RSA No.2809 of 2007 [1] THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2809 of 2007 Date of Decision: 25 - 11 - 2008 Sukhdev Singh and another ....Appellants v. Balbir Singh ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.A.S.Jattana, Advocate for the appellants. Mr.Harsh Aggarwal, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA (ORAL) Appellant-defendants have failed in two Courts below and hence has filed the present regular second appeal. Respondent-plaintiff filed a suit for specific performance against the appellant-defendants. It was stated in the plaint that the appellant-defendants were owners in possession of the suit land and executed an agreement to sell on 4.7.2001 and agreed to sell 7 Bighas being 1/6 share out of land measuring 42 Bighas 5 Biswas to the respondent- plaintiff at the rate of Rs.42,000/- per Bigha. The agreement to sell was scribed by Pawan Kumar Sharma, Deed Writer, Malerkotla. After the same was read over, the appellant-defendants had affixed their thumb impressions. At the time of execution of agreement to sell, Rs.1,73,000/- was advanced as earnest money. The agreement to sell was signed by RSA No.2809 of 2007 [2] marginal witnesses. Last date for execution of sale deed was 5.12.2001. On 3.12.2001 another writing was prepared whereby date of execution of sale deed was extended from 5.12.2001 to 17.7.2002 and another sum of Rs.50,000/- was received by the appellant-defendants. Mr.Jattana stated that only Rs.71,000/- remained to be paid to the respondent-plaintiff. It has been stated in the suit that respondent-plaintiff was always ready and willing to perform his part of the contract but the appellant-defendants avoided execution of the sale deed. It has been further stated by the respondent-plaintiff that on 17.7.2002 he along with the balance sale consideration remained present in the office of Sub Registrar, Malerkotla and also got an affidavit attested from the Oath Commissioner, Malerkotla. Notice of suit was issued. Appellant-defendants appeared in the trial Court. In the written statement filed, it was stated that respondent- plaintiff has no cause of action to file the suit. Execution of any agreement to sell in writing in favour of the plaintiff and subsequent writing were denied. It was stated that documents relied by plaintiff are fraudulent documents and agreement to sell in writing is result of fraud, misrepresentation and is without consideration. Receipt of earnest money was also denied. It was further denied that on 4.7.2001 any document was executed. A replication was filed in which averments made in the suit were reiterated and that of the written statement were denied. The trial Court formulated the following issues:- 1. Whether defendants executed an agreement to sell dated 4.7.2001 in favour of plaintiff? OPP 2. Whether plaintiff is entitled to specific performance of agreement? OPP RSA No.2809 of 2007 [3] 3. If plaintiff fails in issue no.1, whether he is entitled for recovery of Rs.2,94,000? OPP 4. Whether plaintiff always remained ready and willing and still ready and willing to perform his part of the agreement? OPP 5. Whether plaintiff is entitled to permanent injunction as prayed for? OPP 6. Whether suit is not maintainable? OPD 7. Whether agreement is the result of fraud, mis- representation and without consideration? OPD 8. Relief. Balbir Singh plaintiff himself appeared as PW-1. He examined Sukhdev Singh marginal witness as PW-2, Sadhu Singh PW-3 was an attesting witness to the subsequent writing whereby date was extended. Pawan Kumar Sharma, Deed Writer was examined as PW-4. Avtar Kaur defendant herself appeared as DW-1. The trial Court relying upon evidence of the witnesses came to the conclusion that agreement to sell and subsequent writing whereby time to execute the sale deed was extended, were executed between the parties and the plaintiff was ready and willing to perform his part of the contract. The plea of the appellant-defendants that documents are result of fraud and misrepresentation was negated. The trial Court also considered the plea raised that affirmation of affidavit Ex.P1 on 17.7.2002 is not sufficient to infer readiness and willingness of the plaintiff to perform his part of the contract and rejected the same. The trial Court considered that since execution of the documents has been denied, Avtar Kaur DW-1 stated that she never remained ready and willing to execute the sale deed, therefore, once the defendants received huge amount in two installments and the amount which was to be paid, was not substantial and she herself has stated RSA No.2809 of 2007 [4] that she was not ready to perform her part, it found favour with the oral testimony of the plaintiff-respondents that they were ready and willing to perform their part of the contract. Respondent-plaintiff had already paid Rs.2,23,000/- to the appellant-defendants as earnest money. Therefore, the suit was decreed by the trial Court. Aggrieved against the same present appellants filed an appeal. Same was decided by the District Judge, Sangrur. Appellate Court held that the categoric assertion of the plaintiff that he was ready and willing to perform his part of the contract leaves no doubt and the evidence of plaintiff inspires confidence. Thus, the appeal preferred by the appellants was dismissed. I have heard Mr.A.S.Jattana, counsel for the appellant- defendants and Mr.Harsh Aggarwal, counsel for the respondent -plaintiff. Mr.Jattana has relied upon a judgment of this Court in Gurdial Sarup v. Kaushalya Kapur & Ors., 2003(1) Civil Court Cases 602 to say that mere swearing the affidavit Ex.P1on date of execution of sale deed was not sufficient. It was incumbent upon the plaintiff to get his attendance recorded in the Office of Sub Registrar. The judgment relied upon by the learned counsel is distinguishable. In that case while appreciating the oral evidence, Courts below found that in that case evidence of plaintiff was not trust worthy and, therefore, had taken note of the fact that the presence was not got marked before the Sub Registrar, as corroborative piece of evidence to oral testimony. In the present case, in cross-examination, defendant has specifically stated that she was never ready and willing to execute the sale deed as no agreement or writing were executed. Plaintiff by examining the marginal/attesting witnesses has proved those documents. Therefore, two Courts below have rightly arrived at concurrent findings of fact that from RSA No.2809 of 2007 [5] the oral testimony, it is made out that plaintiff was ready and willing to perform his part of the contract. Counsel for the appellants has further relied upon a judgment of the Apex Court in N.P.Thirugnanam v. Dr.R.Jagan Mohan Rao & Ors., 1996(1) Civil Court Cases 27 wherein it was held that it should be proved that plaintiff was possessed of the sufficient means and the balance amount was available with him on the date when agreement was executed. In the present case, substantial amount has been paid in two installments i.e. when the agreement to sell was executed and subsequently when time for execution of the sale deed was extended. Therefore, the Courts below have rightly held that Rs.71,000/- were available with the plaintiff from sale of agriculture produce. Therefore, this judgment is also of no help to the appellants. Counsel has further relied upon a judgment of the Apex Court in His Holiness Acharya Swami Ganesh Dasji v. Shri Sita Ram Thapar, 1996(2) Civil Court Cases 652 to say that alone from the oral testimony readiness and willingness cannot be inferred. Court has to rely upon attending circumstances also. As stated earlier the two Courts below has taken into consideration the specific assertion made by the plaintiff, coupled with fact that appellant-defendant Avtar Kaur's testimony that she was never ready and willing to perform her part of contract. Therefore, no substantial question of law has been formulated to disturb the findings arrived at by the two Courts below. Hence, there is no merit in the present appeal and the same is dismissed. ( KANWALJIT SINGH AHLUWALIA ) November 25, 2008. JUDGE RC