R.S.A. No. 301 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 301 of 1985 Date of decision: 12-7-2010 Amar Nath ......... Appellant Vs Girja Devi and another .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. Santosh Sharma, Advocate, for Mr. Akshay Bhan, Advocate, for the appellant Mr. Ajay Jain, Advocate, for the respondents HARBANS LAL, J. This appeal is directed against the judgment/decree dated 12.11.1984 passed by the court of learned Additional District Judge, Narnaul whereby he modified the judgment/decree dated 6.11.1981 rendered by the court of learned Sub Judge Ist Class, Narnaul who had partly decreed the suit with proportionate costs for the recovery of Rs.2000/- as earnest money and also interest at the rate of 6% per annum on the balance amount from the date of filing of the suit till realization. The learned Additional District Judge passed the decree for specific performance of the contract on payment of Rs.11,500/- plus interest in favour of Girja Devi and against Amar Nath, who was given three month's time to execute and register the sale deed on receipt of Rs.11,500/- plus Rs. 7913/- being difference in interest and rent i.e. Rs.19,413/- in all failing which she would be entitled to get the sale deed executed and registered through Court. R.S.A. No. 301 of 1985 2 The factual matrix is that vide sale agreement dated 22.1.1976 Amar Nath agreed to sell his shop for Rs.13,500/- in favour of Girja Devi and received Rs.2000/-as earnest money. As agreed upon the sale deed was to be executed and registered by 1.6.1976 and in the event of default on the part of Girja Devi, the earnest money was to be forfeited and if Amar Nath committed default Girja Devi would get the sale deed executed through the court. The agreement was scribed on stamp paper though copy of the same was prepared on unstamped judicial paper. The original agreement was kept by Girja Devi and copy thereof was retained by Amar Nath. On the stipulated date i.e. 1.6.1976 Girja Devi kept on waiting for Amar Nath in the office of the Sub Registrar for getting the sale deed registered in her favour, but he did not appear. An application alongwith an affidavit was moved before the Sub Registrar, who in turn made an endorsement in relation to her presence on that day. In the aforesaid copy of the agreement kept by Amar Nath, the last date for execution of the sale deed was mentioned as 1.7.1976 and therefore it was on 11.6.1976 that he sent a registered letter to Girja Devi reminding her about the last date for execution of the sale deed as 1.7.1976 and asking her to intimate as to when he should reach Narnaul from Hyderabad for executing the sale deed. Some how or the other, this registered letter could not be delivered to her and it was returned as undelivered. On 18.7.1976 Amar Nath reached Narnaul and sent a registered notice through his counsel to Girja Devi calling upon her to get the sale deed executed within three days. The same was received by her on 26.7.1976 and on receipt of the same she sent her reply on 28.7.1976 for getting the sale deed registered on 16.8.1976. On receipt of the same, Amar R.S.A. No. 301 of 1985 3 Nath sent another letter on 31.7.1976 asking her to get the sale deed executed on 5.8.1976. This registered letter was received by her on 4.8.1976 and on the same day she sent reply by registered A.D. post thereby intimating that the sale deed should be got registered on 16.8.1976. She did not receive any reply to this letter. On 16.8.1976 she again appeared before the Sub Registrar and moved an application duly supported by an affidavit and got endorsement on it with regard to her presence. Her father Surya Narain vide letter dated 9.8.78 requested Amar Nath to get the sale deed executed on any mutually agreed date and it was also intimated that Girja Devi was ready to pay Rs.1500/- as interest over Rs.11,500/- plus Rs.200/- for the expenses of Amar Nath for coming to Narnaul for getting the sale deed executed, but this letter went unresponded. It was thereafter that the suit was filed for specific performance with the assertion that she had always been ready and willing to perform her part of the contract, but it was the defendant who has committed default. In answer to this claim, the defendant Amar Nath admitted the execution of the agreement and also receipt of Rs.2000/- as earnest money but pleaded that the last date for getting the sale deed executed was 1.7.1976. He had asked Girja Devi to get the sale deed executed and registered, but despite his offering to extend the date, she did not get the sale deed executed by making payment of the balance amount. