RSA NO.1819 OF 2011 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 1819 of 2011 (O&M) Date of decision: 30.5.2011 Bhuvan and another ......Appellants Versus Naresh Arora and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.D.V.Sharma,Senior Advocate with Mr. Harit Sharma,Advocate for the appellants. **** SABINA, J. Plaintiff-Naresh Arora had filed a suit for specific performance of agreement to sell dated 22.11.2004. The case of the plaintiff, in brief, was that the defendant had agreed to sell the plot in question to the plaintiff on 22.11.2004 for a total sale consideration of ` 47,25,000/-. ` 5,00,000/- were paid towards earnest money to the defendant by the plaintiff. It was agreed between the parties that the sale deed would be executed on or before 22.12.2004. The deal was entered between the parties through Naresh Gulati. Defendant authroised said Naresh Gulati to receive ` 1,80,000/- from the plaintiff vide writing dated 29.11.2004 in order to get permission to sell the plot from the Haryana Urban Development Authority. Naresh Gulati was paid ` 1,80,000/- on RSA NO.1819 OF 2011 2 behalf of the defendant by the plaintiff and he executed a receipt dated 29.11.2004. Plaintiff had always remained ready and willing to perform his part of the contract but defendant had failed to execute the sale deed in favour of the plaintiff. Hence, the suit for specific performance was filed by the plaintiff. Defendant, in her written statement, did not deny the execution of the agreement to sell in question and the date fixed for execution of the sale deed in terms of the agreement to sell in question. However, it was averred that the plaintiff was not ready and willing to perform his part of the contract. Plaintiff had approached the defendant with a demand draft of ` 16,00,000/- only and wanted the date for execution of the sale deed to be extended. When the defendant refused to accept the cheques on 21.12.2004, plaintiff promised to appear for execution of the sale deed along with balance sale consideration by way of demand drafts. However, on 22.12.2004, plaintiff again came with a draft of ` 16,00,000/- and made an oral offer to pay the remaining amount by way of cheque. Defendant did not agree to the said proposal qua payment of balance amount by way of cheque. Plaintiff promised to return back with bank drafts but had failed to appear before the Sub Registrar upto 5.00 p.m. on 22.12.2004. As per the affidavit of the answering defendant, she had remained present for execution of the sale deed. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is entitled for possession over the suit property by way of specific performance of the agreement to sell dated 22.11.2004?OPP RSA NO.1819 OF 2011 3 2.Whether the suit is not maintainable in the present form nor the plaintiff has locus standi to file the same?OPD 3.Relief” Civil Judge, Junior Division dismissed the suit of the plaintiff vide judgment and decree dated 29.9.2010. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed by the Additional District Judge, vide judgment and decree dated 10.2.2011 and, consequently, the suit of the plaintiff was decreed. Hence, the present appeal by defendant. After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves dismissal. In the present case, the execution of the agreement to sell in question is not in dispute. The point in controversy is only to the effect as to whether the plaintiff was ready and willing to perform his part of the contract. In this regard, the case of the plaintiff is that he was ready and willing to perform his part of the contract and had remained present in the Office of the Sub Registrar on the stipulated date along with balance sale consideration. Plaintiff had brought a bank draft of ` 16 lacs and cheque worth ` 24,45,000/- , i.e., balance sale consideration on 22.12.2004 for execution of the sale deed but the defendant had failed to appear to perform her part of the contract . The fact that the plaintiff had brought the bank draft of ` 16 lacs is not in dispute. Plaintiff has proved on record the cheques qua the remaining amount as Exhibits P17 to P26. As per the affidavit of the plaintiff, Exhibit P13, he had remained present in the Office of the Sub Registrar on 22.12.2004 for execution of the sale deed. Mark D1 is the affidavit of the defendant RSA NO.1819 OF 2011 4 wherein she has stated that she was ready to perform her part of the contract but the purchaser had failed to appear with the balance sale consideration in the Office of the Sub Registrar on 22.12.2004. In the said affidavit, it has not been averred by the defendant that the plaintiff had only come with a draft of `16 lacs and cheques qua the remaining sale consideration. It is also not stated in the affidavit that defendant had insisted that the entire sale consideration be paid by way of bank drafts. Similarly in affidavit mark D2, the plea taken by the defendant that the plaintiff had only brought a draft of `16 lacs on 21.12.2004 or 22.12.2004 is not mentioned. Thus, the plea taken by the defendant that the plaintiff had only brought a draft of ` 16 lacs and the remaining sale consideration was sought to be paid by way of cheques and further that the said mode of payment was not acceptable to the defendant appears to be an after- thought. Hence, the said plea of the defendant was liable to be rejected. Rather, from the evidence led by the plaintiff, it stood established that he was ready to perform his part of the contract and has remained present in the Office of the Sub Registrar on the stipulated date for execution of the sale deed along with balance sale consideration but the defendant had failed to appear to perform her part of the contract. No substantial question of law arises in this appeal. Dismissed. ( SABINA ) JUDGE May 30, 2011 arya