Regular Second Appeal No. 885 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 885 of 2009. (O&M) Date of Decision: 26.2.2009 *** Buta Singh .. Appellant VS. Jagsir Singh .. Respondents. With Regular Second Appeal No. 886 of 2009. (O&M) *** Buta Singh .. Appellant VS. Jagsir Singh .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Shailendra Sharma, Advocate for the appellant. *** ARVIND KUMAR, J. Both the above referred regular second appeals are being disposed of by this common order passed in RSA No.885 of 2009, since in both the appeals a challenge has been laid to one and the same judgment passed by the learned First Appellate Court below. The plaintiff-respondent filed the suit for specific performance of agreement to sell dated 21.11.2005 stated to be executed by defendant- appellant in respect of the shop as detailed in the suit for an amount of Rs.1,15,000/- and in lieu thereof an amount of Rs.70,000/- was received by him in advance. The sale deed was to be executed on 20.12.2005 on which date the remaining amount was to be paid by the plaintiff. It was the case of Regular Second Appeal No. 885 of 2009 2 the plaintiff that on the stipulated date he remained present in the office of Sub Registrar along with remaining sale consideration but the defendant did not turn up and consequently he served upon the defendant a notice dated 21.12.2005 calling upon him to appear before the Sub Registrar on 3.1.2006 to get the agreement materialized, but on that date also the defendant failed to appear there and the plaintiff got his presence marked by executing an affidavit. Thus, specific performance of the agreement dated 21.11.2005 was sought by the plaintiff. On the other hand, the stand of defendant-appellant was that on the date fixed i.e. 20.12.2005 he remained present in the office of Sub Registrar throughout the day but it is the plaintiff who did not appear over there since he failed to arrange the remaining sale consideration. Thus, the plaintiff violated the terms of the agreement and accordingly the earnest money was forfeited. It was also averred that the amount of Rs.70,000/- as mentioned in the agreement to sell was not paid to him in cash rather the plaintiff carried out masonry work at his shop and thus after charging labour and interest thereupon the plaintiff calculated the amount of Rs.70,000/-. After contest, the learned trial court concluded the due execution of the agreement to sell in question, but, however, concluded that the act and conduct of the plaintiff itself shows that he though was willing to perform his part of the contract but on account of his financial incapacity to arrange the remaining sale consideration, he failed to prove his readiness to perform the contract and that he also failed to purchase the stamp papers on 20.12.2005 i.e. the initial date of execution of agreement. Thus, the plaintiff was held not entitled to the relief of specific performance but to the alternative relief of recovery of earnest money of Rs.70,000/- along with interest @ 6% per annum from the date of filing of the suit i.e. 20.1.2006 till realization of the decretal amount. Dis-satisfied with the same the defendant filed an appeal before the First Appellate Court and challenged the judgment of trial court to the extent of grant of alternative relief while the plaintiff preferred cross- objections for getting the relief of specific performance. The appeal as well as cross-objections have been decided by the impugned judgment passed by the learned First Appellate Court below whereby the appeal of the defendant has been dismissed while the cross- Regular Second Appeal No. 885 of 2009 3 objections of the plaintiff have been allowed and he has been held entitled to the relief of specific performance of agreement to sell dated 21.11.2005. I have heard learned counsel for the appellant and have gone through the paper-book carefully. It emerges out from the record that there is no dispute as to the execution of agreement to sell in question by the defendant, which otherwise has been proved on record by the plaintiff by leading over- whelming evidence in the shape of his own testimony and that of attesting witness. Although the defendant has claimed that he remained in the office of Sub Registrar on 20.12.2005 to perform his part of the contract, but the plaintiff did not come present and he (defendant) got his presence marked by getting affidavit Ex.D1 executed, but execution of affidavit alone cannot be taken as full proof to prove the readiness and willingness of the defendant to perform his part of the contract, who failed to appear before the office of Sub Registrar on 3.1.2006 i.e. the date prescribed in the notice and since the defendant-seller did not issue any notice to the purchaser-plaintiff, the time would