RSA No.206 of 1984(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross-objection No.19-C of 1984 & RSA No.206 of 1984(O&M) Date of decision: 5.5.2010 Karnail Singh ......Appellant(s) Versus Gian Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sukant Gupta, Advocate for the appellant. Mr. Jagdish Manchanda, Advocate for the respondents. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby the appeal filed by the defendant-respondents was accepted and judgment and decree of the trial Court was modified and instead of specific performance of the agreement to sell in question, the decree for Rs.38,700/- was passed in favour of the plaintiff-appellant. Briefly stated, the case of the appellant before the trial Court was that defendants No.1 to 3, who were owners of the land in dispute along with defendant No.4, entered into an agreement with him to sell the same at the rate of Rs.15,500/- per killa and executed an agreement in this regard on 27.3.1981 whereby they received a sum of Rs.30,000/- as earnest money and agreed to execute regular sale deed in his favour by joining defendant No.4 on or before 13.7.1981. According to the plaintiff- appellant, he came to Ajnala for getting the sale deed executed in terms of this agreement on 13.7.1981 with the balance sale consideration but defendants No.1 to 3 expressed their inability to execute the sale deed RSA No.206 of 1984(O&M) 2 and sought one day's time which was accepted and an endorsement was made in this regard which was duly signed by the parties. It is the further case of the appellant that on 14.7.1981, he again came with the balance sale price and registration expenses for getting the sale deed executed but defendants No.1 to 4 failed to turn up to execute the sale deed. The plaintiff remained present in the office of Tehsildar Anjala upto 5.00 P.M. whereafter he got his attendance marked by getting an affidavit attested from that officer. A notice dated 16.7.1981 was served upon the defendants through registered post to which defendants sent reply dated 3.8.1981 denying to execute the sale deed. Thus, the plaintiff filed the present suit on 5.9.1981 for possession of the suit land by specific performance of the agreement. Defendant No.5 was added as a party as he was recorded in cultivating possession of certain fields as a tenant. However, later on, the suit was withdrawn against him as he was found to be dead. The suit was contested by the defendants by filing a joint written statement. It was admitted that defendants No.1 to 3 entered into an agreement to sell dated 27.3.1981. Receipt of earnest money and last date for execution of the sale deed was also not disputed. According to them, when they attended the office of Sub Registrar for execution of the sale deed dated 13.7.1981, the plaintiff was not ready with the balance sale consideration and sought time which was extended upto 14.7.1981. However, the plaintiff was not ready with the balance sale consideration even on 14.7.1981, while the defendants were ready to execute the sale deed on receipt of the balance sale consideration. Their further case is that they had entered into an agreement to purchase some land in Uttar Pradesh on 13.5.1981 and were to get regular sale deed from those vendors upto July 18, 1981, but, since the plaintiff failed to get the sale RSA No.206 of 1984(O&M) 3 deed executed in terms of the agreement entered into with him, their agreement also failed and they suffered a lot. They accordingly pleaded that the plaintiff himself committed breach of the agreement as he was not having the balance sale consideration with him and was not entitled to the relief of specific performance. From the pleadings of the parties, the following issues were framed. “1. Whether the plaintiff is entitled to specific performance of the agreement dated 27.3.1981? OPP. 2. Whether the plaintiff is ready and willing to perform his part of the contract? OPP 3. Whether the defendants were ready to perform their part of contract, if so its effect? OPD 4. Relief.” On conclusion of evidence and after hearing learned counsel for the parties, the trial Court held that the plaintiff was entitled to specific performance of the agreement as he had been ready and willing to perform his part of the contract and the defendant-respondents were not ready and willing to perform their part of the agreement. Accordingly, the suit of the plaintiff for specific performance of the agreement was decreed. Aggrieved from the aforesaid judgment and decree of the trial Court, defendants filed an appeal. Vide impugned judgment and decree dated 13.9.1983, the Lower Appellate Court accepted the appeal while holding that the plaintiff was not willing to perform his part of the contract and therefore, the trial Court was wrong in decreeing the suit for specific performance of the contract and thus, the decree of the trial Court was modified and it was held that the plaintiff-appellant was entitled to refund of earnest money of Rs.30,000/- with interest from the date of agreement till the date of passing of the judgment at the