R.S.A.No. 559 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 559 of 2009 (O&M) Date of decision: 14.10.2009 Gopal Dass ......Appellant Versus Sonu and another .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. A.K.Kansal, Advocate, for the appellant. Mr.Manoj Makkar, Advocate and Mr.Mohit Garg, Advocate, for the respondents. **** SABINA, J. Plaintiffs-respondents filed a suit for specific performance, which was decreed by the Additional Civil Judge (Sr.Divn.), Jind vide judgment and decree dated 12.5.2008. In appeal, the said judgment and decree were upheld by the District Judge, Jind vide judgment and decree dated 27.11.2008. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. There is a plot situated in Jain Nagar, Jind, boundaries of which are given in title of the plaint. R.S.A.No. 559 of 2009 (O&M) 2 Appellant-defendant is owner of the same. He had agreed to sell this plot vide agreement dated 6.7.2001 @ Rs.350/- per sq. yards. As the plot was measuring 180 sq. yards, total sale price was fixed as Rs.63,000/-. Rs.50,000/- was paid as earnest money to the defendant in presence of the witnesses and physical possession of the plot was given to the plaintiffs. Original sale deed of the plot was also handed over by the defendant. In the month of August, 2001, Rs.5000/- more was paid to the defendant. The sale deed was to be executed on or before 25.10.2001. The plot on measurement was found to be 155 sq. yards at the time of delivery of possession and hence entire sale price of Rs.55,000/- stood paid to the defendant by the plaintiff. On the appointed day i.e. 25.10.2001 when the plaintiffs were present in the office of Sub Registrar, Jind for getting the sale deed executed and registered from the defendant in their favour and they were ready with money to defray expenses of stamp duty, registration fee of sale deed and other miscellaneous charges, the defendant did not turn up till closing hours of the office. Plaintiffs were and are ready to perform their part of the agreement but the defendant never came to execute the sale deed. Consequently, the plaintiffs sent a legal notice R.S.A.No. 559 of 2009 (O&M) 3 to the defendant through their counsel on 30.5.2002. He did not come forward to execute the sale deed even then. Consequently, the litigation started. 3. The defendant had set up a case of total denial. It was claimed that the agreement is false, forged and fabricated document. Receipt of money was denied. Some preliminary objections had also been taken up which have been reflected in the array of issues. Claiming that the plaintiffs had come up with a false and concocted version and denying the receipt of notice dated 30.5.2002, while asserting that the plaintiffs had not right to file the suit. Prayer for dismissal of the suit with compensatory costs was made.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant had entered into an agreement to sell the plot as detailed in the head note of the plaint by virtue of agreement dated 6.7.2001 and had received a sum of Rs.50,000/- as earnest money from the plaintiffs against receipt, if so, to what effect? OPP 2. If issue No. is proved in affirmative, whether the plaintiffs are entitled for a decree for specific performance of contract/agreement to sell dated 6.7.2001 with consequential relief of permanent R.S.A.No. 559 of 2009 (O&M) 4 injunction in respect of plot detailed in the head note of the plaint on the grounds mentioned in the plaint? OPP 3. Whether the suit of the plaintiffs is false and frivolous? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs have no cause of action and locus standi to file the present suit? OPD 6. Whether the plaintiffs have not come with clean hands and have suppressed the material facts from the Court? OPD 7. Relief. ” Learned counsel for the appellant has submitted that the agreement to sell in the present case was not enforceable as per the terms of the contract entered between the parties. In support of his arguments, he has placed reliance on the decision of the Apex Court in Dadarao and another v. Ramrao and others 2000(1) L.J.R. 556 and the decision of this Court in Kamal Kant Jain v. Surinder Singh 2008 (20 HRR 91. Learned counsel for the respondents has submitted that in the present case the agreement to sell had been duly proved by the plaintiffs and the suit for specific performance filed by the plaintiffs had been rightly decreed. The Apex Court in P.D'Souza v. Shondrilo Naidu (2004) 6 SCC 649 has held that in the decision R.S.A.No. 559 of 2009 (O&M) 5 given in Dadarao's case (supra) was per incuriam. Para 29 of the P.D'Souza's case (supra) reads as under:- “Clause (7) of the agreement of sale would be attracted only in a case where the vendor is in breach of the term. It was for the plaintiff to file a suit for specific performance of contract despite having an option to invoke the said provision. It would not be correct to contend that only because such a clause exists, a suit for specific performance of contract would not be maintainable.” