RSA No.2897 of 2011 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2897 of 2011 Date of decision: July 20, 2011. Narinder Singh Roop ... Appellant(s) v. Kamaljit Kaur @ Karamjit Kaur & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Ashok Singla, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. CM No.7975-C of 2011 For the reasons stated in the application, the same is allowed and the delay of 30 days occurred in re-filing of the appeal is condoned. Main Case Plaintiff to the suit has instituted the present regular second appeal aggrieved against the judgment of the lower appellate court whereby he reversed the findings returned by the trial court. The trial court had decreed the suit for possession by specific performance and had directed the legal heirs of Harjinder Singh to execute the sale deed whereas the lower appellate court modified this part of the decree and held plaintiff entitled to recover Rs.1.00 lacs paid to Harjinder Singh, predecessor in interest of defendants, along with interest @ 12% per annum from 29.6.2004, i.e., the date of execution of the agreement Ex.P1 till realization with proportionate RSA No.2897 of 2011 -: 2 :- costs. Controversy in the present case revolves around agreement Ex.P1. Briefly stated, the case as set up by plaintiff, is that Harjinder Singh executed an agreement to sell for sale of suit land on 29.6.2004 in favour of the plaintiff. Detail and description of the suit property has been given in the plaint. As per the agreement, Harjinder Singh had received Rs.1.00 lac as earnest money. The total sale consideration agreed was Rs.1.50 lacs and sale deed was to be executed on or before 28.9.2004. It was pleaded by the plaintiff that he was always ready and willing to perform his part of the contract but defendants never came forward to execute the sale deed. Furthermore, Harjinder Singh died on 15.7.2005. Thereafter, the legal heirs of Harjinder Singh were putting off performing their part of the agreement to sell dated 29.6.2004. Left with no other option, plaintiff had issued notice on 7.2.2005. Since in response to the notice, defendant legal heirs of Harjinder Singh had not come forward to execute the sale deed, plaintiff had instituted the suit. Upon notice, defendants caused appearance and filed their reply stating that Harjinder Singh Patwari was addicted to liquor. The plaintiff who is a practising Advocate obtained signatures of Harjinder Singh when he was under the influence of liquor. There was no legal necessity for Harjinder Singh to sell the plot in question nor any earnest money was received by him. Thus, there was no need for specific performance. They had denied other averments made in the plaint also. The trial court had drawn the following issues:- 1. Whether Harjinder Singh deceased executed an agreement to sell dated 29.6.2004 in favour of plaintiff and received Rs.1 lac as earnest money? OPP RSA No.2897 of 2011 -: 3 :- 2. Whether plaintiff always remains ready and willing to perform his part of the contract? OPP 3. Whether plaintiff is entitled for the relief of possession through specific performance of the agreement to sell? OPP 4. If issue No.3 is not proved, whether plaintiff is entitled for recovery of Rs.1,50,000/- in alternative relief? OPP 5. Whether agreement in question is a result of fraud and misrepresentation? OPD 6. Relief. Plaintiff himself appeared as PW2 and examined Gulshan Kumar, scribe of the agreement, and Harbans Singh, attesting witness to agreement Ex.P1. Widow of Harjinder Singh appeared as DW1. Issues No.1 to 3 were decided by the trial court in favour of the plaintiff and against the defendants. Issue No.4 was held to be infructuous in view of the findings returned qua issues No.1 to 3. The trial court observed as under:- “9. Agreement Ex.P1 entry into register Ex.P7, legal notice Ex.P4, postal receipt Ex.P5, all the documents are categorically proved on record and from the other side in the name of evidence there is bald oral statement of one defendant, whereas other major defendants did not even care to enter into the witness box to face the cross examination, which further calls for adverse inference. No instances of Harjinder Singh and plaintiff taking liquor regularly proved. One Patwari cannot be considered illiterate or ignorant, rustic villager to append such signatures at ease. Harjinder Singh remained alive for 13 RSA No.2897 of 2011 -: 4 :- months after the agreement and if there would have been fraud, Harjinder Singh himself must have agitated. In the present system of ours not even simple persons consider it sane to append signatures on blank papers.” Issue No.5 was also decided against the defendants and in favour of plaintiff. Thereafter, the trial court decreed the suit. The lower appellate court having considered the plea of the defendants that signatures of Harjinder Singh are at bottom of the agreement Ex.P1 and there was less space between the last four lines, held that since signatures of Harjinder Singh are admitted on agreement Ex.P1, its execution cannot be doubted and upheld