rate of 12% per annum. RSA No.206 of 1984(O&M) 4 Accordingly, the decree for a sum of Rs.38,700/- was passed in favour of the defendant-respondents. Not satisfied with the aforesaid judgment and decree of the Lower Appellate Court, the plaintiff has approached this Court by filing the instant appeal. The appeal was admitted vide order dated 6.3.1984. The defendant-respondents also preferred cross-objections against the judgment and decree of the Lower Appellate Court i.e. Cross Objections No.19-C of 1984 against the decree of refund of earnest money. It may also be noticed that during the course of hearing, the learned counsel for the appellant submitted that the following substantial questions of law arise in this appeal: “1. Whether it is essential to allege and prove that the vendor/vendee was ready and willing to sell/purchase the land in dispute under Section 10 of The Specific Relief Act 1963? 2. Whether the Court can grant the relief of specific performance under Section 10 of The Specific Relief Act 1963, when the agreement to sell provides for liquidated damages in case of breach of contract? 3. Whether the findings on facts given by the First Appellate Court are perverse and liable to be set aside by way of the present appeal?” On the other hand, learned counsel appearing on behalf of the respondents also submitted that the following substantial questions of law arise in favour of the defendant-respondents from the impugned judgment and decree: RSA No.206 of 1984(O&M) 5 “1. Whether vendee can claim back the earnest money if he commits the breach of agreement? 2. Whether the amount of earnest money stand forfeited as per the agreement in view of the provision of the Specific Relief Act, 1963? 3. Whether the Distt. Judge has no jurisdiction to direct Gian Singh and his son respondent/cross objectors to refund Rs.30,000/- or to pay any interest as there was bread of agreement on the part of the appellants? 4. Whether the respondent/cross objector are entitled damages from the appellant on the breach of agreement/contract under the provisions of Specific Relief Act? 5. Whether the finding of the ld. Distt. Judge legal and liable to upheld except finding of returning the earnest money along with interest?” In support of his case, learned counsel for the appellant has also placed reliance upon a judgment of the Hon'ble Supreme Court of India in S.V.R Mudaliar (Dead) by LRs v. Rajabu F. Buhari (Mrs).Dead) by LRs and others (1995)4 SCC 15 to contend that merely because sufficiently long period has elapsed in the decision of the case that itself will not disentitle the appellant from the relief claimed. Learned counsel for the appellant also placed reliance upon the judgments in P.D'Souza v. Shondrilo Naidu (2004) 6 SCC 649, Motilal Jain v. Smt. Ramdasi Devi (Smt.) and others 2000(2) Cur LJ 419 (SC) = 2000(6) SCC 420 , Metta Rama Bhatlu v. Metta Annayya Bhatlu, AIR 1926 Mad 144 Dina Nath Bhandari v. Parkash Chand Jain 1972 PLR 614 (DB) Ajit Parshad Jain RSA No.206 of 1984(O&M) 6 v. N.K. Widhani AIR 1990 Delhi 42 Pasumarti Ramulu v. Nuthi Anantha Ramulu AIR 1966 AP 70 to contend that where the agreement to sell in question has been proved and the plaintiff was ready and willing to perform his part of the agreement in question, money would not be adequate compensation for breach and in such cases specific performance of the agreement to sell in question is to be allowed. Thus, the pith and substance of the arguments and substantial questions of law as raised by the appellant before this Court is that in the present case, agreement in question stood proved and the appellant also proved that he was ready and willing to perform his part of the contract and therefore, the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money and in such cases, Section 10 of the Specific Relief Act, provides for enforcement of specific performance of the contract by execution of the sale deed of the property in question. On the other hand, argument raised on behalf of the respondents is that the Lower Appellate Court has recorded a finding to the effect that the appellant was not ready to perform his part of the contract and therefore, the respondents were entitled to forfeiture of the earnest amount. I have heard learned counsel for the parties. As noticed above, the parties are ad idem regarding the execution of the agreement in question whereby defendants agreed to sell the suit land to the plaintiff and received earnest money of Rs.30,000/- and the only dispute is with regard to readiness and willingness of the parties to execute their part of the agreement and its effect. According to the pleadings, it is the specific stand of the appellant that he was willing to perform his part of the agreement and he RSA No.206 of 1984(O&M) 7 was also present in the office of Sub Registrar on the stipulated date along with necessary expenses and balance sale consideration but the respondents failed to turn up whereas the stand taken by the respondents is that the plaintiff was not ready with the sale consideration on 13.7.1981 and had sought