IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2458 of 2011 (O&M) Date of decision: 8th July, 2011 Amrik Singh … Appellant Versus Neeta Sharma … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Arun Jain, Senior Advocate with Mr. Arnav Kumar, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) This is defendant’s regular second appeal. The appellant- defendant is an allottee and owner of Flat No.3155/2, 2nd Floor (MIG) measuring 801.65 square feet situated in Sector 44-D, Chandigarh. This flat was allotted to him by the Chandigarh Housing Board on 31st January, 1996. The appellant-defendant executed an agreement to sell on 14th October, 2005 for sale of the flat. The total consideration determined between the parties was Rs.14.00 lakh out of which Rs.2.00 lakh were paid as an earnest money and it was agreed that the balance was to be paid on the date when sale deed would be executed, i.e. on or before 28th April, 2006. It is also an admitted fact that the date for execution of the sale deed was mutually extended upto 28th June, 2006 and further upto 15th July, 2006. The appellant-defendant had also received an amount of Rs.30,000/- on 15th May, 2006 against a receipt from the respondent- plaintiff. It has also come in evidence that the respondent-plaintiff got sanctioned a loan of Rs.13.30 lakh from Punjab National Bank on 19th Regular Second Appeal No.2458 of 2011 (O&M) June, 2006. The No Objection Certificate from the Chandigarh Housing Board was issued in June, 2008. The respondent-plaintiff also stated that she appeared in the office of Sub Registrar, Union Territory Chandigarh on 17th July, 2006 as 15th and 16th July, 2006 were holidays and remained present there from 9.00 a.m. to 5.00 p.m. along with balance consideration amount but the appellant-defendant had not turned up to perform his part of the agreement. On the notice issued in the suit, the appellant-defendant raised a plea that the respondent-plaintiff was not ready and willing to perform her part of the agreement and that she had failed to arrange the balance amount of the sale consideration. After the pleadings concluded the trial Court had drawn the following issues: “1. Whether the agreement to sell dated 14.10.2005 was executed between plaintiff and defendant in respect of H.No.3155/2 as mentioned in the head note of the plaint, if so its effect? OPP. 2. Whether the plaintiff is entitled for decree for specific performance as alleged in the plaint? OPP 3. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaintiff is estopped by his own act and conduct? OPD 6. Whether the present suit is not maintainable? OPD 7. Relief.” The respondent-plaintiff herself appeared as PW-1 and tendered her affidavit Ex.PA along with the documents Ex.P1 to Ex.P11A. She further examined Jai Parkash, Higher Grade Assistant from the 2 Regular Second Appeal No.2458 of 2011 (O&M) office of Life Insurance Company as PW-2; Surinder Singh, Deputy Manager of the Bank as PW-3; Gurmukh Singh, a Clerk from the office of Sub Registrar as PW-4 and J.S. Bajaj, Manager of the Bank as PW-5. The appellant-defendant himself appeared as DW-1 and tendered his affidavit as Ex.DW/A along with other documents Ex.D1 and Ex.D2. He examined Gurmukh Singh, Clerk from the office of Sub Registrar as DW- 2 and Jaspal Singh as DW-3. Before this Court adverts to the facts and concurrent findings recorded by the Courts below it will be pertinent to notice that in the memo of appeal, following substantial questions of law have been drawn for consideration of this Court: “(i) Whether in the facts and circumstances of the instant case and once the plaintiff/respondent had failed to prove her readiness and willingness, the approach of the learned courts below in decreeing the suit for specific performance is not perverse? (ii) Whether in the facts and circumstances of the instant case and in view of the specific bar for selling the property for 10 years, the agreement to sell could be held enforceable? (iii) Whether in the facts and circumstances of the instant case the approach of the learned courts below in misreading and misconstruing the material documentary evidence on record is not illegal and unsustainable in law?” The trial Court returned following findings: (a) That the execution of agreement to sell in question is not in dispute; 3 Regular Second Appeal No.2458 of 2011 (O&M) (b) That the appellant-defendant had extended the time for execution of the sale deed from time to time; (c) That the appellant-defendant after having received Rs.2.00 lakh as earnest money has also received Rs.30,000/- from the respondent-plaintiff; (d) That the date of execution of sale deed is to be construed as 17th July, 2006, as 15th and 16th