R.S.A.No. 3155 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3155 of 2008 Date of decision: 3.8. 2009 Sunil Kumar Garg and another ......Appellants Versus Usha Gupta .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. C.B.Goel, Advocate, for the appellants. **** SABINA, J. Plaintiff Usha Gupta filed a suit for specific performance and permanent injunction, which was decreed by the Civil Judge (Jr.Divn.) Panipat vide judgment and decree dated 6.2.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Panipat vide judgment and decree dated 13.12.2007. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the trial Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly stated the plaintiff's case, as set out in her pleadings is that the defendant No.1, being the owner in possession of the suit scheduled shop, executed agreement to sell the same on 13.9.2003, in her favour R.S.A.No. 3155 of 2008 2 after receiving earnest money to the tune of Rs.20,000/- and 1.2.2004 was settled as the appointed date for execution and registration of sale deed. Another sum of Rs.1,70,000/- was to be paid on 27.9.2003 and she duly issued a cheque in this respect. However, on 24.10.2003, defendant number 1 returned the said cheque through his employee and asked her to issue a fresh cheque as the previous cheque had been washed out. However, since her husband in whose custody the cheque book was, was out of station, therefore she asked the defendant number 1 to collect the fresh cheque on 25.10.2003. The defendant number 1, despite repeated telephonic messages, did not turn up and after waiting for him up to 4.11.2003 she served a legal notice upon him with a fresh cheque of requisite amount, thereby expressing her readiness and willingness to perform her part of the contractual obligations. Apprehending a premature breach, she brought a suit for permanent injunction even before the appointed date, and later on amended her pleadings with the leave of Court, to suit her claim. Her requests to the defendant number 1, including legal notices dated 21.1.2004 and 25.3.2004, have remained unattended, hence this suit. 3. Defendants were put to notice of the suit and R.S.A.No. 3155 of 2008 3 the same has been resisted by them by raising preliminary objections of maintainability, locus standi, cause of action, concealment of real and material facts, the suit being bad for mis-joinder and non-joinder of necessary parties, falsity and estoppels. On merits, execution of alleged agreement to sell and receipt of earnest money of Rs.20,000/- has been admitted and the remaining allegations have been disputed and controverted by pleading that the defendant number 1 never received any cheque from the plaintiff and a false story has been webbed by her. Since the amount of Rs.1,70,000/- was not paid on the stipulated date, therefore, the defendant number 1 has validly rescinded the contract and forfeited the earnest money. Receipt of notice dated 4.11.2003 has been denied and it has been further pleaded that the plaintiff, bu not performing her part of the contractual obligation, has waived her rights under the contract and the defendant number 1, being the owner of shop in dispute has every right to sell the same to any body and for any consideration. Now the defendant number 1 has entered into an agreement to sell the suit scheduled shop in favour of defendant number 2, who is already in possession thereof as a tenant and who was also not aware about the alleged R.S.A.No. 3155 of 2008 4 agreement to sell in favour of plaintiff. With this broad defence, dismissal of the suit with costs has been prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of permanent injunction and execution of sale deed? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit of the plaintiff is bad for mis- joinder and non-joinder of necessary parties? OPD 6. Whether the suit of the plaintiff is fake, frivolous and is liable to be dismissed ? OPD 7. Whether the plaintiff has not come to the court with clean hands? OPD 8. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for specific performance of agreement to sell dated 13.9.2003. In the present case, the R.S.A.No. 3155 of 2008 5 execution of the agreement to sell in question was not disputed by the defendants. They also admitted that earnest money of Rs.20,000/- had been paid but it was averred that the plaintiff had failed to pay Rs.1,70,000/- as agreed between the parties. Hence, the suit was liable to be dismissed. Agreement Ex/P-1 dated 13.9.2003 was executed between the parties with regard to sale of the property in question. The sale deed was to be executed on or before 1.2.2004. The plaintiff was also required to pay Rs.1,70,000/- through cheque to defendant No.1 on 27.9.2003. Defendant No.1 has denied the receipt of any such cheque. However, in his cross-examination, defendant No.1, while appearing in the witness box as DW-1, admitted that cheque Ex.P-3 dated 27.9.2003 had been received by him but it had not been issued from the account of the plaintiff. In these circumstances, the Courts below have rightly observed that defendant No.1 was not justified in returning the said cheque. Defendant No.1 was merely bound to take the money paid to him by the plaintiff and was not required to be bothered as to from which account the money was being paid. The said cheque was duly signed by the plaintiff but had been issued from the account of M/s Balaji Sales and the plaintiff was the sole proprietor of the said concern (as proved by PW-3 Amarjeet). The case of the plaintiff further was that a fresh cheque was issued to defendant No.1 Ex.P-9 dated 30.10.2003 but R.S.A.No. 3155 of 2008 6 defendant No.1 did not receive the same and notice Ex.P-4 issued to defendant No.1 on 4.11.2003, but the registered parcel Ex.P-8 was received back with the report of refusal. Defendant No.1, in his cross-examination admitted that the address given on notice Ex.P-4 was correct. In these circumstances, the Courts below rightly held that defendant No.1 had been creating hindrance in due execution of the agreement to sell. In order to establish that the plaintiff was ready and willing to perform her part of contract, she deposed that she remained present in the office of Sub Registrar on 3.2.2004 as 1.2.2004 and 2.2.2004 were holidays, but defendant No.1 did not turn up to perform his part of the contract. In this regard, the plaintiff also proved on record her affidavit attested by the concerned Executive Magistrate Ex.P-19. She also placed on record the Treasury Challan duly signed by the concerned Treasury Officer on 30.1.2004 with regard to purchase of requisite stamp papers. In these circumstances, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 03, 2009 anita