RSA No.3506 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3506 of 2010 (O&M). Decided on: April 18, 2011. Maninderjit Singh. .. Appellant VERSUS Harjinder Kaur. .. Respondent * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Vishal Garg, Advocate, for the appellant. Mr.Jaspreet Singh, Advocate, for the respondent. M.M.S. BEDI, J. Plaintiff-appellant has preferred this second appeal against the judgment and decree passed in favour of the plaintiff for specific performance of agreement of sale dated 03.10.2008. Dissatisfied with the conditions imposed upon the . . . 1 RSA No.3506 of 2010 (O&M) plaintiff-appellant directing him to pay balance of the sale consideration within stipulated period in which the defendant- respondent will get the sale deed executed within 15 days after the receipt of the amount, failing which the plaintiff shall be at liberty to get the sale deed executed through Court. Brief facts of the case, relevant for the adjudication of the present appeal, are that the plaintiff had filed a suit against the defendant-respondent for specific performance of the agreement of sale dated 03.10.2008, regarding one incomplete residential house measuring 17 marlas as mentioned in the heading of the plaint. The defendant had admitted the claim of the plaintiff-appellant by moving an application on 28.01.2009, with an offer to the plaintiff to get the sale deed executed by him on payment of the whole of the remaining sale consideration. The plaintiff-appellant made a statement in the Court that he was ready to get the sale deed executed if the defendant got the site plan of the house in dispute approved from Municipal Council and that necessary direction be issued to the defendant. Mukand Singh general Power of Attorney of defendant- respondent made a statement in the Court that there was no such condition in the agreement of sale to get the site plan prepared before getting the sale deed executed and that an excuse was being made by the plaintiff-appellant as he was not ready with the balance sale consideration. The defendant sought a direction for tender of the remaining sale consideration in the Court. In view of the statements made by the parties in the Court, the case was adjourned . . . 2 RSA No.3506 of 2010 (O&M) to 11.02.2009 by the trial Court and a direction was given to the plaintiff-appellant to deposit a sum of ` 5 lacs in the Court so that the defendant be directed to get the site plan prepared and approved from the Municipal Council on payment of ` 2 lacs. On 11.02.2009, the plaintiff showed his inability to deposit the amount as per the directions of the Court. Ultimately vide judgment and decree dated 12.02.2009, the trial Court decreed the suit of the plaintiff-appellant for specific performance of the agreement of sale dated 03.10.2008, in favour of the plaintiff-appellant and against the defendant- respondent with a direction to the plaintiff to pay the whole of the remaining sale consideration directly to the defendant or to deposit the same in the Court on or before 20.02.2009, failing which the suit shall stand dismissed and the earnest money paid to the defendant would stand forfeited. It was further directed that if the plaintiff paid/deposited the remaining sale consideration, as per the directions of the Court, the defendant-respondent will get the sale deed executed within 15 days after the receipt of the amount, failing which, the plaintiff shall be at liberty to get the sale deed executed through Court. Aggrieved by the said conditional decree, the plaintiff filed an appeal in the Court of Additional District Judge, Faridkot, raising a grievance that unless and until the site plan was got sanctioned by the defendant-respondent from the Municipal Council, the plaintiff-appellant could not be directed to deposit the balance sale consideration and to get the sale deed executed in his . . . 3 RSA No.3506 of 2010 (O&M) favour. The said plea was rejected by the lower appellate Court holding that there was no pre-condition in the agreement of sale that the plaintiff was not entitled to refuse or to get the sale deed executed without sanction of the site plan by the Municipal Council, as such, the condition imposed by the trial was not illegal. Not satisfied with the dismissal of appeal, the plaintiff has again preferred this second appeal on the ground that on account of the statements which were made on 10.02.2009, by the parties, a triable issue had arisen which was to be adjudicated upon by framing an issue whether the defendant-respondent was bound to get clearance in respect of the residential house from the Municipal Council before the agreement of sale could be enforced. It was argued by the counsel for the appellant that trial Court had straightway passed the conditional decree subject to payment of balance sale consideration within 10 days, failing which the suit would stand dismissed and the earnest money forfeited. It was argued that without framing any issue and recording any evidence on the issue of readiness and willingness of the parties, the appellate Court has wrongly given a finding on the question of readiness and willingness of the appellant which is against the principles of law. Learned counsel for the appellant has contended that the following questions of law arise in the present appeal which requires adjudication: - (i) Whether a civil Court can pass a conditional . . . 4 RSA No.3506 of 2010 (O&M) decree for specific performance compelling the purchaser to pay the amount within specified time and in case of non-payment the resultant dismissal of the suit particularly when the plaintiff had raised a dispute of non-compliance of the terms and conditions of the contract? (ii) Whether a civil Court can give a finding on the question of readiness and willingness without framing issues and recording the evidence and by relying upon such documents which are not part of the record? Learned counsel for the defendant-respondent Mr.Jaspreet Singh has contended that the appellant is not ready and willing to perform his part of obligation arising out of agreement of sale and has not complied with the directions passed by the Court below while decreeing the suit of the plaintiff, as such, the suit of the plaintiff-appellant deserves to be dismissed. The trial Court had directed the plaintiff-appellant to deposit the balance of the sale consideration by 20.02.2009, failing which the suit was ordered to be dismissed with resultant forfeiture of the earnest money. The said order was not complied with. The lower appellate Court had upheld the conditional decree vide judgment and decree dated 21.01.2010 observing that conduct of the plaintiff-appellant indicate that he was not ready and willing to perform his part of the contract, as such, he was not entitled to get the sale deed executed. Moreover, there was no pre-condition in the agreement that the plaintiff was not entitled to . . . 