R.S.A. No. 2226 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2226 of 2009 (O&M) Date of decision: 28.05.2009 Sabina Malhotra and others ....appellants versus Mridhu Dilawari and another ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Baljinder Singh, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 6657-C of 2009 Allowed. Filing of certified copy of the judgment and decree of the learned trial Court is dispensed with. R.S.A. No. 2226 and C.M. No. 6658-C of 2009 The plaintiff/appellants have invoked the jurisdiction of this Court under Section 100 of the Code of Civil Procedure to challenge the judgment and decree dated 24.2.2009 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellants for possession by way of specific performance of contract, has been ordered to be dismissed. The plaintiff/appellants sought specific performance of contract dated 21.12.1989 vide which defendant No. 1 had agreed to sell R.S.A. No. 2226 of 2009 -2- plot No. 1475, Sector 28, Faridabad, and was paid a sum of Rs.5000/-, as earnest money. The total sale consideration fixed was Rs.1,25,000/-, which was agreed to be paid within 45 days from the date of delivery of possession of the suit property to vendor. It is further the case of the plaintiff/appellants that they had also sought permission from Haryana Urban Development Authority to transfer the plot in favour of the plaintiff/appellants. The plaintiff/appellants, on coming to know that defendant was taking steps to transfer the plot to some other person, filed a suit for injunction which was ultimately dismissed. It was during the pendency of the suit that possession of the plot was given to defendant No. 1 in the year 1995. As as per the agreement, the sale deed was to be executed within 45 days of the date of possession. It was only in the year 1997 that notice was given by the plaintiff for executing the conveyance deed in terms of the agreement to sell. It is pertinent to mention here that the original vendor died and was represented by appellants through their attorney. Defendant No. 1 in the year 1999 had transferred the plot to defendant No. 2 Gurdayal Singh. The suit was contested wherein a plea was raised that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. The agreement was not disputed. Stand taken was that it was the plaintiff/appellants who were not willing to perform their part of contract. Therefore, the suit for specific performance was liable to be dismissed. The learned Courts below recorded a concurrent finding of R.S.A. No. 2226 of 2009 -3- fact, that the plaintiff/appellants have failed to prove that they were always and still willing to perform their part of contract. The learned Courts below considered the evidence and pleadings of the parties in detail, and on appreciation of evidence, recorded a concurrent finding of fact that the plaintiff/appellants were not willing to perform their part of contract. Mr. Baljinder Singh, learned counsel appearing on behalf of the appellants, contends that the appeal raises the following substantial questions of law: - “1. Whether the judgment and decree passed by the learned Courts below is perverse, as the finding recorded, that the plaintiff/appellants were not willing and ready to perform their part of contract is outcome of mis-reading of evidence? 2. Whether the judgment and decree passed is inequitable as a finding has been recorded that defendant No. 2 was not bona fide purchaser?” In support of the substantial questions of law, the learned counsel for the appellants contends, that the learned Courts below wrongly came to the conclusion that the statement of power of attorney could not be read, even though, the original vendor had expired and the attorney being friend of the original vendor knew the facts. It is also the contention of the learned counsel for the appellants, that it was for defendant/respondent No. 1 to have issued notice on receipt of possession, specially when the suit for injunction was pending. In absence of notice of possession it could not be said that the plaintiff/appellants were not willing to perform their part of contract. On consideration, I find no force in the contentions raised by R.S.A. No. 2226 of 2009 -4- the learned counsel for the appellants. It is not in dispute that the plaintiff/appellants had filed a suit for injunction and continued with the same till 1998 when it was dismissed. The right to claim specific performance accrued to the plaintiff/appellants in the year 1995. The plaintiff/appellants chose not to appear in the witness box to support the assertions made, which could only be in personal knowledge of the plaintiff/appellants being wife and sons of the original vendor. It was not for the attorney to have deposed qua the personal facts. It is also not in dispute, that admittedly no steps were taken to get the sale deed executed for more than two years after the possession was taken and that the suit was filed only after the property was sold to defendant No. 2. Merely because defendant No. 2 was not held to be bona fide purchaser, cannot be a ground to reverse the concurrent finding holding that the plaintiff/appellants were not willing to perform their part of contract. There was no evidence regarding steps taken within 45 days after possession as time fixed for execution of conveyance deed was 45 days from date of possession. It is well settled law that in order to succeed in a suit for specific performance, the plaintiff is to prove, that there was an agreement to sell, receipt of earnest money, and also to prove that the plaintiff was always and still willing to perform his part of contract. Nothing has been pointed out to challenge findings recorded on appreciation of evidence, to be perverse, or not capable of being arrived at on basis of evidence led by the parties. For the reasons stated above, the substantial questions of law raised are answered against the appellants. R.S.A. No. 2226 of 2009 -5- Finding no merit in the appeal, the same is ordered to be dismissed in limine. (Vinod K. Sharma) Judge May 28, 2009 R.S.