IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Suit No.13 of 2005. Date of decision: 29.03.2010. Kailash Chand ….Plaintiff Versus Shri Jagidish Chand & Others ….Defendants Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Plaintiff: Mr.Sanjeev Kuthiala, Advocate. For the Defendants: Mr.Ramakant Sharma, Advocate. Dev Darshan Sud,J. The plaintiff has instituted this suit praying for a decree for specific performance on the ground that an agreement to sell Ex.PW-2/A was entered into between the parties for the suit land as described in para-2 of the plaint namely, land measuring 8 Bighas and 11 Biswas situated in village Manjholi, Pargana Bir Plassi, Tehsil Nalagarh District Solan, land measuring 6-13 Bigha bearing Khasra No.551/348 (6 Bigha 13 Biswa) comprised in Khewat/Khatauni Nos.27 min/28 min, land measuring 0-7 Biswa bearing Khasra No.554/355, (0-7 Biswas comprised 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 in Khewat Khatauni No.27 min/28 min);land measuring 1- 1 Bigha bearing Khasra No.556/386 (1 Bigha 1 Biswa) comprised in Khewat Khatauni No.27 min/28 min); 2/3rd share out of land measuring 0-8 biswa bearing Khasra No.552/348 (0-8 Biswas) comprised in Khewat Khatauni No.28 min/30 min; 2/3rd share out of land measuring 0-1 Biswa bearing Khasra No.553/355 (0-1 Biswa) comprised in Khewat Khatauni No.28 min/30 min and 24/54th share out of land measuring 0-9 Biswa bearing Khasra No.350 (0-9 Biswas), comprised in Khewat Khatauni No.35/37 min, all this land is situated in village Bir Plassi, Hadbast No.101, Pargana Plassi, Tehsil Nalagarh, District Solan. It is pleaded that the plaintiff is ready and willing to perform his part of the contract, but it was the defendant who subsequently dodged the agreement and did not honour the commitment made. The total consideration was Rs.17.10 lac, out of which Rs.two lac had already been paid by the plaintiff to the defendants which fact is not denied. On the pleadings of the parties this Court framed the following issues:- “(1) Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. (2) Whether the plaintiff is entitled for a decree of specific performance of the contract dated 26th September, 2003? OPP. 3 (3) Whether the plaintiff is estopped from filing the suit on account of his acts, omission, commission and acquiescence, as alleged? OPD. (4) Whether the plaintiff is entitled to the alternative relief of damages, if so, of what amount and rate of interest? OPP. (5) Whether the plaintiff has no cause of action against the defendants? OPD. (6) Relief.” Issue No.1: This issue is decided against the defendants. The plaintiff has affixed advalorem court fee on Rs.17.10 lac which is the value of the suit land. There is no evidence on the record to prove that the plaintiff has either undervalued the suit or has not affixed the proper court fee on the plaint. Ex.PW-2/A, which is the agreement to sell, also fixes the consideration of the suit land at Rs.17.10 lac. This issue is, therefore, decided in favour of the plaintiff and against the defendants. Issues No.2 to 5: All these issues are taken up together for decision as they are vital for determination of the rights of the parties to the suit; namely; as to whether the time was the essence of the contract and as to whether the plaintiff is entitled to a decree for specific performance. On the first point to be determined as to whether the time was the essence of 4 the contract, all that needs to be said is that the reading of Ex.PW-2/A itself shows that the parties have dispensed with the requirement of treating time as the essence of the contract. After having executed the agreement for consideration of Rs.17.10 lac and acknowledging the fact that a sum of Rs.two lacs was paid, there is an endorsement on the back of the agreement that on 27.4.2004, the parties had mutually agreed that 5 or 6 lacs rupees will be paid to the defendants on 10.5.2004 and the remaining by 30th May, 2004, which reads:- “Aaj Dinank 27.4.04 ko dono partion ki sehmati se yeh tay kiya gaya ki 5 lakh (panch lakh) ya 6 lakh (chhe lakh) rupaya ki rashi ka bhugtan 10.5.2004 ko kar diya jayega aur bakaya rashi 30 May, 2004 tak puri de di javegi.” In Madhya Pradesh Housing Board vs. Progressive Writers and Publishers, (2009)5 SCC 678, the Supreme Court holds:- “27. It is fairly well settled that time is not normally an essence of any agreement qua immovable properties and even if there was an express covenant of time being an essence, the overall agreement have to be looked at to determine whether time was the essence. Whether time is the essence of the contract would, therefore, be a 5 question of fact to be determined in each case and merely expression of the stipulated time would not make time an essence of the contract.” This proposition has been established by a Constitutional Bench decision in Chand Rani vs. Kamal Rani, (1993)1 SCC 519, which was lateron followed in Balasaheb Dayandeo Naik (Dead) through LRs and Others vs. Appasaheb Dattatraya Pawar, (2008)4 SCC 464. There is nothing on the record to establish that the parties treated time as the essence of the contract as by mutual consent parties kept extending the time for payment of the consideration. On the question of readiness and willingness of the plaintiff to have performed his part of the contract, learned counsel appearing for the plaintiff submits that the evidence of the plaintiff who appeared as PW-2 is sufficient to establish this and places reliance on the judgment of the Supreme Court in Aloka Bose vs. Parmatma Devi and Others, (2009)2 SCC 582, urging that all that need be looked into is the pleadings of the parties holding that once the vendee had sent a notice after paying the initial amount, and lateron expressed his willingness to perform the contract, was not debarred from claiming a decree for specific relief. Learned counsel submits that the evidence of PW-2 itself establishes the fact 6 of readiness to perform the contract and as such he is entitled to decree for specific performance. I have scrutinized the evidence of the plaintiff. After having said that he was ready and willing to perform his part of the contract, I do not find that there is any evidence on the record to show as to whether the plaintiff was possessed of sufficient funds to pay the remaining consideration. He has not proved to be in possession of the remaining sale consideration of Rs.15 odd lacs or his capacity to raise this amount. He states that he has business in Nalagarh and in Solan but does not substantiate the same with any corroborative documentary evidence or testimony of any other witness to show that he was a man of means as pleaded by him. In these circumstances, I hold that the plaintiff although in his statement has stated that he is ready and willing to perform his part of the agreement but has not been able to prove or establish on record that he was possessed of sufficient funds which fact could have been established by evidence. In these circumstances, he is not entitled to a decree for specific performance. Having held so, I cannot allow the defendants to take advantage of the principles of unjust enrichment. He cannot walk away with two lac rupees. I must also add that the plaintiff has made a bald statement that he is entitled to damages of 15/20 7 lac rupees without in any manner linking the quantum with this income or the nature of work. The plaintiff has produced on record an affidavit sworn before the Notary Public to say that he had gone to the Sub Tehsil Office and waited there on 30.5.2004 and 31.5.2004, but the defendants did not turn up. This evidence cannot be accepted as the Notary Public has not been examined. For the same reasons, the affidavit filed by the defendants that even he was ready and willing to perform his part of the contract and that he was present in the Court premises on 31.5.2004 cannot be believed. Why and under what circumstances the Notary Public was not produced has not been explained on the record. In these circumstances, I hold that the plaintiff is entitled to a decree for a sum of Rs.two lacs with interest at the rate of 10% per annum from the date of filing the suit i.e. 23rd March, 2005 till its realization. Let a decree in these terms be drawn up. There shall be no order as to costs. March 29, 2010 (Dev Darshan Sud) (aks) Judge.