R.S.A.No.1800 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1800 of 2009 (O&M) Date of Decision : 30.4.2009 Lakhvir Singh and another ....Appellants Versus Chanan Masih and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Mansur Ali, Advocate for the appellants. ... MAHESH GROVER, J. This is plaintiffs' appeal filed against the judgments of the learned trial Court dated 5.8.1999 and that of the first appellate Court dated 5.2.2009 The plaintiffs/appellants filed a suit for specific performance seeking to enforce the agreement to sell dated 21.4.1994 supposedly executed by respondents No.1 to 7 in their favour for sale of land for a consideration of Rs.1,51,000/- per acre and Rs.1,00,000/- were received as earnest money and the date for execution of the sale deed was fixed as 23.6.1995. It is the case of the appellants that on the date of the execution of the agreement the R.S.A.No.1800 of 2009 (O&M) -2- persons arrayed as respondents No.1 to 7 after receipt of the amount also executed a receipt in their favour and thereafter the appellants made numerous efforts to get the sale deed executed but the respondents failed to do so. On 23.6.1995, on the assurance of respondents No.1 to 7 the appellants came to the Tehsil premises with the remaining amount ready with them for execution of the sale deed but the respondents did not turn up. The appellants got an affidavit attested by getting their presence marked in the Tehsil premises and they also moved an application to the Sub-Registrar to the effect that they were present. Thereafter, it was alleged that the sale deed was got executed by the respondents No.1 to 7 in favour of respondent No.8. On 27.2.1996, a notice was issued asking respondents No.1 to 7 to execute the sale deed but the same was not done and hence the present suit was filed. Respondents No.1 to 7 contested the suit and pleaded that on 23.6.1995 the appellants did not turn up to get the sale deed executed, whereas they remained present in the Tehsil complex from 9.00 a.m. to 5.00 p.m. It was further submitted that the appellants did not accompany them for getting the no objection certificate from the authorities concerned as was agreed earlier and thereafter they got issued a legal notice through counsel asking the appellants to perform their part of the contract, on 27.9.1995. Since the appellants failed to perform their part of the agreement despite the notice, they sold the suit land to respondent No.8. The parties went to trial on the following issues :- R.S.A.No.1800 of 2009 (O&M) -3- 1. Whether defendants No.1 to 7 entered into an agreement with the plaintiffs dated 21.4.1994?OPP 2. Whether plaintiffs are ready and willing to perform their part of the contract?OPP 3. Whether plaintiffs are entitled to decree of possession by way of specific performance of contract?OPD 4. Relief. Both the Courts below concluded that the appellants were not ready and willing to perform their part of the agreement and therefore they dismissed the suit. In the regular second appeal it has been contended by the learned counsel for the appellants that even though both the Courts have returned a finding that the appellants were present for the purpose of execution of the sale deed in the office of the Sub- Registrar on the date fixed i.e. 23.6.1995, yet the Courts have gone wrong in returning a finding against them on the ground that they had been unable to show the means that they were capable of paying the balance sale consideration. It is the contended case of the appellants that it is not the requirement of the law and all that was required was that the appellants were to show their willingness to carry out the execution of the sale deed. He thus contended that the findings recorded by the Courts below are perverse. He further contended that both the Courts have drawn an inference from the notice which they had issued requiring the respondents No.1 to 7 to return double the amount of earnest money against them. It was pleaded that even if they had given such a notice, the same could not be taken to deprive R.S.A.No.1800 of 2009 (O&M) -4- them of the statutory remedy by filing a suit. Reliance was placed on M/s Groupe Chimique Tunisien SA v. M/s Southern Petrochemicals Industries Corpn.Ltd. 2006(3) RCR (Civil) 440. I have heard the learned counsel for the appellants and have gone through the impugned judgments. The agreement to sell and passing of the earnest money of Rs.1,00,000/- is not in dispute. The only question that is to be determined is whether the appellants were ready and willing to perform their part of the agreement. The answer to this lies in evaluation of the notice issued by the respondents No.1 to 7 on 27.9.1995 asking the appellants to get the sale deed executed within a period of 8 days. In this view of the matter, even if it is accepted that the appellants were present in the office of Sub-Registrar on 23.6.1995, yet they expressed their inability to execute the sale deed in response to the notice dated dated 27.9.1995 by saying that they were interested in getting double the amount of earnest money. The notice which was issued by respondents No.1 to 7 reflects the keenness and readiness on the part of the said respondents to execute the sale deed and the reply given by the appellants reveals their intent. Even in the subsequent notice, which the appellants gave to respondents No.1 to 7 on 27.2.1996, they merely pleaded that the amount be returned to them. There is no quarrel with the proposition as propounded by the learned counsel for the appellants that merely because they had stated in the notice dated 27.2.1996 that they were interested in return of the amount, would not be an impediment in the filing of the suit, R.S.A.No.1800 of 2009 (O&M) -5- which is legal and statutory remedy. But the fact remains that the Court cannot be oblivious of the fact that respondents No.1 to 7 had expressed their willingness to carry out the execution of the sale deed by giving a legal notice and to that notice the appellants had responded by stating that they were interested only in return of the amount. The appellants, therefore, by their conduct have clearly expressed themselves against the execution of the sale deed and the only conclusion that can be derived from this is that they were not willing to perform their part of the agreement. The next contention of the learned counsel for the appellants that they were not required to prove that they were ready with the balance sale consideration, is also not in dispute. But the question still remains that if a person pleads that he was present in the office of the Sub-Registrar with the balance amount on the date fixed, then this aspect of the matter assumes significance. Both the Courts have concluded that the appellants have failed to establish that they had the requisite amount with them on the date fixed for execution of the sale deed. As observed earlier, this was significant for the reason that they had pleaded so. In any eventuality, their response to the notice given by respondents No.1 to 7 clinches the issue against the appellants. There is thus no infirmity in the findings recorded by the Courts below and the appeal being devoid of any merit is dismissed. 30.4.2009 (MAHESH GROVER) JUDGE dss