has been constructed with the prior permission of the authorities concerned. A legal notice was issued to the defendant on 17th September, 2004, calling upon him to refund the earnest money alongwith interest @ 18% per annum. 4. The suit was contested by the defendant. According to the defendant, the execution of the agreement dated 09.08.2004 is not disputed. According to him, it was the plaintiff, who was not ready and willing to perform his part of the agreement. He has denied the receipts of legal notice dated 17.09.2004. The learned trial Court framed the issues on 23.08.2005. The learned trial Court decreed the suit for a sum of `2,06,000/- with future interest @ 9% per annum from the date of filing of the suit till the realization of entire amount. The defendant preferred an appeal before the learned District Judge. He dismissed the same on 25.09.2010. Hence, this Regular Second Appeal. - 3 - 5. Mr. Romesh Verma, learned counsel for the appellant has strenuously argued that both the Courts below have not taken into consideration the settled principles of law while decreeing the suit. According to him, it is the plaintiff, who was not ready and willing to execute the sale deed. 6. I have heard Mr. Romesh Verma, learned counsel for the appellant and gone through the judgments carefully. 7. Plaintiff has appeared as PW-4. According to him, as per agreement Ex. PW-3/A, dated 24.07.2006, the sale deed was to be executed on or before 09.08.2004. The defendant did not come forward to execute the same. He has prayed for time till 6th September, 2004. According to the plaintiff, he was having balance sale consideration price and was ready and willing to perform his part of the agreement. He had even purchased the stamp papers, but the defendant failed to execute the sale deed. He has returned the stamp papers. He has proved the notice Ex. PW-4/A. 8. PW-1 is Smt. Sunila. She had deposed that on 06.09.2004, the stamp papers of `12,000/- were purchased by the plaintiff. The entry was made at Sr. No. 890, dated 06.09.2004. PW-2, Sukh Ram, Senior Assistant of the office of S.D.M.(Urban), Shimla has also supported the version of the plaintiff. According to him, the refund was made through the office of S.D.O. (Civil) on 04.10.2004. The entry was made at Sr. No. 40 on 04.10.2004. PW-3 Avishkar Ranjan is the witness to the agreement Ex. PW-3/A. 9. Defendant has appeared as DW-1. According to him, the plaintiff did not approach him for the execution of sale deed - 4 - on or before 09.08.2004. He has made numerous requests to the plaintiff. According to him, he was ready and willing to perform his part of the agreement. He has deposed in cross-examination that in his five storied building, only three sets were complete and rest were incomplete including suit premises. He has not placed any tangible evidence on record to prove that he has sought permission under the Town and Country Planning or Special Area Development Authority before the commencement of the construction of building. He has admitted that the address on notice Ex. PW-4/A is correct. The defendant has also failed to prove the completion certificate. He has admitted that he has received a sum of `2,00,000/-. The defendant could not sell the suit premises to the plaintiff without the same being approved under Town and Country Planning Act or by the Special Area Development Authority. It is in these circumstances that the plaintiff has filed the suit for recovery instead of a suit for specific performance. According to the statement of defendant, the set was not complete. Consequently, there is no substantial question of law involved in this Regular Second Appeal and the same is dismissed in limine. (Rajiv Sharma) Judge February 21, 2011. (bhupender) - 5 - - 6 -