RSA No. 2110 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2110 of 2011 (O&M) Date of Decision: 13.5.2011. Ashok Kumar and others .......Appellants Vs. Swaran Bansal & others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Akshay Bhan, Advocate for the appellants. ..... SABINA, J. Plaintiff had filed a suit for specific performance of agreement to sell dated 13.11.2001. The case of the plaintiff in brief was that plaintiff had taken premises bearing SCO No. 156/6 Manimajra, Old Ropar Road measuring 33' x 10½' on rent. The property consisted of two parts. In the year 1990, the rear portion of SCO No. 156/6 was also taken on monthly rent to the tune of ` 3500/- and the same was later on enhanced to ` 5200/- per month. The plaintiff had taken the premises on rent from Ram Chander and Lajwanti. Both of them filed an ejectment petition against the plaintiff and the same was still pending. Earlier, one petition had been filed by the landlord and the same was decided against the plaintiff and ejectment order was passed and the appeal, filed by the plaintiff against the said order, was pending. After the death of Ram Chander, his wife had RSA No. 2110 of 2011 (O&M) -2- inherited the suit property on the basis of a will in her favour. On 13.11.2001, Lajwanti had agreed to sell the suit property to the plaintiff for a consideration of ` 17,00,000/-. ` 2,00,000/- were paid towards earnest money on the date of execution of the agreement to sell. Another sum of ` 2,00,000/- were again paid on 12.12.2001. The date for execution of the sale deed was settled between the parties as 15.3.2002. Lajwanti died on 18.1.2002. Ashok Kumar and Sunita succeeded to her estate on the basis of Will dated 15.11.2001. The plaintiff requested Ashok Kumar on 11.3.2002 to extend the date for execution of the sale deed and get the sale deed registered but he had refused to do so. Ashok Kumar had also failed to get a no objection certificate from the Municipal Corporation and Income Tax authorities. On 15.3.2002, plaintiff had remained present in the office of Sub Registrar with the balance sale consideration but Ashok Kumar had failed to appear. Hence, the suit for specific performance was filed by the plaintiff. Defendants No. 1, 5, 7 to 9, in their written statement, averred that the agreement to sell in question could not be enforced. The shop in dispute was in the name of Ram Chander and Lajwanti to the extent of ½ share each. The same was let out to the plaintiff w.e.f. 1.7.1986 and a rent note was executed in this regard. Ram Chander had died on 28.12.1995 and his wife inherited his property on the basis of the will, executed in her favour. The rear portion of the shop was bearing No. 156/26 and it opened in Rama market, Manimajra and was owned by Amit Verma. Lajwanti died on 18.1.2002 and had given the shop in dispute by way of a will to Sunita Verma and Raj Rani. The agreement to sell in question was reduced into writing between the parties. After the death of Raj Rani, Ashok Kumar was not competent to extend the time for RSA No. 2110 of 2011 (O&M) -3- execution of the sale deed. In fact, the plaintiff was not ready and willing to perform her part of the contract. Defendant No. 4, in her written statement, admitted the execution of the agreement to sell in favour of Raj Rani and Sunita. It was averred that defendant No. 4 was ready and willing to execute the sale deed to the extent of her share as ` 4,00,000/- were received by Ashok Kumar. It was further averred that she had no objection if the suit was decreed. Defendant No. 10, in its written statement, averred that the suit property was under mortgage with the bank and the bank had got the first charge over the suit property. The remaining defendants were proceeded exparte. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for possession of the suit property by way of specific performance of the agreement to sell dated 13.11.2001? OPP 2. Whether the plaintiff is entitled to the recovery of Rs. 15 lacs as alternative relief along with interest? OPP 3. Whether the agreement to sell dated 13.11.2001 is not enforceable as the same is not executed by some competent and duly authorised person on behalf of the purchaser? OPD 4. Whether the suit is bad for misjoinder of the parties? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the suit is not properly valued for the RSA No. 2110 of 2011 (O&M) -4- purpose of Court fee and jurisdiction? OPD (1-A) Whether Smt. Lajwanti has executed a Will dated 15.11.2001 in favour of Smt. Sunita Verma and Smt. Raj Rani and if so, its effect? OPD 1, 5, 7 to 9. (1-B) Whether the property in question is mortgaged with Oriental Bank of Commerce, Manimajra and if so its effect? OPD 7. Relief.” Civil Judge (Junior Division) vide judgment and decree dated 31.5.2010 decreed the suit of the plaintiff for recovery of `. 4,00,000/- along with interest against defendants No. 5 and 9. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed by the Additional District Judge, vide judgment and decree dated 16.2.2011 and consequently, the suit of the plaintiff for specific performance of agreement to sell in question was decreed. Hence, the present appeal by defendants No. 1, 5 and 7 to 9. Learned counsel for the appellants has submitted that the plaintiff was not ready and willing to perform her part of the contract. The suit filed by the plaintiff could not be decreed as the power of attorney, alleged to have been executed by the plaintiff in favour of her husband, had not been proved on record. No reliance can be placed on Ex.P-28 as the same was produced on record by way of rebuttal evidence. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. The plaintiff had filed the suit for specific performance of agreement to sell in question dated 13.11.2001. The execution of the agreement to sell in question is not in dispute. The question RSA No. 2110 of 2011 (O&M) -5- that requires consideration is as to whether the plaintiff was ready and willing to perform her part of the contract. Chaman Lal, husband of the plaintiff appeared in the witness box as PW-4. The said witness deposed that he along with his wife had appeared before the Sub Registrar on 15.3.2002 along with balance sale consideration but none from the vendor's side had appeared for execution of the sale deed. The affidavits sworn by the plaintiff, have been proved on record as Ex. P-6 and Ex. P-7 in this regard. The said affidavits were attested by the Sub Registrar-cum- Executive Magistrate, Manimajra. The bank draft/pay order dated 14.3.2002 for an amount of `. 13,00,000/- in favour of Ashok Kumar and others had also been proved on record. Although, the said bank draft is in the name of Ashok Kumar and others but it shows that the plaintiff had the requisite amount ready with her to perform her part of the contract. In the present case, although the plaintiff herself had not appeared in the witness box but her husband Chaman Lal had appeared in the witness box as PW-4 and had proved the case of the plaintiff qua the fact that she was ready and willing to perform her part of the contract. The plaintiff had been successful in establishing her case by leading documentary evidence. In these circumstances, the fact that the plaintiff had herself not appeared in the witness box cannot be said to be detrimental to her case. The suit of the plaintiff was liable to be decreed for specific performance as the plaintiff had always remained ready and willing to perform her part of the contract. The fact that the general power of attorney Ex. P-28 had been produced by the plaintiff in her rebuttal evidence, also loses its significance as the suit of the plaintiff was liable to be decreed on the basis of evidence led by her in affirmative. RSA No. 2110 of 2011 (O&M) -6- No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 13, 2011 Gurpreet