RSA No.2890 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 2890 of 2010 (O&M) Date of decision: May 10,2011 Amrik Singh .....Appellant Versus Sarwan Singh and Others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.P.K.Gupta, Advocate for the appellant. Mr.Ram Bilas Gupta, Advocate for the respondents. **** SABINA, J. Plaintiff-Amrik Singh had filed a suit for possession by way of specific performance of an agreement to sell dated 22.2.1996. The case of the plaintiffs, in brief, was that the defendant No.1 was owner of the suit land and had executed an agreement to sell qua the suit land in favour of the plaintiff on 22.2.1996 for a consideration of ` 7,32,000/-. ` 50,000/- were paid towards earnest money by the plaintiff to defendant No.1 at the time of execution of the agreement to sell. The sale deed was to be executed on or before 14.6.1996. However, on the said date, the date for execution of the sale deed was extended to 19.7.1996 and ` 1,83,000/- were again paid to defendant No.1 by the plaintiff on RSA No.2890 of 2010 (O&M) 2 8.6.1996. The date for execution of the sale deed was again extended to 17.1.1997. On the said date, the plaintiff had approached defendant No.1 for execution of the sale deed but defendant No.1 had failed to do so. Defendant No.1, in his written statement, admitted the execution of the agreement to sell in question. It was averred that he had only received ` 50,000/- towards earnest money. He had remained ready and willing to perform his part of the contract. Plaintiff had failed to appear before the Sub Registrar on 17.1.1997 although the answering defendant remained present there on the stipulated date. Defendant No.2 was proceeded ex-parte. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to recover the possession of the suit land by way of specific performance of agreement to sell dated 22.2.1996 on payment of balance sale consideration of Rs.4,99,000/- and other expenses?OPP 2. Whether in the alternative the plaintiff is entitled to recover a sum of Rs.4,66,000/- (i.e. Rs.2,33,000/- as earnest money and Rs.2,33,000/- as damages) from the deft. alongwith interest at the rate of 12% per annum from the date of filing of this suit till the realization of the suit amount?OPP 3. Whether the instant suit filed by the plaintiff is not maintainable?OPP 4.Whether the plaintiff is estopped from filing the present RSA No.2890 of 2010 (O&M) 3 suit by his act and conduct?OPD 5.Whether the instant suit is barred by law of limitation?OPD 6. Relief” Vide judgment and decree dated 1.2.2005, the Additional Civil Judge (Senior Division) decreed the suit of the plaintiff for recovery of ` 2,33,000/- along with interest. Aggrieved by the said judgment and decree, defendant No.1-Sarwan Singh preferred an appeal and plaintiff preferred cross-objections. Vide judgment and decree dated 3.2.2010, the Additional District Judge dismissed the cross-objections filed by the plaintiff and allowed the appeal filed by defendant No.1 . Consequently, the suit filed by the plaintiff was dismissed. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the Courts below had erred in dismissing the suit of the plaintiff. Plaintiff had been successful in proving the due execution of the agreement to sell in question. Plaintiff was always ready and willing to perform his part of the contract but defendant No.1 had failed to execute the sale deed in favour of the plaintiff. Learned counsel for the respondents has submitted that the plaintiff had failed to establish that he was ready and willing to perform his part of the contract and, hence, the suit of the plaintiff was liable to fail. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Plaintiff had filed the suit for specific performance of agreement to sell dated 21.2.1996. The execution of the agreement RSA No.2890 of 2010 (O&M) 4 to sell in question is not disputed. The question that requires consideration is as to whether plaintiff was ready and willing to perform his part of the contract. The plaintiff had failed to establish that he had appeared before the Office of the Sub-Registrar on 17.01.1997 i.e. the stipulated date for execution and registration of the sale deed. In normal course, the plaintiff should have appeared before the Sub Registrar on the stipulated date to show his bona fide that he was ready and willing to perform his part of the contract. Plaintiff could have got his attendance marked before the Sub Registrar on the stipulated date to substantiate his plea that he was always ready and willing to perform his part of the contract. The plaintiff had issued a notice to the defendants on 16.7.1997 to execute the sale deed in his favour. The said notice was issued by the plaintiff much after the stipulated date fixed for execution and registration of the sale deed. The issuance of notice dated 16.7.1997, thus, does not advance the case of the plaintiff to the effect that he was ready and willing to perform his part of the contract. Admittedly, there was a clause in the agreement to sell dated 2.2.1996 that in case the vendee fails to get the sale deed executed and registered in his name then the earnest money paid by him shall stand forfeited. In the present case, since the plaintiff had failed to establish that he was ready and willing to perform his part of the contract,hence he was not entitled to recover the earnest money paid by him as he was himself guilty of breach of contract. As per Section 16 of the Specific Relief Act, 1963, a person who fails to perform his part of the contract, cannot seek enforcement of specific RSA No.2890 of 2010 (O&M) 5 performance of a contract. In these circumstances, learned First Appellate Court had rightly held that the suit of the plaintiff must fail. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge May 10, 2011 arya