RSA No.1646 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1646 of 2007 Date of Decision:06.11.2008 Naresh Kumar & anr. ....appellants Versus Ashok Kumar .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.S.K.Gautam, Advocate for the appellants Mr.J.K.Goel, Advocate for the respondent **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession by way of specific performance of agreement to sell dated 22.03.2004 in respect of the house in dispute and further for permanent injunction restraining the defendants from alienating the above said property in any manner and from changing the nature of the suit property, has been decreed. As per the averments made in the plaint, defendant No.1 was owner of the property in dispute. He, through his attorney Smt.Satwinder Kaur defendant No.2 agreed to sell the suit property in favour of plaintiff on 22.03.2004 for a total sale consideration of Rs.2,61,000/- and received an amount of Rs.61,000/- as earnest money out of the total sale consideration. The remaining amount was to be paid by the plaintiff to the defendants at the time of the registration of sale deed i.e.31.05.2004 as per the terms and conditions mentioned in the aforesaid RSA No.1646 of 2007 2 agreement dated 22.03.2004. It is further averred in the plaint that on 20.05.2004, the plaintiff came to know that the defendants were to pay the electricity bill amounting to Rs.90,000/- to the Uttar Haryana Bijli Vitran Nigam(UHBVN). The defendants were asked to clear the above said amount. The plaintiff also got served a legal notice upon defendant No.2 on 25.05.2004. Reply to the above said notice was sent by defendant No.2 on 29.05.2004. However, defendant neither showed the clearance of the electricity bills nor showed the NOC regarding selling of the above said property before 31.05.2004. On 31.05.2004, as per aforesaid agreement, the plaintiff went to the Tehsil Office, Panipat along with balance sale consideration, stamp charges and other miscellaneous expenses to get executed the sale deed regarding the suit property in his favour, but defendant did not turn up till 4.30 p.m. Hence, plaintiff got marked his presence before Sub-Registrar, Panipat. The plaintiff was and is still ready and willing to perform his part of the contract but the defendants are avoiding the same. Hence the present suit. On notice, the defendants filed the joint written statement contesting the suit by taking preliminary objections that defendant No.2 had agreed to sell the suit property to the plaintiff and the date of registration was fixed as 31.05.2004. On 20.05.2004, the defendants requested the plaintiff to arrange the money for registration so that the sale deed can be registered on 31.05.2004 but the defendants were surprised on receipt of the notice sent by the plaintiff regarding electricity charges. The said notice was duly replied to stating therein that property in question is free from all encumbrances and the defendants will remain present in the Office of Registrar, Panipat for getting the sale deed registered in favour of plaintiff on 31.05.2004. However, the plaintiff did not appear in the office of Registrar, Panipat. Finding no alternative, the defendant got the presence RSA No.1646 of 2007 3 marked in the Office of Registrar, Panipat and showed her bona fide for execution of the sale deed. The defendants also wrote in the notice that if the plaintiff failed to come to the office of Registrar, Panipat, along with balance sale consideration of Rs.2,00,000/- for getting the sale deed registered, then the earnest money given by the plaintiff will be forfeited and agreement to sell will be cancelled automatically. On merits, the suit was contested on the grounds that since the plaintiff had failed to perform his part of contract as agreed to, the earnest money stood forfeited and the agreement to sell had been cancelled. The defendants had to suffer a great loss of Rs.10,00,000/- by not performing the part of the contract by the plaintiff in not paying the balance sale consideration of Rs.2,00,000/-. It was further averred that nothing was due towards the defendants Satvinder Kaur and Naresh. The premises was free from all encumbrances and there was no objection in transferring the property, but it is the plaintiff who could not arrange the money for getting the sale deed registered in his (plaintiff)favour. Other averments of the plaintiff were also denied. From the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff is entitled to a decree for possession by way of specific performance of agreement to sell dated 22.03.2004 and the consequential relief of permanent injunction as prayed for on the ground as averred in the plaint? OPP 2. Whether the suit is not maintainable in the present form? OPP 3. whether the defendants are entitled to special compensatory costs u/s 35 A of CPC? OPD RSA No.1646 of 2007 4 4. Relief. After hearing learned counsel for the parties and perusing the record, the trial court came to the conclusion that the plaintiff was always ready and willing to perform his part of agreement and that it were the defendants who committed default. Issue No.1 was thus decided in favour of the plaintiff. Issues No.2 and 3 were not pressed. In consequences of findings recorded under issue No.1, the suit of the plaintiff was decreed with costs. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendants filed an appeal which was dismissed by the Additional District Judge, Panipat, vide impugned judgment and decree dated 03.05.2007. While dismissing the appeal, the Lower Appellate Court observed as under: “Having heard the learned counsel for the parties and going through the evidence on the file, I concur with the learned trial Court that from the evidence on the file, it is proved that the plaintiff was always ready and willing to perform his part of the agreement and he is still ready. As held by the Apex court in “N.P.Thiruqnanam vs.Dr.R.Jagan Mohan Rao, 1996(1)CCC 27” referred to by the learned trial Court to adjudge whether the plaintiff is ready and willing to perform his part of the agreement the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. In this case, the keenness of the plaintiff to perform his part of the agreement is proved from the fact that as soon as he come to know that some dues towards electricity charges are due from the defendants pertaining to suit property, he served the defendant No.2 with a legal notice dated 25.05.2004 calling upon them