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiffs had filed a suit for specific performance of agreement to sell dated 6.7.2001. The translated version of the agreement to sell as mentioned in para 5 of the grounds of appeal reads as under:- “I Gopal Dass S/o Sh. Chandan Dass, R/o Setian Mohalla, Tehsil & Distt. Jind is first party and is owner with possession of one plot measuring 180 Sq.Yds. Vide sale deed No.2360 dated 23.12.1994 which is bounded on East: 10 Karam land of others, West: 10 Karam land of others, North: 4 ¾ Karam land of others and South: 4 ¾ Karam Path and the same is free from any encumbrance and has not been mortgage or sold and there is no loan R.S.A.No. 559 of 2009 (O&M) 6 upon the same and is not under attachment. Now I agree to sell the same to vendee (1) Sonu (2) Sandeep s/o Sh.Kushhal Chand Bhayana, resident of Village Lohari Radho Tehsil Narnaud Distt. Hisar for a total sale consideration of Rs.63,000/- (Rupees Sixty Three Thousand only) out of which Rs.50,000/- (Rupees Fifty Thousand only) has been received in cash today. The sale deed is to be registered on or before 25.10.2001 and in case the second party did not pay the balance amount the earnest money will be forfeited and if first party failed to execute the sale deed in the name of second party he is bound to pay double the amount of earnest money. Vendor will be responsible for any defect in the title. First party will pay the amount in time and will be entitled to get the sale deed registered in his own name or in the name of any other person. Hence, this agreement has been executed so that if may come to aid in case of need dated 6.7.2001, Jind” Thus, as per the agreement to sell, the sale deed was to be registered on or before 25.10.2001. It was also agreed between the parties that in case the second party did not pay the balance amount of sale consideration, the earnest money will be forfeited and in case the first party failed to execute the sale deed, it would be bound to pay double the amount of earnest money. The plaintiffs, in R.S.A.No. 559 of 2009 (O&M) 7 order to prove the due execution of the agreement to sell, examined one of the attesting witnesses of the agreement to sell and plaintiff No.1 himself appeared in the witness box as PW-1. In order to prove their readiness and willingness to perform their part of the contract, plaintiffs also proved on record notice Ex.P-3, which was sent to the defendant vide postal receipt Ex.P-4 to execute the sale deed. Plaintiff Sonu PW-1 deposed that they had remained present in the office of Sub Registrar for execution of the sale deed but defendant had failed to appear. The defendant, on the other hand, had completely denied the execution of the agreement to sell. However, the agreement to sell in question is duly thumb marked by the defendant. He failed to establish that the agreement to sell in question was a result of fraud. He had not made any complaint against the plaintiffs regarding commission of fraud against him by the plaintiffs with regard to execution of agreement Ex.P-2. The defendant also failed to disclose as to how his thumb impressions appeared on agreement to sell Ex.P-2 and receipt of Rs.50,000/-, which was also duly thumb marked by him. The argument raised by learned counsel for the appellant that the agreement to sell in question was not specifically enforceable in view of the terms of the contract is without any force. It is well settled that in cases of contract for sale of immovable property, the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent R.S.A.No. 559 of 2009 (O&M) 8 ground. Further the defendant cannot take advantage of his own wrong and then plead that the decree for specific performance would be an unfair advantage to the plaintiffs. In the present case, the plaintiffs were always ready and willing to perform their part of the contract. However, the defendant has failed to perform his part of the contract. It has been held in P.S.Ranakrishna Readdy v. M.K.Bhagyalakshmi and another 2007 (2) CCC 304 (SC), in paras 13 and 14, as under:- “13. A document, as is well known, must be read in its entirety. The intention of the parties, it is equally well settled, must be gathered from the document itself. All parts of the deed must be read in their entirety so as to ascertain the nature thereof. 