5 RSA No.3506 of 2010 (O&M) refuse to get the sale deed executed without sanction of the site plan by the Municipal Council. After hearing the counsel for both the parties and pondering over the facts of the present appeal, this Court is of the opinion that there is no dispute between the parties regarding the execution of agreement of sale dated 03.10.2008, by virtue of which the defendant-respondent had agreed to sell her residential house to the plaintiff for a sum of ` 45 lacs after having received ` 4,50,000/- as earnest money. The sale deed was to be executed on or before 10.12.2008. The defendant-respondent was to receive ` 10 lacs on 07.11.2008, and the remaining amount was to be paid at the time of execution of the sale deed. As per the agreement the plaintiff had to pay sum of ` 10 lacs on 07.11.2008, but the plaintiff had got prepared a pay order for the said amount for payment to the defendant-respondent as per the agreement but said pay order was not received by the defendant whereas the defendant asked the plaintiff that he would get the pay order in the Court premises. The defendant-respondent required the plaintiff to pay the said amount in the chamber of an Advocate on 22.11.2008, between 10:00 AM to 12:00 Noon, but the plaintiff did not turn up when a notice was issued on 27.11.2008, showing intention of the defendant to get the remaining sale consideration paid to her and sale deed executed in favour of the plaintiff but the plaintiff avoided the payment of remaining balance sale consideration. I have considered the contention of counsel for both . . . 6 RSA No.3506 of 2010 (O&M) the parties and appreciated the same in context to the relevant provisions of law. The controversy regarding payment of sum of ` 10 lacs in addition to the earnest money was not required to be settled as defendant-respondent had filed an application during pendency of the civil Suit on 28.10.2009, requiring the plaintiff to get the sale deed executed on payment of whole of the remaining sale consideration. This application would be an admission in writing entitling the civil Court to pass a judgment under Order 12 Rule 6 CPC. The relevant portion of Order XII Rule 6 CPC reads as follow: - “6. Judgment on admissions. - (1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” The above said provision clearly permits the . . . 7 RSA No.3506 of 2010 (O&M) defendant-respondent to file an application without waiting for the determination of any other question between the parties to make an order or a judgment on the basis of the admission made by the defendant. The trial Court was within its competence to pass a judgment and decree on the basis of the admission of the defendant- respondent in accordance with the provisions of CPC. So far as the condition imposed by the trial Court to deposit the money within stipulated period is concerned, the same does not appear to be illegal as Order 20 Rule 12-A CPC, requires a Court to specify the period within which the payment is required to be made by the decree holder while passing a decree for specific performance of the agreement of sale of immovable property. Order XX Rule 12-A CPC, reads as follows: - “12A. Decree for Specific Performance of contract for the sale or lease of immovable property. - Where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase-money or other sum be paid by the purchaser or lessee, it shall specify the period within which the payment shall be made.” A perusal of the above said provisions clearly indicates that a Court while passing a decree for specific performance is competent to specify the period within which the . . . 8 RSA No.3506 of 2010 (O&M) payment shall be made. It is settled principle of law that the readiness and willingness of a plaintiff to discharge his part of the obligation as per agreement is sine qua non. When the plaintiff files a suit for specific performance of agreement of sale, he is required to be ready and willing to perform his part of the contract at the time of filing of the suit and till the time decree is passed. In view of said legal position, the plaintiff cannot raise a grievance that he had been given only 10 days time to perform his part of the contract i.e., to pay the balance sale consideration of about ` 40 lacs. Once a decree is passed on the basis of admission in a suit for specific performance and a period has been prescribed by the Court decreeing the suit directing the plaintiff to deposit the balance of the sale consideration within the period stipulated, the plaintiff cannot challenge the condition on the ground that the defendant-respondent has failed to perform any part unless and until he pleads fraud having been played upon him or on the Court. In case the plaintiff is not satisfied with the condition imposed by the Court, he has got a remedy to either seek the adjudication of the matter on merits or to challenge the decree on the ground that fraud has been played upon him or on the Court. In case he wants to challenge the terms of the agreement of sale, he is required to seek rescinding of the contract bringing the matter within the ambit of Section 26 of the Specific Relief Act, but the same has to be done expeditiously before the expiry of the time granted by the trial Court for implementation of the condition. In the present case, . . . 9 RSA No.3506 of 2010 (O&M) the condition imposed upon the plaintiff-appellant in a decree passed on the basis of an admission under Order 12 Rule 6 CPC, is not violative of the provisions of Order 20 Rule 2A CPC and the condition has not been challenged on the ground of consent being not a free consent and the contract having been rescinded. The judgment and decree passed by the Court below cannot be said to be invalid. The question of law raised having been decided against the plaintiff-appellant in the light of provisions of Code of Civil Procedure, the Specific Relief Act and the Indian Contract Act, the appeal is dismissed. (M.M.S.BEDI) JUDGE April 18, 2011. rka . . . 10