time which was extended by one day i.e. upto 14.7.1981. Even on 14.7.1981, the appellant was not ready with the sale consideration while the respondents were ready to execute the sale deed on receipt of the balance sale consideration. The further case of the respondents is that they entered into an agreement to purchase some land in Uttar Pradesh on 13.5.1981 and were to get regular sale deed executed from those vendors upto the July 18,1981 but since the plaintiff-appellant failed to get the sale deed executed in terms of the agreement entered into with him, their agreement also failed on account of which they suffered a lot. Thus, the respondents pleaded that the appellant himself committed breach of the agreement as he was not having the balance sale consideration and was not entitled to the relief of specific performance. There is no challenge to the fact that on July 13, 1981, both the parties were present in the Office of Registrar (Ajnala) and thereafter, the matter was postponed and it was agreed that the sale deed would be completed on July 14, 1981. A writing (Ex.P-2) on the reverse of the agreement in question was made whereby it was agreed between the parties that the sale deed will be completed on July 14, 1981. There is an affidavit of Karnail Singh dated 14.7.1981 attested by the Executive Magistrate, Ajnala, on the record which would show his presence before the Sub Registrar at Ajnala on 14.7.1981. On the other hand, affidavit of Gian Singh respondent(Ex.D2) showing his presence in the office of Sub Registrar at Ajnala on 14.7.1981 is also on record. Thus, the fact remains that each of the parties was alleging that they had been ready RSA No.206 of 1984(O&M) 8 and willing to perform their part of the contract and the other party was at fault. In these circumstances, on reappreciation of evidence, the Lower Appellate Court keeping in view the stand taken by the parties and the circumstances emerging from the other facts established on record and the fact that the appellant was suspecting some legal defect in the sale deed and that the respondent had come from Uttar Pradesh to get the sale deed executed, reached to the conclusion that the appellant was not willing to perform his part of the contract. It is also relevant to mention that the question of readiness and willingness of the parties to execute the sale deed on the basis of the agreement in question is essentially a question of fact. The Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the appellant was not ready to perform his part of the contract. The evidence on record does not suggest that the findings of the Lower Appellate Court are perverse or based on no evidence. Thus, in these circumstances, it cannot be held that the findings of the Lower Appellate Court with regard to readiness and willingness of the parties are perverse. Again, it is well settled that if on appreciation of evidence, two views could be taken and the Lower Appellate Court had taken a particular view, the same is not to be interfered by this Court while exercising its jurisdiction under Section 100 CPC. There is no dispute with the proposition of law as canvassed by the appellant but the judgments relied upon by the counsel for the appellant has no application in the present facts and circumstances of the case as this Court has upheld the finding of the Lower Appellate Court that the plaintiff-appellant was not ready and willing to perform his part of the contract and therefore, he was not entitled to relief of specific performance of the agreement to sell in question. RSA No.206 of 1984(O&M) 9 Moreover, the Hon'ble Supreme Court of India in the case of Mademsetty Satyanarayana v. G. Yelloji Rao, AIR 1965 SC 1405, held that the jurisdiction to grant of a decree for specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. Further in P.D' Souza's case (supra), it was held that mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of Section 20(2) of the Act. Thus, keeping in view the aforesaid settled proposition of law and the fact that the appellant was not ready and willing to perform his part of the contract, the substantial questions of law raised by the appellant are answered against him holding that he is not entitled to specific performance of the agreement to sell in question. The questions raised on behalf of the respondent/cross- objectors could not be substantiated by the learned counsel for the respondents. Hence, the aforesaid substantial questions of law raised by the defendant-respondents are answered against them. Accordingly, while upholding the judgment of the Lower Appellate Court, this appeal along with cross-objections is dismissed. No order as to costs. . May 5, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.206 of 1984(O&M) 10 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.206 of 1984(O&M) Date of decision: .2010 Karnail Singh ......Appellant(s) Versus Gian Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sukant Gupta, Advocate for the appellant. Mr. Jagdish Manchanda, Advocate for the respondents. Rakesh Kumar Garg, J.