RSA No.3788 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3788 of 2011(O&M) Date of Decision: September 19, 2011 Sunil Kumar .....Appellant v. Gajinder Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Aman Pal, Advocate for the appellant. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.10800-C of 2011 In view of the facts mentioned in the application, delay of 86 days in refiling the appeal is condoned. Application stands disposed of accordingly. C.M.No.10802-C of 2011 In view of the facts mentioned in the application, delay of 108 days in filing the appeal is condoned. Application stands disposed of accordingly. C.M.No.10801-C of 2011 Application is allowed. Delay in making good the deficiency in Court fee is condoned. RSA No.3788 of 2011 The present regular second appeal has been filed against judgment and decree dated 24.1.2011 passed by learned Additional District Judge, Yamuna Nagar at Jagadhri, dismissing appeal filed by present RSA No.3788 of 2011(O&M) -2- appellant-defendant against judgment and decree dated 10.8.2007 passed by learned Additional Civil Judge, (Senior Division),Yamuna Nagar at Jagadhri, vide which suit filed by respondent-plaintiff for specific performance of the agreement to sell dated 5.8.1999 and subsequent agreement to sell dated 6.12.1999 was decreed. I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, appellant-defendant executed agreement to sell dated 5.8.1999, Ex.P1, for selling his house in dispute in favour of respondent-plaintiff and received `1,00,000/- as earnest money. These facts are not in dispute. It is also not disputed that possession of the premises in dispute was also handed over to the respondent-plaintiff at the time of execution of the agreement. There is also no dispute that time for execution of sale deed was extended from time to time. The last time was extended vide agreement dated 6.12.1999, Ex.P7. There is also one of the terms and conditions of the agreement that appellant-defendant was to clear all the incumbrances of the house in dispute and was to obtain no objection certificate for transferring the house in favour of respondent-plaintiff. However, he could not fulfil the said obligation. It has been contended by learned counsel for the appellant- defendant that the suit is not filed within limitation as date of execution of agreement to sell was 5.8.1999 and hence the suit should have been filed within three years from that date. However, this plea cannot be accepted as admittedly, time for execution of sale deed was extended from time to time and lastly it was RSA No.3788 of 2011(O&M) -3- extended vide subsequent agreement Ex.P7, dated 6.12.1999 and hence, the suit was filed within three years from the said date. It is further contended that it was respondent-plaintiff who committed breach of terms and conditions of the agreement as he was not ready to comply with the same, whereas petitioner-defendant was always ready to get the sale deed executed as per agreement. It is further contended that appellant-defendant was in financial difficulty and that is why he had requested respondent-plaintiff to clear dues of `80,000/- of the society and that the amount would be adjusted in the remaining sale consideration and, however, the plea was not accepted. This plea has also been duly considered by both the Courts below. Several notices were issued by respondent-plaintiff to present appellant-defendant for getting the sale deed executed. Last reply is dated 8.2.2000 Ex.P15 sent by appellant-defendant to respondent-plaintiff vide which appellant-defendant raised demand of `80,000/-. However, as the same was not as per terms and conditions of the agreement, the plea was rightly not accepted by learned Courts below. Learned Courts below also came to the conclusion that as appellant-defendant has not been able to clear incumbrances of the house in dispute and has not obtained no due certificate for transfer the house in favour of the respondent-plaintiff, it cannot be said that appellant-defendant was already ready to perform his part of the contract. Hence, there is no force in the argument of learned counsel for the appellant-defendant that he was always ready to perform his part of the contract and that it was respondent-plaintiff who committed default. It has also been rightly observed that a defaulter is not entitled to discretionary relief of the Courts and in this case it is only the appellant-defendant who RSA No.3788 of 2011(O&M) -4- has been proved a defaulter. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned Courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 19.9.2011 (Ram Chand Gupta) meenu Judge