CM No.7346-C of 2008 ::1:: CM No.7347-C of 2008 CM No.7346-C of 2008 and RSA No.2518 of 2008 (O & M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.7346-C of 2008 CM No.7347-C of 2008 CM No.7348-C of 2008 and RSA No.2518 of 2008 (O & M) Date of decision: 06.05.2010 Virender ..Appellant Versus Jai Parkash and others .. Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.Harkesh Manuja, Advocate for the appellant. Mr.S.K.Bawa, Advocate for respondents No.1 to 3. Mr.Hitesh Sood, Advocate for respondents No.4 to 8. AJAY TEWARI J. (ORAL) CM No.7346-C of 2008 For the reasons recorded in the application, same stands allowed and the delay of 8 days in filing the appeal stands condoned. CM No.7347-C of 2008 For the reasons recorded in the application, same stands allowed and the delay of 98 days in re-filing the appeal is condoned. CM No.7348-C of 2008 For the reasons recorded in the application, same stands allowed. CM No.7346-C of 2008 ::2:: CM No.7347-C of 2008 CM No.7346-C of 2008 and RSA No.2518 of 2008 (O & M) RSA No.2518 of 2008 (O & M) This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant for specific performance of an agreement to sell dated 22.07.1998 in respect of 36 Kanals land at a total consideration of Rs.13.5 Lacs. As per the agreement to sell, the appellant had paid an amount of Rs.2 Lacs as earnest money to the respondent on 22.07.1998 and 22.12.1998 was the date fixed for executing the sale deed. Both the parties admittedly appeared on the date fixed but the sale deed could not be executed. On this score, there is divergence between the parties. The learned counsel for the appellant urged that the sale deed could not be executed because the respondents No.1 to 3 had not cleared some agricultural loans which they were supposed to have done by the due date. The respondents No.1 to 3, on the other hand, claimed that the sale deed could not be executed as the appellant did not have the requisite funds. Thereafter, the story gets murkier. The appellant claimed that he had appeared before the Registrar on 31st March, 1999, which was the fresh date fixed. Subsequently, he filed the present suit. In written statement, the respondents No.1 to 3 took the plea that on the original date fixed, time had been extended upto 12th February, 1999. They further pleaded that they had issued a registered notice to the appellant on 3rd February, 1999 calling upon him to appear before the Registrar on 12th February, 1999. They appeared before the Sub-Registrar on 12th February, 1999 but the sale deed could not be executed as the appellant did not come present. Another subsidiary plea taken by the appellant was that on the original date fixed i.e.22.12.1998 he had paid further a sum of Rs.2.25 lacs to the respondents No.1 to 3. Both the Courts below have CM No.7346-C of 2008 ::3:: CM No.7347-C of 2008 CM No.7346-C of 2008 and RSA No.2518 of 2008 (O & M) declined the relief of specific performance. The learned Trial Court, however, order refund of Rs.4.25 Lacs. The learned Appellate Court disbelieved the plea of the appellant regarding the subsequent payment of Rs.2.25 lacs and, holding that the appellant had not proved himself to be ready and willing to get the sale deed executed, dismissed the suit in its entirety. Learned counsel for the appellant has urged that the main thrust of the case of the respondents No.1 to 3 was the registered notice which they allegedly sent to the appellant. He has further argued that the learned Appellate Court has found that the appellant had admitted the receipt of the said notice. However, this finding is against the record since there is no such admission by the appellant and rather the said notice was not even confronted to the appellant when he had appeared in witness box. In these circumstances, the finding of the learned Appellate Court is completely perverse. Apart from this argument, it must be noticed that the questions proposed in this appeal are as follows:- (i) Whether presumption of service of registered notice can be drawn prior to the expiry of 30 days period ? (ii) Whether after the proof of execution of agreement to sell, the Courts below could have declined specific performance once the appellant was ready and willing to perform his part of the contract and had already paid substantial amount towards the sale consideration ? (iii) Whether the Courts below have misread and misinterpreted the evidence ? (iv) Whether documentary evidence can be ignored / discarded in view of the oral evidence ? CM No.7346-C of 2008 ::4:: CM No.7347-C of 2008 CM No.7346-C of 2008 and RSA No.2518 of 2008 (O & M) Learned counsel has further argued, developing question No.(ii) that at the very least it has to be accepted that after both the parties allowed the original stipulated date to expire, it had to be held that time was not the essence of the contract and thus, the proven presence of the appellant before the Registrar on 31st March, 1999 would entitle the appellant to a decree for specific performance. With respect to the first argument of learned counsel for the appellant, aside from the issue that it is a pure question of fact, it has to be noticed that in a situation where there are many pieces of evidence and a Court draws its conclusion which is otherwise correct but based on an erroneous appreciation of one fact, the said finding of fact cannot be termed to be so perverse so as to render it liable for interference under Section 100 CPC. Even the decision on question No.(ii) proposed would depend a lot on whether the appellant was proved to have paid a further amount of Rs.2.25 lacs on the original stipulated date as alleged by him. The learned Appellate Court has found that no such payment was proved by the appellant. Learned counsel has not been able to persuade me that this finding is also either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. With regard to the argument that there was no fixed date and thus, the presence of the appellant on 31st March, 1999 before the Sub-Registrar would entitle him to a decree for specific performance, the same also cannot hold water. It is not as if the appellant had issued any notice to the respondents to appear before the Sub-Registrar on 31st March, 1999. Further, no evidence was led by the appellant to prove that on the 31st March, 1999, he was in possession of sufficient funds to purchase the stamps, etc. and to pay the remaining amount of CM No.7346-C of 2008 ::5:: CM No.7347-C of 2008 CM No.7346-C of 2008 and RSA No.2518 of 2008 (O & M) consideration. In the circumstances, on a preponderance of probability, what seems to have happened is that though the sale deed could not be executed, the blame therefor cannot be attributed either solely to the plaintiff or solely to the defendant. Thus, even while rejecting the appeal of the appellant, it would be in the interest of justice if that portion of the decree of the trial Court is restored whereby respondents were directed to refund the earnest money. However, instead of ordering refund of Rs.4.25 lacs/-, refund of Rs.2 lacs is ordered. It must be noticed that by now the respondents should have enjoyed the amount of Rs.2 lacs for a period of 12 years. Thus, it would also be in the interest of justice to grant some interest to the appellant. On a conspectus of the entire factual matrix it would be in the interest of justice if the respondents are directed to pay interest at the rate of 8% p.a. from the date of agreement to sell viz. 22.7.1998 till the date of payment. This amount would be payable by vendors viz. respondents No.1, 2 and 3. This appeal is partly allowed in the above terms. Since the main appeal has been decided, the civil miscellaneous application, if any, shall stand disposed of accordingly. (AJAY TEWARI) JUDGE May 06, 2010 sukhpreet