R.S.A.No. 191 of 1996 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 191 of 1996 Date of decision: 17.8. 2009 Pala Singh ......Appellant Versus Ram Chander .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Anupam Gupta, Advocate, for the appellant. Mr.R.K.Gupta, Advocate, for the respondent. **** SABINA, J. Plaintiff Ram Chander filed a suit for specific performance and the same was decreed by the Additional Senior Sub Judge, Rajpura vide judgment and decree dated 5.1.1991. In appeal, the said judgment and decree were upheld by District Judge, Patiala vide judgment and decree dated 8.1.1996 . Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No. 191 of 1996 2 “2. Brief facts of the case are that plaintiff Sh.Ram Chander filed a suit for possession by way of specific performance against defendant/appellant Pala Singh alleging that Pala Singh defendant agreed to sell the suit land fully described in the headnote of the plaint to the plaintiff for a sum of Rs.2,50,000/- vide agreement to sell dated 28.2.1986. Defendant received a sum of Rs.30,000/- out of the sale consideration. Amount of Rs.5,000/- was paid to the plaintiff on 30.10.1985 when the earlier agreement was executed and amount of Rs.25,000/- was paid to the plaintiff when the agreement dated 28.2.1986 was executed between the parties. Latest agreement is dated 28.2.1986. The first agreement merged into the second one dated 28.2.1986. It was agreed upon that the sale deed would be executed on or before 31.8.1986 on payment of the remaining consideration of Rs.2,20,000/-. Plaintiff alleged that he was always ready and willing and still ready and willing to perform his part of the contract and he is also ready to get the sale deed executed in his favour in terms of the agreement but the defendant has breached the agreement. Hence this suit. 3. Notice of the suit was given to the defendant/appellant who filed written statement. He R.S.A.No. 191 of 1996 3 admitted execution of the agreement. Defendant also admitted that he received a sum of Rs.30,000/- by way of earnest money. He issued a notice dated 29.8.1986 to the plaintiff requesting him to reach the office of the Sub Registrar for getting the sale deed executed and registered for an amount of Rs.2,50,000/- as per terms of the agreement. On 1.9.1986 he went to the office of the Sub Registrar, but the plaintiff did not turn up. 31.8.1986 was a holiday, therefore, defendant went to the office of the Sub Registrar on 1.9.1986. The defendant waited for the plaintiff till evening. So much so, defendant made an application in the office of the Sub Registrar, Dera Bassi for marking his presence. The presence of the defendant was marked. Aftter marking his presence, application was returned to the defendant. Plaintiff never cared to get copy of the jamabandi from the Patwari and plaintiff did not serve any notice upon the defendant nor sent any draft of the proposed sale deed. Defendant was never called upon by the plaintiff to execute the sale deed. The plaintiff did not have requisite fund for stamps and money for registration fee. He committed breach of the agreement. Plaintiff was not ready and willing to perform his part of the contract and under these circumstances, his earnest money stood forfeited. Time was the essence R.S.A.No. 191 of 1996 4 of the contract and it was known to the plaintiff. Plaintiff failed to perform his part of the contract. He is not entitled to pay decree for specific performance. Plaintiff has got forfeited his money. Defendant has suffered damages. Defendant wanted to purchase some land. Price of the land which he wanted to purchase from Shamsher Singh son of Kaka Singh had increased and defendant incurred a loss of Rs.60,000/- due to non- performance of the agreement by the plaintiff.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether defendant has committed the breach of the agreement dated 28.2.1986? OPP 2. Whether the plaintiff has always remained ready and willing to perform his part of the contract? OPP 3. Whether the time was the essence of the contract? If so its effect? OPD 4. If issue No.1 and 2 are proved, whether the plaintiff is entitled to the relief of specific performance of the contract of sale? If so on what terms? OPP 5. Whether in the alternative the plaintiff is entitled to claim Rs.2,50,000/- as alleged? OPP 6. Whether the suit is barred by delay and laches? If so its effect? OPD R.S.A.No. 191 of 1996 5 7. Relief. ” The substantial question of law that arises in this case is “ whether both the Courts below had failed to appreciate the evidence on record and the finding of the Courts below to the effect that the plaintiff was always ready and willing to perform his part of the contract was perverse?” Learned counsel for the appellant has submitted that the Courts below had erred in decreeing the suit of the plaintiff for specific performance as he had failed to establish that he was ready and willing to perform his part of the contract. Learned counsel for the respondent, on the other hand, has argued that both the Courts below, after appreciating the evidence on record, had rightly come to the conclusion that the plaintiff was ready and willing to perform his part of the contract as time was not the essence of the contract. The suit had been filed by the plaintiff within the period of limitation seeking specific performance of the agreement to sell. The execution of the agreement to sell in question is not in dispute in this case. The case of the appellant rather is that the plaintiff was not ready and willing to perform his part of the contract, whereas, he had remained present in the office of Sub Registrar on the stipulated date fixed for execution of the sale deed but the plaintiff had failed to appear. Hence, the controversy involved in this appeal is narrowed down to the extent as to whether the plaintiff was R.S.A.No. 191 of 1996 6 ready and willing to perform his part of the contract. In this regard material evidence on record has been ignored by the Courts below. Ex.D-4 is the relevant document in this regard vide which the appellant had got marked his presence in the office of Sub Registrar on 1.9.1986 as 31.8.1986, the date fixed for execution of the sale deed was Sunday. This shows that the appellant was ready to execute the sale deed in favour of the plaintiff. However, the plaintiff has failed to establish that on the date fixed for execution of the sale deed, he was present in the office of Sub Registrar. Hence, the findings of the Courts below that the plaintiff was always ready and willing to perform his part of the contract are perverse and against the evidence on record. Accordingly, the substantial question of law that arises in this appeal stands answered in affirmative. Consequently, this appeal is allowed. The suit of the plaintiff for specific performance of the agreement to sell in question is dismissed. However, the suit of the plaintiff in the alternative for recovery of the earnest money of Rs.2,50,000/- is decreed. No order as to costs. (SABINA) JUDGE August 17, 2009 anita