the finding of the trial court to this extent. However, held that the attending circumstances are such that agreement Ex.P1 can be construed only as a loan transaction and it cannot be inferred that Harjinder Singh had agreed to sell land in favour of plaintiff vide agreement Ex.P1. The attending circumstances which were taken by the lower appellate court into consideration can be summed up as under:- A) that agreement to sell Ex.P1 was executed on 29.6.2004 and sale deed was to be executed on or before 28.9.2004, however during the life time of Harjinder Singh, no suit was filed; B) suit was filed only one week before the expiry of limitation, i.e., 20.8.2007; C) issuance of notice Ex.P4 has not been proved; D) Vinod Kumar Monga, Advocate, who had issued notice, has not been examined. Even Clerk of Vinod Kumar Monga was not examined; RSA No.2897 of 2011 -: 5 :- E) even dispatch of notice has not been proved. The lower appellate court further gave a finding of fact that plaintiff has failed to prove readiness and willingness to perform his part of the contract. The lower appellate court held as under:- “13. The plaintiff also failed to prove his readiness and willingness to perform his part of the contract. The readiness and willingness is imperative ingredient for grant of decree for possession by way of specific performance of agreement to sell dated 29.6.2004. The plaintiff failed to prove that on the due date fixed for execution of agreement to sell is 28.9.2004, he was present in the office of Sub Registrar along with sale consideration. No document worth the name to prove his presence in the office of Sub Registrar on the day fixed for registration of sale deed is brought on record. He also failed to send any notice to the legal heirs of Harjinder Singh i.e. executant of agreement Ex.P1 calling them to execute the sale deed in his favour in terms of agreement Ex.P1. Thus the readiness and willingness on the part of plaintiff to execute agreement Ex.P1 is also not proved and the learned trial court committed error in granting decree for possession by way of specific performance of agreement to sell Ex.P1.” I have heard Shri Ashok Singla, Counsel appearing for the plaintiff- appellant. I have no hesitation to affirm the finding of fact given by the lower appellate court, that the plaintiff has failed to prove readiness and willingness to perform his part of the contract, agreement Ex.P1, executed on 29.6.2004. Last date fixed, as per the agreement, for execution of the RSA No.2897 of 2011 -: 6 :- sale deed was 28.9.2004. Harjinder Singh died on 15.7.2005. In the present case, on the date fixed for execution of the sale deed, i.e., 28.9.2004, there is no documentary evidence to prove that the plaintiff remained present in the office of Sub Registrar. Plaintiff filed no application for marking him present in the office of Sub Registrar. Furthermore, no affidavit was got attested from the Sub Registrar to the effect that the plaintiff on the stipulated date remained present in the office of the Sub Registrar. On 28.9.2004, Harjinder Singh was alive. I have perused the copy of affidavit Ex.PA produced by Counsel for the appellant, which was tendered in the trial court by plaintiff in his examination in chief. It is no where stated in the affidavit that on the appointed date, the plaintiff remained present in the office of Sub Registrar. Thus, neither there is any oral assertion nor any documentary proof that on 28.9.2004, plaintiff was ready and willing to perform his part of the contract. Even notice Ex.P4 was allegedly issued to Harjinder Singh on 7.2.2005. Non-issuance of the notice immediately after the date stipulated for execution of sale deed had passed, has been rightly taken by the lower appellate court as a doubtful circumstance. Counsel appearing for the appellant-plaintiff has also shown me photo copy of the cross examination of the plaintiff. Following relevant portion of the cross examination, when translated into English, reads as under:- “On the stipulated date for getting the sale deed executed, I did not get my presence marked.” Furthermore, in cross examination, it has been stated by plaintiff- appellant appearing as PW2 that for making the payment to Harjinder RSA No.2897 of 2011 -: 7 :- Singh, he had drawn the money from the bank account maintained by his wife at State Bank of Patiala. No witness from the bank has been examined to say that on the stipulated date or immediately before that, any amount was withdrawn from the bank. Taking totality of circumstances into consideration, I affirm the finding of the lower appellate court that plaintiff has failed to prove that he was ready and willing to perform his part of the contract on the appointed date fixed for execution of the sale deed. Thus, Counsel for the appellant has failed to draw my attention to any question of law, much less substantial, which may warrant interference of this Court. Hence, there is no merit in the present appeal. The same is dismissed in limine. [Kanwaljit Singh Ahluwalia] July 20, 2011. Judge kadyan