Regular Second Appeal No. 3838 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3838 of 2009 Date of decision : July 27, 2010 Pardeep Grewal ....Appellant versus Jai Kishan and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Adarsh Jain, Advocate, for the appellant Mr. R.K. Malik, Senior Advocate with Mr. Kohal Sharma, Advocate, for the respondents L.N. Mittal, J. (Oral) By this common order, I am disposing of two second appeals i.e. RSA No. 3838 of 2009 and RSA No. 3839 of 2009 as common questions of law and facts are involved in both the appeals and parties are also same except that Shyamwati who is respondent no. 5 in RSA No. 3838 of 2009 is not party in RSA No. 3839 of 2009. Both the appeals have been preferred by plaintiff Pardeep Grewal in two separate suits filed by him. He was successful in the trial court but has been non-suited by the lower appellate court. Plaintiff's case is that defendants entered into two agreements dated 6.1.2001 thereby agreeing to sell suit land measuring 2 kanals 8 Regular Second Appeal No. 3838 of 2009 -2- marlas involved in one suit and suit land measuring 5 marlas involved in other suit @ Rs 38 lacs per acre. The plaintiff paid Rs 1,17,000/- as earnest money by one agreement and Rs 10,000/- as earnest money by second agreement. Sale deeds were to be executed on or before 5.9.2001. Prior to it, defendants were to get income tax clearance certificate and were also to get suit land partitioned as it was share in joint land. Plaintiff's case is that he always remained willing and ready to perform his part of the contract and attended the office of Sub Registrar on 5.9.2001, the date fixed in the agreements for execution of the sale deeds, but the defendants did not turn up and the defendants committed breach of the agreements. In spite of notice served by the plaintiff, the defendants failed to execute the sale deeds as per agreements. The plaintiff accordingly sought decree for possession of the suit land by specific performance of the agreements. The defendants while admitting the agreements in question controverted the other allegations of the plaintiff. The defendants denied that they were to get the suit land partitioned before execution of sale deeds. The defendants pleaded that they were always ready and willing to perform their part of the contract and the plaintiff committed breach of the agreements. The defendants served notice dated 15.1.2003 requiring the plaintiff to get the sale deeds executed as per agreements upto 30.1.2003, but the plaintiff failed to do the needful. The defendants served another notice dated 14.3.2003 on the plaintiff informing that he was left with no right under the agreements because he failed to get the sale deeds executed as per earlier notice and earnest money paid by the plaintiff stood forfeited. It was also pleaded that the plaintiff filed the suits after price of the suit Regular Second Appeal No. 3838 of 2009 -3- land increased manifold. Learned Civil Judge (Senior Division), Sonepat vide separate judgments and decrees dated 1.8.2008 decreed both the suits. However, first appeals preferred by defendants in both the suits have been allowed by learned Additional District Judge, Sonepat vide judgments and decrees dated 29.11.2008 and thereby both the suits filed by the plaintiff stand dismissed. Feeling aggrieved, the plaintiff has preferred the instant second appeals. I have heard learned counsel for the parties and perused the case file. Following substantial questions of law arise for determination in the instant second appeals:- “1. Whether finding of the lower appellate court that the plaintiff was not ready and willing to perform his part of the contract is illegal and unsustainable ? 2. If answer to question no. 1 is in the negative, whether the plaintiff is entitled to refund of earnest money with interest ?” Learned counsel for the appellant vehemently contended that the plaintiff went to the office of Sub Registrar on 5.9.2001 to get sale deeds executed as per agreements but the defendants admittedly did not come to the office of Sub Registrar to do the needful. Per-contra, the defendants waited for the plaintiff in their village as the plaintiff was to take them from the village to the office of Sub Registrar but the plaintiff did not turn up. Learned counsel for the appellant also contended that plaintiff served notice dated 9.1.2004 on the defendants but the defendants did not Regular Second Appeal No. 3838 of 2009 -4- comply with the notice and did not execute the sale deeds as per agreements. Learned counsel for the respondents, however, contended that the respondents/defendants had already served notices dated 15.1.2003 and 14.3.2003 on the plaintiff but the plaintiff-appellant failed to get the sale deeds executed. Learned counsel for the appellant, however, contended that the said notices were never received by the plaintiff-appellant and complete address of the plaintiff-appellant was not mentioned in the notices. Learned counsel for the respondents, however, contended that the appellant- plaintiff remained silent for almost three years after execution of the agreements and served notice dated 9.1.2004 after the prices of the suit land had increased. I have carefully considered the rival contentions. Suits were filed on 31.8.2004 i.e. just a few days before the limitation period of three years was going to expire from the date stipulated in the agreements for execution of the sale deeds. Even notice dated 9.1.2004 was served by the plaintiff-appellant three years after the execution of the agreements and more than two years and four months after the date stipulated in the agreements for execution of the sale deeds. On the contrary, defendants had sent notices dated 15.1.2003 and 14.3.2003 by registered post to the plaintiff who did not respond to the same. Merely because complete address is not written in the postal receipts, it cannot be said that the notices were not dispatched at complete and correct address of the plaintiff- appellant. There is no explanation why the plaintiff-appellant remained silent for three years after execution of the agreements before sending notice dated 9.1.2004 and before filing the suits on 31.8.2004. Regular Second Appeal No. 3838 of 2009 -5- In addition to the aforesaid, there was no obligation on the defendants as per terms and conditions of the agreements to get the suit land partitioned. However, the plaintiff pleaded in the plaints that the defendants were to get the suit land partitioned before execution of sale deeds. No such condition finds mention in the agreements. However, pleading of this condition by the plaintiffs in the suits would depict that the plaintiff was imposing a condition on the defendants which was not there in the agreements and which the defendants were not required to comply with. It would depict that the plaintiff himself did not want execution of sale deeds as per agreements. Learned counsel for the appellant also contended that as per condition in the agreements, defendants were to get the land mutated in their names before execution of sale deeds but the defendants got the same mutated in January, 2005 i.e. during pendency of the suits. This contention is untenable because no such plea was even taken by the plaintiff in the plaints. Moreover, even till the filing of the suits, suit land had allegedly not been mutated in the names of the defendants and therefore, it cannot be said that the plaintiff did not get the sale deeds executed on account of non- compliance with the said condition. Keeping in view all the aforesaid circumstances including conduct of the plaintiff himself as noticed hereinabove, I am of the considered opinion that principles of equity, justice and good conscience require in the facts and circumstances of the instant cases that the plaintiff is not entitled to discretionary relief of specific performance of the agreements but the defendants are required to refund the earnest money paid Regular Second Appeal No. 3838 of 2009 -6- by the plaintiff along with interest thereon at reasonable rate. Substantial questions of law framed herein above are answered accordingly. Accordingly, both the instant appeals are allowed partly and judgments and decrees of both the courts below are set aside and both the suits filed by the plaintiff-appellant are decreed partly for recovery of Rs 1,17,000/- and Rs 10,000/- respectively alongwith interest thereon @ 12% per annum with effect from 6.1.2001, the date of the agreements when the said amounts were paid by the plaintiff to the defendants, till recovery, with proportionate costs throughout. ( L.N. Mittal ) July 27, 2010 Judge 'dalbir'