IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 356 of 2010. Decided on: 16th August, 2010. Pohu Ram. …Appellant/defendant. -Versus- Karnail Singh. …Respondent/defendant. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant. : Mr. Dinesh Bhanot, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): This Regular Second Appeal is directed against the judgment and decree of the learned District Judge, Solan, Camp at Nalagarh, District Solan, rendered in Civil Appeal No. 11-NL/13 of 2009, dated 13.05.2010. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) filed a suit for specific performance of contract. It is averred by the plaintiff that the appellant/defendant (hereinafter referred to as “the defendant” for convenience sake) was interested to sell the suit property to the plaintiff and the plaintiff was interested to purchase the same. The agreement to sell was executed and reduced into writing for a sale consideration of Rs.2,70,000/- between the parties on 04.05.2006, which was signed by the witnesses. Plaintiff paid a sum of Rs.1,35,000/- to the defendant as earnest money at the time of execution of agreement and the 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. possession was delivered to the plaintiff by the defendant on the same day. It is further averred that the parties had agreed to execute the sale deed on or before 04.08.2006 after payment of remaining sale consideration. It was agreed that in case the purchaser-plaintiff failed to perform his part of the contract, the earnest money so paid shall stand forfeited. The plaintiff procured the copies of the revenue record and on 04.08.2006, he waited for the defendant in the office of Sub Registrar, Nalagarh till 5:00 P.M. The plaintiff has prayed for the relief of possession by way of specific performance of contract dated 04.08.2006 or in the alternative, he had prayed for the relief of damages on account of non-performance of contract. The plaintiff got issued a legal notice on 08.08.2006 and fixed the date, i.e., 23.08.2006 for execution of sale deed within fifteen days on receipt of notice. However, the defendant did not turn up on 23.08.2006. The plaintiff again remained present in the office of Sub Registrar and sworn an affidavit to mark his presence. 3. The suit was resisted by the defendant. He has admitted that the plaintiff had paid a sum of Rs.1, 35, 000/- on 04.05.2006. He has contended that the sale deed could not be executed since he could not have given specific portion of the suit property to the plaintiff and no possession was delivered. He further contended that it was the plaintiff who was not ready and willing to perform his part of the contract since he did not turn up on 04.08.2006 in the office of Sub Registrar, Nalagarh to perform his part of sale agreement. He had sworn an affidavit before the Executive Magistrate, Nalagarh to prove that he remained present in the office of Sub Registrar, Nalagarh between 10:00 A.M. to 4:30 P.M. The trial Court framed issues on 23.04.2007. The trial Court after appreciating the evidence on record, decreed the suit on 06.11.2009. 4. The defendant preferred an appeal before the learned District Judge, Solan on 25.11.2009. He dismissed the same on 13.05.2010. Hence, this Regular Second Appeal against the judgment and decree dated 13.05.2010. 5. Mr. Dinesh Bhanot, learned counsel for the appellant has strenuously argued that the Courts below have mis-read and mis-interpreted the documentary evidence brought on record by the parties. 6. I have heard Mr. Dinesh Bhanot, learned counsel for the appellant at length. 7. Plaintiff has appeared as PW-1. He has sworn an affidavit Ex.PW1/A, wherein he has supported the contents of the plaint. According to him, agreement was executed on 04.05.2006 and Rs.1,35,000/- was handed-over to the defendant on the same day. The remaining amount of Rs.1,35,000/- was agreed to be paid on the date of registry, i.e., 04.08.2006. He remained in the office of Sub Registrar on 04.08.2006, but the defendant did not come to execute the sale deed. He had sworn an affidavit, which was executed by Notary Public, Nalagarh to prove his presence in the office of Sub Registrar, Nalagarh. He has further deposed that he has served a legal notice upon the defendant to execute the sale deed. 8. Defendant has appeared as DW-1 and sworn an affidavit Ex. DW1/A. He has supported the contents of written statement. He has deposed that he agreed to sell one biswa of land for a sum of Rs.2,70,000/- on 04.05.2006 and an amount of Rs.1,35,000/-was received by him as earnest money. According to him, he waited for the defendant in the office of Sub Registrar, Nalagarh on 04.08.2006 from 10:00 A.M. to 4:30 P.M. He also sworn an affidavit before the Executive Magistrate, Nalagarh to prove his presence in the office of Sub Registrar Nalagarh. Plaintiff has also placed on record copy of the Jamabandi for the year 2000-2001, Ex. P-2. 9. It is not in dispute that the agreement was entered into between the parties on 04.05.2006. The total consideration was for a sum of Rs.2,70,000/-. The defendant has received a sum of Rs. 1,35,000/- on 04.05.2006. A copy of the agreement is Ex. P-1. The remaining amount of Rs.1,35,000/- was to be received by the defendant on or before 04.08.2006 and sale deed was to be executed. The affidavit sworn by the plaintiff before the Notary Public, Nalagargh is Ex.P-3 and the affidavit sworn by the defendant before the Executive Magistrate, Nalagarh is Ex.DA. Plaintiff has also issued legal notice to the defendant on 02.08.2006 vide Ex. P-4. The same was duly received and replied by the defendant on 18.08.2006 vide Ex.DB. Plaintiff has remained present in the office of Sub Registrar Nalagarh on 04.08.2006 and an affidavit to this effect was notarized by the Notary Public, Nalagarh on 04.08.2006. DW-1 has deposed that he was not ready and willing to execute the sale deed registered. It is not on record that the defendant had at any time called upon the plaintiff for cancellation of the agreement. There is no merit in the contention of Mr. Dinesh Bhanot, learned counsel for the appellant that the learned Courts below have not correctly appreciated Ex. P-3 and Ex. DA. Ex.P-3 has been notarized before the Notary Public at Nalagarh. Ex.-DA has been sworn before the Executive Magistrate, Nalagarh. What is to be seen in the present case, is whether the parties were ready and willing to perform their part of the contract. It is evident from the evidence brought on record by the plaintiff that he was ready and willing to perform his part of the contract by taking all the necessary steps. He was present before the office of Sub Registrar, Nalagarh on 04.08.2006. He has issued a legal notice to the defendant to perform his part of the agreement on 08.08.2006, to which the reply was filed by the defendant on 18.08.2006 vide Ex. DB. 10. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge August 16, 2010. (bhupender)