to pay the electricity charges and to obtain no objection certificate from RSA No.1646 of 2007 5 the department concerned before the last date fixed for execution and registration of the sale deed i.e.31.05.2004. The fact that Rs.77,191/- towards electricity charges were due from the defendants pertaining to suit property is proved from the documents Ex.PW2/A and Ex.PW2/B. The present suit was filed on 20.07.2004 i.e.merely after 50 days of the last date fixed by the parties for execution and registration of the sale deed. Had the suit been filed after a long intervene, then it could be said that plaintiff was not ready and willing to perform his part of the agreement for any other reason, whatsoever. The stamp papers to file the present suit were purchased by the plaintiff on 02.07.2004. The Civil Courts were closed for summer vacations from 16th June to 15th July. It all shows that the present suit was filed by the plaintiff without loosing any time. Therefore, even if affidavit Ex.PW1/D is not read into evidence, the other evidence on the file is sufficient to prove that plaintiff was always ready and willing to perform his part of the agreement and is still ready. Therefore, findings recorded by the learned trial court on this issue are affirmed. “ Still not satisfied, the defendants have filed the instant appeal challenging the aforesaid judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the Courts below have erred at law while holding that the plaintiff- respondent was ready and willing to perform his part of the contract and has based its finding on the fact that there were some outstanding bills of electricity department against the property in dispute for which the plaintiff served notice dated 25.05.2004 upon the appellants calling upon them to pay the electricity charges and to obtain no objection certificate. According to the learned counsel for the appellants, there were no outstanding bills of electricity department against the property in dispute and the plaintiff has failed to prove this fact from the evidence on record. PW2 Sumer Lal, RSA No.1646 of 2007 6 LDC, Electricity Department has admitted in his cross-examination that he cannot say that who is the owner of the property regarding which notices were issued by the department and therefore it cannot be concluded that the bills belong to the suit property. Hence the plaintiff who himself was not ready and willing to perform his part of the contract had just concocted a story of pending bills of electricity charges of the property in dispute. The contention of the appellants is that in fact the bare averment in the plaint or in the statement in examination-in-chief is not sufficient to arrive at a finding as to whether the plaintiff-respondents were all along and are still ready and willing to perform their part of the contract as is mandatorily required under Section 16(C)of the Specific Relief Act. The learned counsel has further argued that the amount of consideration which the plaintiff has to pay to the defendants must necessarily be proved to be available. The learned counsel for the appellants has relied upon judgment of the Apex Court in case “N.P.Thirugnanam vs.Dr.R.Jagan Mohan Rao, 1996(1)CCC 27” and Umabai & anr.versus Nilkanth Dhondiba Chavan 2005(2)Civil Court Cases 445 in support of his pleas. On the other hand, learned counsel for the respondent has supported the findings of the Courts below and has argued that the Courts below on appreciation of evidence have recorded a finding of fact that the plaintiff-respondent was and is still ready and willing to perform his part of the contract and it has been proved from his conduct that he was and is continuously ready to perform his part of the contract. I have heard learned counsel for the parties and perused the record. I find no force in the contention raised by the learned counsel for the appellants. While affirming the findings of the trial Court, the Lower Appellate Court found from the evidence on record that as soon as the plaintiff-respondent came to know that a sum of Rs.90,000/- towards RSA No.1646 of 2007 7 electricity charges was due from the defendants pertaining to suit property, he called upon the appellants by serving a notice dated 25.05.2004 calling upon them to pay the electricity charges and to obtain no objection certificate from the department concerned before the last date fixed for execution and registration of the sale deed i.e.31.05.2004. The fact that Rs.77,191/- towards electricity charges were due from the defendants pertaining to the suit property is proved from the documents Ex.PW2/A and PW2/B. The present suit was filed on 20.07.2004 i.e.merely after 50 days of the last date fixed by the parties for execution and registration of the sale deed. The stamp papers to file the present suit were purchased by the plaintiff on 02.07.2007. The Civil Courts were closed for summer vacations from 16th June to 15th July. It all shows that the present suit was filed by the plaintiff without losing any time. Thus, from the conduct of the appellants, readiness and willingness of the plaintiff to perform his part of the contract right from the date of the execution till the date of the decree, has been proved. It is the positive case of the plaintiff-respondent that he was present in the office of Sub-Registrar on 31.05.2004 with the balance amount of sale consideration and the other necessary expenses and he also got marked his presence. There is no evidence to rebut the said stand of the plaintiff-respondent. No doubt, the respondents have taken the plea that the plaintiff-respondent was not having the balance sale consideration ready as on 20.05.2004, and they requested the plaintiff to arrange for the money for execution and registration of the sale deed and instead received a notice from the plaintiff asking them to pay the electricity charges. However,from the plea taken by the appellants, it cannot be concluded that the plaintiff-respondent was not having the balance sale consideration ready on the last date of execution of the sale deed. The Judgments of the Hon'ble Apex court do not help the appellants in the facts RSA No.1646 of 2007 8 and circumstances of the case. In any case, on appreciation of evidence, the Courts below have recorded a concurrent finding of fact. I find no illegality or infirmity in the said findings. No substantial question of law arises. No merits. Dismissed. (RAKESH KUMAR GARG) JUDGE 06.11.2008 neenu