IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1091 of 2009 (O&M) Date of Decision: 9.3.2009 Surja and others. ....... Appellants through Shri Sudhir Mittal,Advocate. Versus M/S New Hind Enterprises Pvt.Ltd.,New Delhi and another. ....... Respondents through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal is directed against the judgments and decrees dated 6.10.2008 and 20.1.2009 passed respectively by the Civil Judge (Senior Division), Sonepat (hereinafter described as `the trial Court') and the Additional District Judge, Sonepat (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiffs-respondents was decreed and the appeal of the defendants-appellants was dismissed. The respondents filed a suit for specific performance of agreement to sell dated 1.9.2004. It was their case that the appellants were absolute owners in possession of agricultural land measuring 34 kanals 14 marlas situated within the revenue estate of Village Fazilpur, Tehsil & District Sonepat, fully detailed in paragraph no.6 of the plaint. The R.S.A.No.1091 of 2009 (O&M) -2- .... appellants were stated to have agreed to sell the said land and agreement dated 1.9.2004 was executed by them in favour of respondent no.1 and so was a memorandum of understanding with respondent no.2 and application in Form LC-1 for obtaining license from the office of Director, Town & Country Planning, Haryana, Chandigarh supported by Power of Attorney in favour of nominee(s) of the respondents for that purpose. The sale consideration was fixed at Rs.24 lacs per acre and the total when calculated in this manner, came to Rs.1,04,10,000/-. A sum of Rs.10,41,000/- was given to the appellants as earnest money in the shape of cash and cheques and the balance sale consideration was to be paid at the time of execution of the sale deed which was to be done within a period of six months from the date of agreement to sell, i.e.,on or before 2.3.2005. The appellants, however, failed to abide by the terms of the agreement to sell and as a result, the respondents had to file the suit. It was also pleaded that on 2.3.2005, the officials of the respondents were present in the office of the Sub Registrar, Sonepat with entire sale consideration, but the appellants did not turn up. Upon notice, the appellants filed their written statement resisting the claim of the respondents. It was pleaded that respondent no.1 with whom the agreement to sell had been executed, had no role to play in the case as both the respondents were separate entities. The execution of the agreement was denied and it was averred that Jai Bhagwan son of Chhote Lal and Shamsher Singh Ahlawat, residents of Village Fazilpur had played fraud with them by obtaining their thumb impressions on nineteen R.S.A.No.1091 of 2009 (O&M) -3- .... typed papers which were blank on the pretext that the rate had not been finalized and an assurance was given to them that a plot of 500 yards s against each acre would be provided free of cost and the profit of the colonizer will be distributed between them and respondent no.1 and that they voluntarily offered to take back the amount paid to them by respondent no.1. It was further pleaded that the details of the Directors, Chairman and Managing Director of respondent no.1 was never disclosed to them and Shri S.C.Wadhwa had no authority to file the instant suit and no resolution was passed in his favour. The authority of Shri T.P.Chauhan, who had signed the plaint, was also questioned on the basis that no resolution existed in his favour. The competence of the respondents to develop a colony was also disputed on the ground that they did not have a proper licence. It was averred that they were share holders of the land in question and were not absolute owners, which was ancestral in their hands and that they did not have any right to sell the same. They had pleaded that the memorandum of understanding and the application in Form LC-1 were never disclosed to them. Fraud was pleaded to deny the agreement to sell. The parties went to trial on the following issues:- 1. Whether the plaintiffs are entitled to possession of the suit property by way of specific performance of the agreement to sell dated 1.9.2004?OPP 2. Whether the suit of the plaintiffs is not maintainable in the present form nor the plaintiffs have any locus standi to file the same?OPD R.S.A.No.1091 of 2009 (O&M) -4- .... 3. Relief. On appraisal of the oral as well as documentary evidence available before it, the trial Court concluded that the agreement to sell had been validly executed and the fraud as pleaded by the appellants had not been proved. It was further concluded that the consideration of earnest money had validly been passed on to the appellants as they had received the same through cheques. It was also found that the respondents had been successful to establish that they were always ready and willing to perform their part of contract, but it were the appellants, who defaulted on their part, as a result of which the suit was decreed and the appellants were directed to execute the sale deed within two months on receipt of balance sale consideration. On appeal, the findings of the trial Court were affirmed by the First Appellate Court. Learned counsel for the appellants assailed the findings of the Courts