R. S. A. No. 2121 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2121 of 2011 Date of Decision : May 23, 2011 Ram Sarup and another .... Appellants Vs. Neeraj Sharma and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Atul Lakhanpal, Senior Advocate with Ms. Shelly Saini, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Defendants Ram Sarup and Narsi Ram, who were successful in the trial court, but have been unsuccessful in the lower appellate court, have filed the instant second appeal. Respondents Neeraj Sharma etc. filed suit against defendants- appellants for possession of the suit land measuring 32 kanals by specific performance of the agreement to sell dated 10.04.2006. The plaintiffs alleged defendants agreed to sell the suit land to the plaintiffs @ Rs.5.25 lacs per acre and received Rs.4 lacs as earnest money and executed R. S. A. No. 2121 of 2011 2 impugned agreement dated 10.04.2006. Sale deed was to be executed up to 30.11.2006. The plaintiffs alleged that they have always been ready and willing to perform their part of the contract, but defendants committed breach thereof. Plaintiffs contacted the defendants telephonically prior to 30.11.2006, but the defendants expressed their inability to execute the sale deed on 30.11.2006. However, still the plaintiffs contacted the defendants on 30.11.2006 and even thereafter, to execute the sale deed. The plaintiffs served notice dated 27.02.2007 on the defendants requiring them to execute the sale deed, but the defendants did not do the needful, although plaintiffs remained present for getting the sale deed executed in terms of agreement and notice. Plaintiffs again served notice dated 16.05.2007 on the defendants requiring them to execute the sale deed, but to no effect, necessitating the filing of the suit. Defendants admitted having agreed to sell the suit land to the plaintiffs and having received Rs.4 lacs as earnest money and having executed the impugned agreement. Defendants, however, broadly controverted the other plaint averments. It was denied that plaintiffs have ever been ready and willing to perform their part of the contract. It was also denied that defendants telephonically expressed their inability to execute the sale deed on 30.11.2006 and requested for postponement of the execution of the sale deed. Defendants pleaded that on 30.11.2006 the plaintiffs did not turn up to the office of Sub Registrar with remaining sale consideration for R. S. A. No. 2121 of 2011 3 getting the sale deed executed in terms of the agreement, although the defendants remained present there to do the needful. It was further denied that even after 30.11.2006, plaintiffs contacted the defendants for execution of the sale deed or served any legal notice. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Tohana, vide judgment and decree dated 04.08.2010, dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Fatehabad, vide judgment and decree dated 12.01.2011, and thereby, suit filed by the plaintiffs stand decreed. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that time was essence of the contract. The plaintiffs did not turn up on 30.11.2006 to get the sale deed executed in terms of the agreement, although defendants remained present in the office of Sub Registrar on 30.11.2006 and got their presence recorded vide document Ex.DW-1/B, when the plaintiffs did not turn up. It was thus contended that plaintiffs were not ready and willing to perform their part of the contract and committed breach of the agreement. It was pointed out that the agreement stipulated that the in case of default by plaintiffs, their earnest money would R. S. A. No. 2121 of 2011 4 stand forfeited and in case of default by defendants, the plaintiffs would be entitled to enforce the agreement through Court, and therefore, time was made essence of the contract. I have carefully considered the aforesaid contentions, but find myself unable to agree with the same. There are usual stipulations in the impugned agreement that the sale deed was to be executed up to 30.11.2006 and in the event of default by defendants, the plaintiffs would be entitled to get the sale deed executed through Court, whereas in the event of default of plaintiffs, their earnest money would stand forfeited. This stipulation in the impugned agreement does not make time to be essence of the contract. In case of agreement to sell immovable property, the presumption is that time is not the essence of the contract. However, the parties may, expressly or impliedly, make time to be essence of the contract. In the instant case, however, the parties neither expressly nor impliedly made time to be essence of the contract. In addition to the aforesaid, the plaintiffs have expressed their readiness and willingness to perform their part of the contract. In this regard, it is significant to notice that the plaintiffs served notice dated 27.02.2007 on the defendants requiring them to execute the sale deed. This notice was served within three months of the agreed date stipulated in the agreement for execution of the sale deed. The plaintiffs then served notice dated 16.05.2007 on the defendants for doing the needful. However, since R. S. A. No. 2121 of 2011 5 the defendants failed to do so, the plaintiffs filed the instant suit for specific performance of the agreement on 16.06.2007. It is thus apparent that the plaintiffs continuously made efforts to get the sale deed executed in terms of the agreement. Consequently, the lower appellate court rightly held that plaintiffs have always been ready and willing to perform their part of the contract. It is correct that defendants apparently remained present in the office of Sub Registrar on 30.11.2006 and got their presence recorded by way of document Ex.DW-1/B. However, at the same time, plaintiffs also got prepared Ex.PW-6/B on 30.11.2006 to depict their presence on the said date for getting the sale deed executed in terms of the agreement. Stamp paper for the said affidavit was purchased on 30.11.2006. Register of the stamp vendor stood destroyed and therefore, could not be produced by the plaintiffs, as stated by son of the stamp vendor. Thus, from the continuous conduct of the plaintiffs, it becomes manifest that they have not committed breach of the agreement. On the contrary, they have always been ready and willing to perform their part of the contract. It is also manifest that time was not the essence of the contract. Defendants have not even specifically pleaded that time was made essence of the contract. For the reasons aforesaid, I find no merit in the instant second appeal. Lower appellate court has rightly decreed the suit of the plaintiffs. Finding recorded by the lower appellate court in favour of the plaintiffs R. S. A. No. 2121 of 2011 6 does not warrant interference in exercise of second appellate jurisdiction because the said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. This appeal does not raise any question of law, much less substantial question of law, for determination. Accordingly, the appeal is dismissed in limine. May 23, 2011 ( L. N. MITTAL ) monika JUDGE