R. S. A. No. 837 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 837 of 2010 Date of Decision : August 18, 2010 Gurjinder Singh and another .... Appellants Vs. Balwinder Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. N. Singal, Advocate for the appellants. Mr. G. L. Bajaj, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendants Gurjinder Singh and his brother Gurmit Singh. Balwinder Singh respondent filed suit against the appellants alleging that the appellants-defendants, vide agreement to sell dated 13.03.2007, agreed to sell 45 kanals 18½ marlas suit land to the plaintiff for total sale consideration of Rs.21,83,626/-, out of which the plaintiff paid Rs.8,00,000/- to the defendants as earnest money at the time of agreement. Sale deed was to be executed on or before 25.06.2007. However, after the R. S. A. No. 837 of 2010 2 agreement, the plaintiff learnt that one Binder Singh – joint owner had raised loan of Rs.2,65,000/- in September 2000 from bank by mortgaging part of the suit land i.e. by mortgaging 48 kanals 05 marlas land including 39 kanals 13 marlas land out of the suit land. Criminal case had also been registered against said Binder Singh and Halqa Patwari. The plaintiff, by issuing notice to the defendants, requested them to clear the bank loan and to obtain `No objection Certificate' from the bank and to execute the sale deed as per agreement. The plaintiff went to the office of Sub Registrar on 25.06.2007 to get the sale deed executed in terms of the agreement. The plaintiff had taken requisite money with him for getting the sale deed executed. However, defendants did not turn up. The defendants thus committed breach of the agreement, although the plaintiff has always been and was still ready and willing to perform his part of the agreement. Accordingly, the plaintiff filed suit for possession of the suit land by specific performance of the agreement to sell and in the alternative, claimed recovery of Rs.16,00,000/- and also claimed relief of permanent injunction restraining the defendants from alienating the suit land. The defendants, in the written statement, admitted the execution of the agreement, but denied the other plaint allegations. The defendants inter alia pleaded that they had received Rs.50,000/- only as earnest money at the time of agreement and the balance sale consideration of Rs.21,33,626/- was to be paid at the time of sale deed. The plaintiff, by R. S. A. No. 837 of 2010 3 forgery and fabrication, mentioned the earnest money to be Rs.8,00,000/-. In jamabandis for 2000-01 and 2005-06, there is no mention of any bank loan against the suit land. The defendants never took any loan from bank against the suit property. The plaintiff, after satisfying himself about it, had entered into the agreement. On 25.06.2007, defendants went to Tehsil premises to execute the sale deed in favour of the plaintiff, but the plaintiff did not turn up as he had no money for getting the sale deed executed. The defendants marked their presence before the Sub Registrar. The plaintiff could not arrange requisite money and therefore, the plaintiff failed to perform his part of the agreement. The defendants were still ready to execute the sale deed on receiving balance sale price of Rs.21,33,626/-. Various other pleas were also raised. Learned Civil Judge (Junior Division), Bathinda, vide judgment and decree dated 20.04.2009, decreed the suit for alternative relief to the extent of recovery of Rs.8,00,000/- with interest. Both parties preferred appeals against judgment and decree of the trial court. Learned Additional District Judge (Fast Track Court), Bathinda, vide common judgment dated 28.11.2009, dismissed the first appeal preferred by the defendants and allowed the first appeal preferred by the plaintiff and decreed the plaintiff's suit for possession of the suit land by specific performance of the impugned agreement. Feeling aggrieved, defendants have preferred the instant second appeal. R. S. A. No. 837 of 2010 4 I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that admittedly defendants had not raised any loan against the suit land, but the plaintiff, by issuing notice, insisted that the defendants should clear the bank loan raised by Binder Singh and should obtain `No objection Certificate' from the bank. The plaintiff mentioned this fact in his application and affidavit dated 25.06.2007 regarding his presence in the office of Sub Registrar and also mentioned the same in the plaint. Learned counsel for the appellants accordingly contended that plaintiff-respondent was thus not ready and willing to perform his part of the contract and therefore, suit