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the defendant entered into an agreement of sale of the shop in question in favour of the plaintiff No.1 through plaintiff R.S.A. No. 301 of 1985 4 No.2 on 22.1.76 for a sum of Rs.13,500/- as alleged? If so on what terms?OPP 2. If issue No.1 is proved, what date was fixed by the parties for execution of the sale deed in pursuance of the agreement in question?OP Parties. 3. Whether the plaintiff No.1 has been ready and willing to perform her part of the contract throughout?OPP 4. Whether the defendant committed breach of the contract, as alleged?OPP 5. Whether the plaintiff is entitled to refund of Rs.2000/- the earnest money plus Rs.11,500/- as damages thereon, as alleged?OPP 6. Whether the suit is not maintainable for the reasons given in para 13 of the written statement?OPD 7. Whether the defendant is entitled to special costs?OPD 8. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court partly decreed the suit as noticed supra. Feeling aggrieved therewith, the plaintiffs went up in appeal, which was accepted in the terms as noticed hereinbefore. Being dissatisfied therewith the defendant has preferred this appeal. The following substantial question of law arise for determination in this appeal:- 1. Whether Girja Devi was ready and willing to get the sale deed executed and registered in her favour in pursuance of the sale agreement in dispute?” R.S.A. No. 301 of 1985 5 I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. Santosh Sharma, Advocate on behalf of the appellant has strenuously urged that as per the stipulation enshrined in Ex.D-1 the agreement to sell, the sale deed was to be executed and registered on 1.7.1976 though in Ex.P-1 the copy of this agreement such date has been given as 1.6.1976. The entry in the register of Bhola Ram Bhardwaj PW-1 scrivener of these documents tends to show that the sale deed in fact was agreed to be executed and registered on 1.7.1976. This entry lends sustenance to the plea raised by the appellant. To add further to it, Ex.P-1 being an invalid agreement/contract cannot be acted upon as there was no meeting of minds of the parties in relation to the terms contained therein. Thus, this agreement in view of the provisions of Section 29 of the Contract Act is voidable at the instance of the appellant. It is further stressed that this agreement is rendered unenforceable being void as the date 1.6.1976 allegedly fixed for executing and registering the sale deed was not accepted by the appellant. Furthermore, as per the terms of this agreement, Girja Devi respondent was to incur all the expenses of the registration, whereas in her letter written on 4.8.1976 Ex.P-2 she has categorically demanded even the registration charges. This clearly shows that she was not ready and willing to get the sale deed executed in her favour or in other words, to perform her part of the contract. A-fortiori, after 16.8.1976 she waited till 9.9.1978 i.e. for more than two years before writing the letter Ex.P-6 for executing the sale deed. It gives an inkling that as a matter of fact, she did not have sufficient means to pay the balance amount of sale consideration to the R.S.A. No. 301 of 1985 6 appellant and it is because of this reason that she waited for such a long period. As is borne out from the record, she has not put in any explanation for her this attitude. Besides this, the time was essence of the contract and in consequence of her failure to perform her part of the contract, the learned lower Appellate Court was not justified in granting the specific performance of the contract. As emanates from the evidence, the appellant-defendant had always been ready and willing to perform his part of the contract. In response Mr. Ajay Jain, Advocate on behalf of the respondents maintained that it is deducible from the evidence let in by the respondents that in the first instance Girja Devi respondent had asked to get the sale deed registered on 16.8.1976 and again vide letter Ex.D-6 dated 9.9.1978 she through Surya Narain had offered to pay Rs.1500/- as interest and Rs.200/- as the expenses for coming to Narnaul for getting the sale deed executed and registered and this speaks volumes of her being ready and willing to perform her part of the contract. I have given a deep and thoughtful consideration to the rival contentions. Indubitably, as per Ex.P-1 the date for execution and registration of the sale deed is 1.6.1976 though according to Ex.D-1 it is 1.7.1976. This fact has been