R.S.A.No. 3808 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3808 of 2009 Date of decision: 5.4.2011 Rao Sube Singh ......Appellant Versus S.K.Chawla .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.V.Yadav, Advocate, for the appellant. Mr. Harsh Aggarwal, Advocate for respondent. **** SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell in question. The case of the plaintiff, in brief, was that the defendant was owner of the suit property and had agreed to sell the same to the plaintiff on 16.8.2003 for a total sale consideration of ` 20,73,700/-. ` 1,00,000/- were paid in cash towards earnest money vide cheque dated 17.8.2003. Another sum of ` 5,00,000/- in cash and ` 5,00,000/- vide cheque dated 29.9.2003 were paid by the plaintiff on R.S.A.No. 3808 of 2009 2 29.9.2003. A receipt in this regard was duly executed between the parties. On the stipulated date fixed for execution of the sale deed, the plaintiff was ready with the balance sale consideration but the defendant had expressed his inability to get the sale deed registered. The defendant promised to get the sale deed executed on 15.10.2003 on payment of balance sale consideration but had failed to do so despite repeated requests. On 27.2.2004, the plaintiff had purchased the stamp papers for execution and registration of the sale deed but the defendant had failed to perform his part of the contract and the plaintiff had to return the stamp papers. The plaintiff was always ready and willing to perform his part of the contract. Defendant, in his written statement, averred that as per the agreement to sell, plaintiff was required to pay the balance amount of ` 18,73,700/- within 45 days of execution of the agreement to sell. As per clause 2 of the agreement, in case the purchaser had failed to pay the balance amount within the stipulated period then the advance earnest money would stand forfeited. It was admitted that ` 10,00,000/- had been received by the defendant on 29.9.2003 but it was alleged that the plaintiff had never agreed to pay the entire balance consideration on 29.9.2003. In fact, the plaintiff was short of money and had requested to accept ` 10,00,000/- towards part payment and requested for grant of time to him till 15.10.2003 for payment of the remaining amount. The cheque of ` 5,00,000/- was issued by Suresh Dawar and not by the plaintiff. The defendant was always ready and willing to execute the sale deed within 45 days from the date of agreement and up to 15.10.2003 but plaintiff had R.S.A.No. 3808 of 2009 3 failed to arrange for the balance sale consideration. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant executed agreement to sell dated 16.8.2003 with the plaintiff? OPP. 2. Whether defendant received a sum of ` 12 lacs as earnest money? OPP 3. Whether the plaintiff is always ready and willing to perform his part of agreement ? OPP 4.Whether the agreement dated 16.8.2003 is cancelled and the earnest money forfeited as alleged? OPP 5. Whether the plaintiff is estopped from filing the present suit? OPD 6. Whether the plaintiff has no cause of action to file the present suit ? OPD 9. Relief.” The Civil Judge (Sr.Divn.) partly decreed the suit of the plaintiff vide judgment and decree dated 13.5.2008 and only a decree for recovery of ` 12 lacs, the amount paid by the plaintiff to the defendant towards part payment of the sale consideration, was passed in favour of the plaintiff and against the defendant. Aggrieved by the said judgment and decree, plainrtiff preferred an appeal and the same was dismissed vide judgment and decree dated 31.10.2008 passed by the Additional District Judge. Hence, the present appeal by the plaintiff. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves R.S.A.No. 3808 of 2009 4 dismissal. The plaintiff had filed a suit for specific performance of agreement to sell in question. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiff was not ready and willing to perform his part of the contract as he was not ready with the balance sale consideration. Although the plaintiff had been successful in establishing that the agreement to sell in question had been duly executed between the parties on 16.8.2003 but the plaintiff had failed to establish that he was ready and willing to perform his part of the contract. On the date of execution of the agreement to sell in question, ` 2,00,000/- were paid towards earnest money by the plaintiff to the defendant. However, the sale deed was to be executed on 29.9.2003 on payment of balance sale consideration. On the said date, ` 10,00,000/- were paid by the plaintiff to the defendant and it was agreed between the parties that the sale deed would be executed on or before 15.10.2003. This shows that the plaintiff was not ready with the balance sale consideration on 29.9.2003 and had paid part of the sale consideration on the said date and the date for execution of the sale deed was extended. The plaintiff had failed to lead any evidence to the effect that on 15.10.2003, he was ready with the balance sale consideration or that he had gone to the office of Sub Registrar to perform his part of the contract. The stamp papers were allegedly purchased by the plaintiff on 27.2.2004, whereas, the sale deed was to be executed on or before 15.10.2003. In these circumstances, the Courts below rightly R.S.A.No. 3808 of 2009 5 held that the plaintiff had failed to establish that he was ready and willing to perform his part of the contract. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 05, 2011 anita