for specific performance of the agreement could not be decreed. On the other hand, learned counsel for plaintiff-respondent contended that the plaintiff was always ready and willing to perform his part of the contract by paying the balance sale consideration. It was pointed out that plaintiff even went to the office of Sub Registrar on 25.06.2007 to get the sale deed executed in terms of the agreement and moved application before the Sub Registrar to get his presence recorded and also affirmed affidavit regarding the same. Learned counsel for the respondent also contended that the plaintiff expressed his readiness and willingness to perform his part of the contract by filing suit, wherein the plaintiff did not R. S. A. No. 837 of 2010 5 insist for clearance of bank loan of Binder Singh by defendants, but sought specific performance of the agreement on payment of balance sale consideration. Learned counsel for the appellants also contended that in terms of the decree of the lower appellate court, the plaintiff has since deposited the balance sale consideration of Rs.13,83,630/- in the trial court on 20.03.2010. I have carefully considered the rival contentions. It is correct that the plaintiff, by serving notice on the defendants, required them to clear the bank loan of Binder Singh, and plaintiff also mentioned this fact in his application moved before the Sub Registrar and also in the affidavit affirmed by him on 25.06.2007. The plaintiff also referred to the said notice in the plaint. However, merely on this ground, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. The plaintiff went to the office of Sub Registrar on 25.06.2007 – the date stipulated in the agreement for execution of the sale deed. This fact is proved by documentary evidence in the form of application moved by the plaintiff before the Sub Registrar and the affidavit affirmed by the plaintiff on 25.06.2007. On the contrary, the defendants pleaded that they had also gone to the office of Sub Registrar on 25.06.2007, but they failed to prove the said fact. There is only oral bald statement of defendant no.1 to this effect, but no document has been produced by the defendants to depict that they had gone to the office of Sub Registrar on 25.06.2007 to execute the R. S. A. No. 837 of 2010 6 sale deed in terms of the agreement. In addition to the aforesaid, the plaintiff filed the instant suit on 16.07.2007 i.e. just three weeks after the date stipulated in the agreement for execution of the sale deed. The very fact that the plaintiff promptly filed the suit would depict his readiness and willingness to perform his part of the contract. On the contrary, the defendants in the written statement, expressed their readiness and willingness to execute the sale deed on payment of Rs.21,33,626/- as the balance sale price, although in fact, the defendants were entitled to Rs.13,83,626/- only as balance sale consideration. Thus, defendants neither went to the office of Sub Registrar on 25.06.2007 to execute the sale deed in terms of the agreement nor the defendants were ready to execute the sale deed in terms of the agreement as per their written statement. On the other hand, defendants insisted on payment of Rs.7,50,000/- as excess money. Thus, the fault lies on the shoulders of the defendants and not the plaintiff. The plaintiff demanded by notice before filing the suit that the defendants should clear the bank loan raised by Binder Singh. However, it was so because substantial part of the suit land had been mortgaged by Binder Singh with bank for raising the loan. At the same time, merely on this ground, the plaintiff cannot be non-suited and it cannot be said that he was not ready and willing to perform his part of the contract. The plaintiff, by filing the suit, wanted execution of the sale deed as per agreement on payment of balance sale consideration. This fact by R. S. A. No. 837 of 2010 7 itself is also sufficient to prove readiness and willingness of the plaintiff to perform his part of the contract. The fact that the plaintiff has also deposited the balance sale consideration in the trial court, pursuant to decree of the lower appellate court, would also depict that the plaintiff had the requisite funds to get the sale deed executed as per terms of the agreement. For the reasons recorded herein above, I find no illegality in the finding of the lower appellate court that the plaintiff is entitled to specific performance of the impugned agreement. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus found to be without any merit and is accordingly dismissed. August 18, 2010 ( L. N. MITTAL ) monika JUDGE