below by contending that there was no valid agreement between the parties and at best, it could be termed to be an illegal agreement as there was no resolution passed by the respondents to enter into the said agreement. It was further contended that only certified copy of the resolution was produced and the original was never produced before the Courts below and the said certified copy could not have been considered by them. A certified copy of a document ipso facto could not be considered for adjudication upon a matter. Learned counsel for the appellants submitted that the said document which is a certified copy of the resolution was never proved in R.S.A.No.1091 of 2009 (O&M) -5- .... accordance with law. He also argued that the readiness and willingness of the respondents was also not proved. No official of the bank was produced to show that they were ready with the balance sale consideration on 2.3.2005 which was the date fixed for execution of the sale deed and in this way, the findings recorded by the Courts below are perverse and deserve to be set aside. I have heard the learned counsel for the appellants and have perused the impugned judgments. Even though the appellants had denied the execution of the sale deed and pleaded fraud, yet, strangely enough their own witness, i.e., DW1- Seet Singh did not dispute the execution of agreement, Exhibits P10 and P11. Rather, a categoric admission was made by him that he and his brother had entered into an agreement to sell with the respondents and that negotiations were done through one Jai Bhagwan. He also admitted that they had received earnest money by way of cheques & cash and also further that they had encashed the cheques received from the respondents by depositing the same in their bank accounts. In this view of the matter, the contention of the learned counsel for the appellants falls flat on its face. Not only does the plea of fraud stands negated by the testimony of DW1, but rather positive fact of the execution of the agreement to sell stands established by his admission, who was also one of the signatories of the agreement. The amount in question also stood utilized in the bank by the appellants. R.S.A.No.1091 of 2009 (O&M) -6- .... In a suit for specific performance, the relevant factors which have to be determined are the validity of the agreement to sell, the passing of consideration pursuant thereto and the readiness and willingness of the parties to perform their part of contract. When all these three factors are considered on the facts of the instant case, then it becomes amply clear that the appellants themselves admitted the agreement to sell belying any other plea that may have been taken by them in their written statement. Similarly, the passing of consideration as earnest money by way of cheques of the said amount also stand established. In so far as the readiness and willingness of the respondents is concerned, it has been noticed that the officials of the respondents were present in the office of the Sub Registrar, Sonepat on the relevant date and Exhibit P1/A is the affidavit filed by PW1-T.P.Chauhan,which could never be rebutted by the appellants nor could it be off-set by any other evidence on record. In the aforementioned affidavit, there is specific reference to the drafts and cheques which were drawn on the UTI Bank for various amounts mentioned therein and which were meant to be paid as balance sale consideration to the appellants. Thus, all the three factors conclusively stood proved in favour of the respondents. The only plea that now is sought to be raised to wriggle out from the agreement in question is that Shri S.C.Wadhwa and Shri T.P.Chauhan were not authorised to execute the agreement to sale on R.S.A.No.1091 of 2009 (O&M) -7- .... behalf of the respondents as there was no auhtorisation in their favour. There are on record the relevant authorisations issued in favour of the officials of the respondents by their directors. Resolutions Exhibits P3 and P4 were proved on record to that effect. These were the copies of the resolutions passed by the directors of the respondents authorising Shri S.C.Wadhwa and Shri T.P.Chauhan,which documents were attested by the Notary Public. Assuming for the sake of arguments that the same were not proved in accordance with law and wee not exhibited, yet, I am of the opinion that this, at best, can be an irregularity and this does not lie in the moutht of the appellants to say so after having agreed to sell their land and after having accepted the earnest money. If there is any violation of the agreement to sell, that itself does not render the agreement bad,but it will open the door for the appellants to seek appropriate remedy after establishing such violation. But, that has not been done by them and rather they have chosen to controvert the agreement totally on the plea, which, at best, can be termed to be a dishonest attempt to wriggle out of the same. Therefore, the consistent and concurrent findings of fact recorded by the Courts below cannot be termed to be perverse warranting any interference in the Regular Second Appeal. No substantial question of law arises for determination in this appeal which is held to be devoid of any merit and is dismissed. March 09,2009 ( Mahesh Grover ) “SCM” Judge