admitted in categoric terms by Bhola Ram Bhardwaj PW-1 the scribe of these documents under the stress of cross- examination in which he has also testified that in the entry in my register against serial number No. 72 initially I had written the date 1.7.1976 which was corrected to be 1.6.1976 but inadvertently such correction could not be made in Ex.D-1. He being the scrivener was the best person to depose about R.S.A. No. 301 of 1985 7 the actual date fixed for the stated purpose. So, his evidence in this behalf can be relied upon unmistakably and without any demur. This piece of evidence leaves no scope for doubt that the stipulated date for execution and registration of the sale deed was 1.6.1976 and not 1.7.1976. To my mind, in view of this evidence the controversy with regards to the stipulated date of execution and registration of the sale deed stands resolved. The letter Ex.D- 9 was never received by Girja Devi. In its reply Girja Devi had asked for time upto 16.8.1976 i.e. about 20 days to get the sale deed executed and this time by no stretch of speculation could be deemed to be unreasonable. Vide letter dated 31.7.1976 which was received on 4.8.76 by Girja Devi, Amar Nath had given the time upto 5.8.1976 to execute and register the sale deed. It brings out that only one day time was given which was not enough to complete the formalities and that being so, it was difficult, if not impossible for her to get the sale deed executed. For a short while, if it is assumed that there was some sort of confusion with regards to the date of the execution and registration of the sale deed and Amar Nath appellant was ready and willing to perform his part of the contract, the best course open for him was to sit together with Girja Devi to settle the date mutually for execution and registration of the sale deed. As follows from the evidence, Girja Devi kept waiting for Amar Nath in the office of the Sub Registrar on 1.6.1976. When he did not turn up to execute and register the sale deed, she got marked her presence by making an application before the Sub Registrar on the said date in the token of her having come present for getting the sale deed executed and registered in her favour. Amar Nath has not adduced even an iota of evidence in proof of the fact that he did visit Office of Sub Registrar on R.S.A. No. 301 of 1985 8 1.7.1976 if according to him this was the date for the said purpose. It was only on 18.7.1976 that he visited Narnaul as surfaces in his evidence as DW-1. It comes out that on learning about the difference about dates in Ex.P-1 and Ex.D-1, he went away. From the entire correspondence exchanged between the parties, it emerges out that Girja Devi has always been ready and willing to perform her part of the contract. As per Ex.PW- 5/A the affidavit of Narinder Kumar son of Girja Devi on 1.6.1976 he remained present in the office of Sub Registrar throughout the day alongwith the balance amount of Rs.11,500/- and the registration expenses to get the sale deed executed and registered, but Amar Nath did not appear. According to Ex.PW-5/B another affidavit of Narinder Kumar, on 16.8.1976 he remained present in the office of the Sub Registrar alongwith the balance sale consideration to get the sale deed registered on behalf of his mother Girja Devi. Section 16(c) of the Specific Relief Act, 1963 needs to be noticed alongwith explanation which reads as under:- “16. Personal bars to relief: Specific Performance of a contract cannot be enforced in favour of a person:- (a) xxx xxx xxx (b) xx xx xx (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation: For the purposes of clause (c) --- R.S.A. No. 301 of 1985 9 (i)where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii)the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” In Faquir Chand and another Vs. Sudesh Kumari 2007(2) Recent Criminal Reports(Civil) 64 the Apex Court has laid down as under:- “The language under Section 16(c) of the Act, in our view, does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the contract. Therefore, the compliance with the readiness and willingness has to be in spirit and substance and not in letter and form.” Adverting to the present one, the continuous readiness and willingness of Girja Devi respondent to get the sale deed executed and registered from the appellant-defendant Amar Nath is discernible from the above discussed documentary evidence. In paragraph No.4 of the plaint, it has been averred with specificity that plaintiff No.1 (referring to Girja Devi) has always been and is still ready and willing to get