not be made an essence of contract that too in absence of any specific conveyance of intention in this regard. The plea of the plaintiff that he could not get his presence marked on 20.12.2005 due to ignorance of law appeal to reasons since there is notice dated 21.12.2005 i.e. of the following day of stipulated date of execution of sale-deed, proved by the plaintiff as Ex.P2, vide which the defendant was called upon to execute the sale-deed. Further, the plea of the defendant that plaintiff carried out masonry work at his shop and raised the claim to Rs.70,000/- and accordingly got the agreement executed without passing on any consideration to him, was found not convincing since except his own bald statement nothing worth was produced by him in this regard and hence it was concluded that the amount of Rs.70,000/- was paid in cash to the defendant. With regard to non- purchasing of the stamp papers on 20.12.2005, it was held that since the plaintiff had not met the defendant, so there was no occasion for him to purchase the stamp papers and by this fact itself it cannot be concluded that the plaintiff was not in a position to pay the balance sale consideration or that he though willing to perform his part of the contract failed to show his readiness to do so, rather it was his specific case in the plaint and he was and is still ready and willing to perform his part of Regular Second Appeal No. 885 of 2009 4 the contract. Further, while overruling the findings of the learned trial Court as to the non-readiness of the plaintiff to perform his part of the contract, the learned First Appellate Court took into consideration the facts and circumstances of the case and observed in para No.17 of its judgment as follows:- “17. It is not a case in which the plaintiff has displayed any dilatory tactics or there is inordinate delay or in action on his part. Although the plaintiff has alleged that he appeared in the office of Sub Registrar on 20.12.2005 for getting the sale deed executed but he could not get his presence marked due to lack of legal knowledge. However, the plaintiff swung into action immediately thereafter. On the following day i.e. 21.11.2005, he got issued a legal notice copy whereof is Ex.P2 upon the defendant calling upon him to execute the sale deed on 3.1.2006. On that date, the plaintiff had appeared in the office of Sub Registrar and sworn his affidavit Ex.P4. Even, in the notice copy whereof is Ex.P2, it has been specifically mentioned that the plaintiff remained present in the office of Sub Registrar, Barnala on 20.12.2005 along with balance sale consideration and necessary expenses for execution and registration for the sale deed. It shall not be out of place to mention here that the consideration was fixed as Rs.1,15,000/- and the substantial amount of Rs.70,000/- has already been paid as earnest money. The readiness and willingness cannot be treated as a strait-jacket formula and has to be determined from the entirety of the facts and circumstances appearing on record which indicates the intention and conduct of the parties. The material on record indicates that the plaintiff swung into action immediately on the following day of the date fixed for execution of the sale deed as the sale deed could not be executed and registered on that date. The substantial Regular Second Appeal No. 885 of 2009 5 amount of consideration has already been paid. The execution of the agreement to sell Ex.P1 is admitted by the parties. The readiness and willingness on the part of the plaintiff to perform his part of the contract is also evident from the record. In these circumstances, the plaintiff is entitled to the specific performance of the agreement to sell and consequently the findings on issues No.1 and 2 recorded by the learned trial court are reversed and recorded in favour of the plaintiff and against the defendant.” From the aforesaid observations, it is abundantly clear that the learned Appellate Court below rightly evaluating the material on record rightly concluded that when execution of the agreement to sell is proved and established, a decree for specific performance has to be natural consequence and accordingly after reversing the findings of the learned Trial Court rightly granted the relief of specific performance of agreement to the plaintiff. It cannot be said that the findings returned by learned Appellate Court below are either illegal, perverse or based on no evidence. Therefore, there is no question of law raised in this appeal which may warrant its admission in exercise of jurisdiction under Section 100 of the Code. The appeals are wholly without merit and the same are accordingly dismissed in limine. Copy of this order be placed in connected RSA No.886 of 2009. (ARVIND KUMAR) JUDGE February 26,2009 Jiten