14. The purported default clause, to which our intention has been drawn by Mr.Chandrashekhar, does not lead to the conclusion that the same was a contract of loan. By reason thereof, the respective liabilities of the parties were fixed. In the event, the provisions of the said contract were breached, the damage which might have been suffered by one party by reason of act of omission or commission on the part of the quantified. The quantum of damages fixed therein was the same for both the parties. The submission of R.S.A.No. 559 of 2009 (O&M) 9 Mr.Chandrashekhar that in view of the fact that parties had agreed that in the event of breach on the part of the appellant, the respondent would be entitled to claim damages for a sum of Rs.10,000/- only and, thus, the said agreement for sale was not meant to be acted upon cannot be accepted. If the said contention is accepted, the damages quantified in the event of any breach on the part of respondent No.1 cannot be explained. It is clear that in the event of commission of any breach on the part of respondent, the appellant was entitled to forfeit the entire amount of advance. The very fact that the parties intentionally incorporated such default clause clearly goes to show that they intended to lay down their rights and obligations under the contract explicitly. They, therefore, knew the terms thereof. They understood the same. There is no uncertainty or vagueness therein.” Thus, merely because in the agreement to sell, it was agreed between the parties that in case the purchaser failed to pay the balance sale consideration, then his earnest money would stand forfeited and in case the defendant failed to execute the sale deed, then he was to pay double the amount of earnest money does not lead the inference that the plaintiffs could not seek specific performance of agreement to sell. R.S.A.No. 559 of 2009 (O&M) 10 It has been held by this Court in Mohini Kapoor vs. Deepak Uppal and others 2006(1) RCR (Civil) 807, in para 8, as under:- “The argument of the learned counsel for the defendant- appellants placing reliance on Clause 2 would not require any detailed consideration because such an argument has not been raised in terms before the Courts below. The absence of such an argument before the Courts below would be significant because it would have required pleadings, framing of issues and adducing of evidence by the parties. It is no doubt true that such a course can be adopted even at the stage of second appeal under Section 100 of the Code, but I do not wish to prefer to adopt the aforementioned course because there is nothing on the record to show that there was any intimation refusing to perform the contract. Therefore, it has as to be concluded that the contract in terms of Clause 2 in any case had never been determined. No notice expressing the intention to determine the contract in terms of Clause 2 has ever been given and therefore, Section 14 (1) © of the Act cannot be invoked. It is further appropriate to mention that the use of expression ' a contract' which is in its nature determinable in Clause ( c) of Sub-section (1) of Section 14 of the Act would not R.S.A.No. 559 of 2009 (O&M) 11 include in its sweep the ordinary agreement to sell containing penalty clause which are aimed at securing the performance of the contract as envisaged by Section 23 of the Act. Moreover, sub-section (3) of Section 14, has incorporated a non-obstante clause which provides that notwithstanding anything contained inter alia any clause (c ) of sub-section (1) the court may still enforce specific performance where the suit is for enforcement of a contract. It appears to me that the situation contemplated by Section 14 (1) (c ) is the one which was available in the case of Indian Oil Corporation Limited v. Amritsar Gas Service, 1991 (1) SCC 533, because in that case the finding recorded in the award was that the distributorship agreement was revocable and the same was admittedly for rendering personal service and in such a situation Section 14 (1) (c ) would automatically get attracted. It has further been made clear that sub-section (1) of Section 14 of the Act specifies the contracts which cannot be specifically enforced and one of the type of contract mentioned is which is in its nature determinable. It is thus evident that Section 14 (1) is attracted to those contracts which cannot be specifically enforced and it includes a contract which in its nature is determinable. The aforementioned provision when read with Explanation R.S.A.No. 559 of 2009 (O&M) 12 (1) of Section 10 then it becomes evident that breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. In other words, a presumption is available under Explanation (1) of Section 10 that the court must presume that the breach of a contract to transfer immovable property must be specifically enforced and the alternative relief of securing compensation in money would not be adequate. Therefore, on principle as well as on precedent the legal position is against the defendant-appellants.” The contention of the learned counsel for the appellant that the agreement to sell was not enforceable is totally misconceived and is contrary to the settled law that in case of sale of immovable property. The damages cannot be treated as adequate compensation. The judgments relied upon by the learned counsel for the appellant fail to advance the case of the appellant. In these circumstances, the Courts below had rightly decreed the suit of the plaintiffs and they had been successful in proving their case. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 14, 2009 anita