the sale deed executed and registered in her favour pursuant to the terms contained in the sale agreement. Thus, obviously she has fulfilled the conditions of Section 16(c) ibid. So, there can be no escape from the finding that she was ever ready and R.S.A. No. 301 of 1985 10 willing to perform her part of the obligation under the agreement. In A.K.Lakshmipathy(dead) and others Vs. Rai Saheb Pannalal H.Lahoti Charitable Trust and others (2010) 1 Supreme Court Cases 287 the Supreme Court in paragraph 23 of the judgment has held that “However, it is a well-settled proposition of law by now that time is not to be of the essence in case of sale of immovable property. In Chand Rani V. Kamal Rani A.I.R. 1993 SC 1742 this Court clearly held that in the case of sale of immovable property, there is no presumption as to time being the essence of the contract.” In view of this ratio decidendi the contention raised on behalf of the learned counsel for the appellant that time being the essence of the contract the specific performance should be declined, pales into insignificance. Had there been some clause in the disputed agreement that time will be of the essence of the contract, the things would have been otherwise. It appears that to circumvent or wriggle out of the specific performance of the disputed sale agreement, the appellant Amar Nath continued throwing tantrums to execute and register sale deed. Much capital has been sought to be made out of Section 29 of the Contract Act 1872 on behalf of the appellant. This Section reads as under:- “29.Agreements void for uncertainty.---Agreements, the meaning of which is not certain or capable of being made certain, are void.” In the words of Viscount Maugham: “In order to constitute a valid contract, the parties must so express themselves that their meaning can be determined with reasonable degree of certainty. It is plain that unless this can be done it would be impossible to hold that the contracting parties had R.S.A. No. 301 of 1985 11 the same intention; in other words, consensus ad idem would be a matter of mere conjecture.” It follows, in order to constitute an agreement a contract, an offer or proposal must be certain or at least, be capable of being made certain and the consideration must be real and not loose or vague. If the agreement is vague and uncertain and is not capable of being made certain, there is really no agreement in law and as such, the question of enforcing any such agreement cannot arise. Section 29 of the Contract Act, declares all agreements, the meaning of which is not certain or capable of being made certain to be void. The purpose of Sec.29 of the Contract Act, is to ensure that the parties to a contract should be aware of the precise nature and scope of their mutual rights and obligations under the contract. There are many agreements in which the exact obligation of one of the parties cannot be measured at the time of the agreement but can be ascertained afterwards.” Even if a contract is vague in language, if it is capable of being made certain, it can be enforced. Section 29 of the Contract Act, enunciates this principle; and it is open to the Court to enforce the contract with the terms so ascertained. A contract can become void under the section only when its terms cannot be made certain. Mere vagueness or uncertainty which can be removed by proper interpretation cannot make a contract void. Herein in this case, it is admitted case of the parties that the agreement to sell was executed. The receipt of earnest money has also not been denied. The confusion has been sought to be created by the appellant merely with regard to the date of the execution and registration of the sale deed. As already held, the date therefor was 1.6.76. Thus, the terms of the contract are neither vague nor uncertain in any manner rendering it to be R.S.A. No. 301 of 1985 12 incapable of its performance. The provisions of Section 29 come into play in those cases in which the terms of the contract cannot be made certain or are vague. In my considered view, the learned counsel for the appellant has misplaced reliance upon the provisions of Section 29 ibid. As a sequel of the above discussion, the substantial question of law is answered in the terms that the plaintiff Girja Devi has been and is still ready and willing to perform her part of the contract. Consequently this appeal being devoid of any merit is dismissed. Of course, having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. (HARBANS LAL) JUDGE July 12, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes