-1- Regular Second Appeal No. 3784 of 2009 . IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 07, 2011. Regular Second Appeal No. 3784 of 2009 . Jasjit Singh son of Balwant Singh legal representative of Ram Singh son of Alikar Singh alias Likar Singh (deceased) ... Appellant VERSUS Mohd. Hanif and others, sons and legal representative of Yusuf (deceased) ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.G.S.Punia, Advocate, for the appellant. Mr.Shailender Sharma, Advocate, for respondent No.1. None for respondents Nos. 2 to 4. -.- MOHINDER PAL, J. The plaintiff is in second appeal aggrieved against the judgments and decrees passed by both the Courts below, -2- Regular Second Appeal No. 3784 of 2009 . whereby his suit for specific performance of the agreement dated 16.2.1990, or in the alternative for recovery of Rs.2,00,000/- i.e Rs.1,00,000/- paid as earnest money and Rs.1,00,000/- as damages was dismissed. The facts, as can be gathered from the plaint, are that an agreement to sell the suit land measuring 3 Kanals 13-1/3 Marlas (2 Bighas 4 Biswas) for Rs.6,46,000/- was entered into between the predecessor-in-interest of the plaintiff-appellant and the predecessor-in-interest of the defendants-respondents. The land in dispute was agreed to be sold by the defendants- respondents for a sum of Rs.6,46,000/-. The plaintiff had paid Rs.1,00,000/- to the defendants as earnest money and the remaining amount was agreed to be paid at the time of execution of the sale deed. The defendants were required to execute the sale deed on or before 16.2.1991. As per allegations of the plaintiff, the defendants, in connivance with one John Mohammad,got filed a suit against the plaintiff and obtained stay order from the Court of Sub Judge, Malkerkotla against the alienation of the suit land. On account of the stay order, the date of execution of the sale deed was extended upto 10.3.1991. The suit filed by said John Mohammad against the plaintiff was dismissed on 13.6.1991. On 8.8.1991, the defendants served a notice upon the plaintiff asking him to get the sale deed executed. The plaintiff replied to the said notice of the defendants on 22.8.1991 and inquired from them about the vacation of stay order. The defendants then replied to the said notice of the plaintiff vide their -3- Regular Second Appeal No. 3784 of 2009 . notice dated 5.9.1991 in which they apprised the plaintiff of the fact that the stay had been vacated and asked him to get the sale deed executed. The plaintiff replied to the said notice dated 5.9.1991 of the defendants on 11.9.1991 informing that he (plaintiff) was confined to bed being admitted in Daya Nand Medical College and Hospital at Ludhiana and that he would come to the office of the Sub Registrar on 30.10.1991 or 31.10.1991 for the execution of the sale deed. As per case of the plaintiff, the defendants did not turn up for the execution of the sale deed on the said dates nor gave any reply to the notice of the plaintiff. The plaintiff alleged that he had always been ready and willing to perform his part of the agreement, but the defendants were not willing to get the sale deed executed. In the written statement filed by the defendants, they took the stand that they had always been ready and willing to perform their part of the agreement, but the plaintiff was not ready with the sale price and he violated the terms and conditions of the agreement. They further stated that the suit filed by Jan Mohammad was dismissed on 13.6.1991 and that they (defendants) had no connivance with said Jan Mohammad in filing the said suit against the plaintiff. They further stated that they served two notices upon the plaintiff i.e one on 8.8.1991 and the second on 5.9.1991 wherein the plaintiff was asked to get the sale deed executed after making payment. However, the plaintiff was not ready with the sale amount and, therefore, did not turn up for execution of the sale deed. They controverted the plea -4- Regular Second Appeal No. 3784 of 2009 . of the plaintiff that he was confined to bed and was unable to attend the office of the Sub Registrar on 10.3.1991 on that account. The trial Court, after framing issues arising out of the pleadings of the parties and recording their evidence dismissed the suit filed by the plaintiff. The appeal preferred by the plaintiff against the judgment and decree passed by the trial Court was dismissed by the lower appellate Court. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the appellant that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. As noticed above, the agreement in question has been admitted by both the parties. As per the agreement, the land in dispute was agreed to be sold by the defendants to the plaintiff for a sum of Rs.6,46,000/- and a sum of Rs.1,00,000/- had been paid by the plaintiff to the defendants as earnest money. The remaining amount was agreed to be paid by the plaintiff to the defendants at the time of execution of the sale deed. The defendants were required to execute the sale deed on or before 16.2.1991. As such, the primary condition of the agreement was that the plaintiff was to make payment of the balance sale consideration by 16.2.1991. The plaintiff failed to pay the balance sale consideration to the defendants by 16.2.1991 and even upto the date of filing of the instant suit which was filed by him on 4.12.1991. No doubt, a stay granted by the Civil Court was -5- Regular Second Appeal No. 3784 of 2009 . operating against the alienation of the suit and the date of execution of the sale deed was extended upto 10.3.1991, but after the vacation of said stay order and dismissal of the suit filed by said John Mohammad against the plaintiff on 13.6.1991, the defendants served notice dated 8.8.1991 upon the plaintiff asking him to get the sale deed executed. In his reply dated 22.8.1991 to the said notice of the defendants dated 8.8.1991, the plaintiff inquired from the defendants about the vacation of stay order. Thereafter, the defendants served another notice dated 5.9.1991 upon the plaintiff apprising him of the vacation of stay order and asking him to get the sale deed executed by 10.9.1991 by paying the balance sale consideration. However, the plaintiff did not bother to turn up for execution of the sale deed. On the contrary, on 11.9.1991, the plaintiff issued another notice to the defendants informing them that he was confined to bed and admitted in Daya Nand Medical College and Hospital, Ludhiana and that he would come to the office of the Sub Registrar on 30.10.1991 or 31.10.1991 for the execution of the sale deed. No evidence was led by the plaintiff to show that he was actually admitted in hospital at Ludhiana on 10.9.1991 or that he was suffering from any disease restraining him from coming to the office of the Sub Registrar on 10.9.1991 for registration of the sale deed. Significantly, the plaintiff did not choose to appear in the witness box to support his case. Instead, his attorney Balwant Singh appeared in the witness box as P.W.8 and stated that the plaintiff was under treatment at Civil Hospital, Ludhiana, on -6- Regular Second Appeal No. 3784 of 2009 . 10.9.1991 and had not been admitted there. Balwant Singh (P.W.8), thus, gave a statement contradictory to the case of the plaintiff that on 10.9.1991 he was admitted in Daya Nand Medical College and Hospital at Ludhiana. To cap it all, the plaintiff did not produce any evidence to show that either he was admitted in Civil Hospital, Ludhiana, or Daya Nand Medical College and Hospital, Ludhiana, on 10.9.1991. It was under these circumstances that both the Courts gave a firm finding of fact that the plaintiff had not been ready and willing to perform his part of the agreement as he was not ready with the balance sale consideration. It is also worth noticing here that Balwant Singh (P.W.8), attorney of the plaintiff, stated that on 11.9.1991, the plaintiff had come to Malkerkotla to see his counsel Mr. G.K. Gupta, Advocate. If it is so, then there was no impediment for the plaintiff to come to the office of the Sub Registrar on 10.9.1991. It proves that the ground of illness taken by the plaintiff was a false one. Under the circumstances, fixing of dates for execution of the sale deed as 30.10.1991 or 31.10.1991 by the plaintiff in his notice dated 11.9.1991 was meaningless not conforming to the norms of the agreement to sell in question. Under the circumstances, I do not find any patent illegality or irregularity in the findings recorded by the Courts below, which may give rise to any substantial question of law in the present appeal. Resultantly, this appeal is hereby dismissed being without any merit. However, keeping in view the principle of equity and in order to avoid any hardship to the vendee i.e the -7- Regular Second Appeal No. 3784 of 2009 . plaintiff, he (plaintiff) is held entitled to the refund of Rs.1,00,000/- from the defendants paid by him to them (defendants) as earnest money at the time of the execution of the agreement in question. However, there shall be no order as to costs. ( MOHINDER PAL ) March 07, 2011. JUDGE ak