of July, 2006 were holidays being Saturday and Sunday; (e) That the appellant-defendant had taken active steps to obtain No Objection Certificate from the Chandigarh Housing Board for execution of the sale deed. The Court further observed as under: “20. … … … Thus it can be held that the extension of time for execution of sale deed took place with mutual consent… …” It has come in the evidence of the Bank officials that after the loan amount was sanctioned no other formality was to be completed and the demand draft was prepared in favour of the seller. Regarding the loan amount, J.S. Bajaj, Manager of the Bank appearing as PW-5 stated that “it was readily available to them (respondent-plaintiff) and was at the disposal to get the same at any time”. Thus, the trial Court held that the respondent-plaintiff had the capacity and was capable having the amount on the day when the sale deed was to be executed. The trial Court returned following finding: “27. … … … Here this Court deems it fit to point out the statement of DW3 as got recorded at the time of cross- 4 Regular Second Appeal No.2458 of 2011 (O&M) examination which duly corroborates the fact as stated by PW5 that the loan amount was available to plaintiff and all the formalities for the same were already completed by the plaintiff and nothing more was required to be done by the plaintiff.” The trial Court also took into consideration para No.8 of the affidavit Ex.DW/A or Ex.DW/1, where it was stated by the appellant- defendant as under: “he is not interested to sell the house to the plaintiff or any other person on the ground that at that time defendant was in dire need of money for the purpose of education of his daughter.” The lower appellate Court has concurred with the findings returned by the trial Court. Mr. Arun Jain, Senior Advocate assisted by Mr.Arnav Kumar, Advocate, appearing on behalf of the appellant-defendant has referred to the cross-examination of respondent-plaintiff wherein she stated that “I had gone to the office of Sub Registrar without consideration amount”. It is stated that in view of this admission by the respondent-plaintiff this Court should infer that she was not in a position to make the payment of balance consideration money and thus readiness and willingness on the part of respondent-plaintiff cannot be inferred. I am afraid, this contention cannot be accepted as totality of the attending circumstances is to be taken into consideration. A stray line in the cross-examination is not sufficient to demolish the entire case especially when both the courts below have rightly placed reliance upon the testimony of the Bank 5 Regular Second Appeal No.2458 of 2011 (O&M) officials namely Surinder Singh, Deputy Manager PW-3 and J.S. Bajaj, Manager PW-5. Secondly, it is contended that the flat in question was allotted to the appellant-defendant on 31st January, 1996 and as per the allotment letter, this flat could not be sold for a period of ten years. It is stated that therefore, any agreement to sell executed before the expiry of ten years is of no consequence. It has come in evidence that after the agreement to sell was executed on 14th October, 2005, the appellant-defendant had approached the Chandigarh Housing Board for grant of No Objection Certificate. The No Objection Certificate was granted in the month of June 2006. By that time the embargo of ten years was already over and there was no obstacle to execute the sale deed. Lastly, Mr.Jain has submitted that in case of repeated extension of time, this Court should be on guard to infer the intention of the respondent-plaintiff as to whether she was ready and willing to perform her part of the agreement or not. In the present case, repeated extension of time, though mutually agreed, has arisen on two scores. After the receipt of earnest money of Rs.2.00 lakh the appellant- defendant had also received Rs.30,000/- from the respondent-plaintiff and then the date was extended. Furthermore, the date was also extended as by that time the appellant-defendant had not been able to obtain No Objection Certificate from the Chandigarh Housing Board which is a pre-requisite for registration of the sale deed. After hearing the learned counsel at length and appreciating the oral as well as documentary evidence, this Court is of the view that the substantial questions of law projected by counsel for the appellant do not arise as they require mere re-appreciation and re-appraisal of the 6 Regular Second Appeal No.2458 of 2011 (O&M) evidence. In view of the concurrent findings of fact returned by both the courts below, no interference is warranted. Hence, there is no merit in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 8, 2011 rps 7