R.S.A. No. 262 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 262 of 2009 (O&M) Date of decision: 20.1.2009 Vijay Kumar ....Appellant Versus Kushal Thakar and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Arun Jain, Sr. Advocate, with Mr. Amit Jain, Advocate, for the appellant. Mr. Puneet Bali, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 12.12.2008 passed by the learned lower appellate Court vide which in a suit filed for specific performance of an agreement, the learned lower appellate Court has granted alternative relief of refund of double the amount of earnest money along with interest @ 12 per cent. The plaintiff brought a suit against the respondent/defendants claiming specific performance of agreement dated 3.8.1994 said to have been executed for sale of agricultural land measuring 14 bighas 8 biswas. The total sale consideration fixed was Rs.7,20,000/- and a sum of Rs.75,000/- was paid as earnest money at the time of execution of agreement. The sale deed was to be executed on or before 31.10.1994 after receiving the balance sale consideration. The plaintiff claimed that on 31.10.1994, the plaintiff/appellant R.S.A. No. 262 of 2009 (O&M) -2- went to the office of Sub Registrar, Rajpura with the balance sale consideration and other expenses to get the sale deed executed in his favour and got himself marked present by getting his affidavit attested before the Oath Commissioner. The case set up by the plaintiff further was that defendants No. 1 to 3 could not execute the sale deed on 31.10.1994, and with mutual consent the date of execution of the sale deed was extended upto 15.5.1995 vide writing dated 31.10.1994. The plaintiff claimed that he always remained ready and willing and was still ready and willing to perform his part of contract and get the sale deed executed in his favour as per terms of the agreement dated 3.8.1994. The plaintiff claimed that again on 15.5.1995, he had gone to the office of the Sub Registrar, Rajpura, with balance sale consideration but defendants No. 1 to 3 did not come present. He again got himself marked present by getting an affidavit attested from the Oath Commissioner. Thus, it was claimed that defendants No. 1 to 3 committed breach of contract and, therefore, he was entitled to get the agreement dated 3.8.1994 enforced by way of decree of specific performance. The suit was contested by respondent/defendants No. 1 to 3 by controverting the averments made in the plaint. The stand taken by the defendant/respondents was that the appellant/plaintiff did not have the balance sale consideration on 31.10.1994 and he was never ready and willing to get the sale deed executed in his favour. The affidavit prepared was said to be false and the contents were also disputed. It is also the case of the defendant/respondents that on the request of plaintiff, date for execution of sale deed was extended upto 15.5.1995. However, in spite of extension, the plaintiff in order to show his cleverness filed a suit for permanent injunction in April, 1995 against R.S.A. No. 262 of 2009 (O&M) -3- the defendant/respondents restraining them from alienating the suit land to any person and ex parte stay order was granted in favour of the plaintiff/appellant and by taking advantage of the said stay order, he did not get the sale deed executed in his favour as he had no money to pay the balance consideration of Rs.6,45,000/- plus other expenses. The suit filed by the plaintiff became infructuous on 16.5.1995 after the expiry of date of execution of sale deed. A positive stand was taken by the defendant/respondents that on 15.5.1995 they remained present in the office of Sub Registrar, Rajpura, but the plaintiff failed to come. It was claimed that the plaintiff had committed breach of contract. It was also pleaded that the plaintiff had no right to claim damages from the defendants. Some other preliminary objections were also taken. Defendant No. 4 filed a separate written statement, with which we are not concerned in the present case as he chose not to impugne the judgment and decree passed by the learned trial Court in favour of the plaintiff/appellant. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether plaintiffs have ready and willing to perform his part of contract on 15.5.95? OPP 1 A. Whether the agreement dated 3.8.1994 is a result of fraud? OPD 2. Whether in alternative, plaintiffs are entitled to recover Rs.7,20,000/-? OPP 2 A. Whether plaintiffs have withdrawn the amount of Rs.50,000/- which was given by plainitff to defendant as advance money from his account from the bank? OPP 3. Whether plaintiffs have got no locus-standi to file the R.S.A. No. 262 of 2009 (O&M) -4- present suit? OPD 4. Relief." The learned trial Court held that the plaintiff/appellant was always willing and still willing to perform his part of the contract and that was the position also on 15.5.1995. Thus, issue No. 1 was decided in favour of the appellant/plaintiff. Issue No. 1 A was also decided in favour of the plaintiff/appellant and against the defendants. Issue No. 2 was not answered by the learned trial Court in view of the finding recorded that the plaintiff/appellant was entitled to specific performance of the contract. Issue No. 2 A was also decided against the defendants and in favour of the plaintiff/appellant. The learned Court further held that the plaintiff/appellant has the locus standi to maintain the suit and, thus, issue No. 3 also stood decided in favour of the plaintiff/appellant. The respondent/defendants preferred an appeal against the judgment and decree granted by the learned trial Court ordering the specific performance of the agreement to sell. The learned lower appellate Court reversed the finding on issue No. 1 and held that the plaintiff/appellant had failed to prove that he was willing and ready to perform his part of contract. The learned lower appellate Court took notice of the fact that date fixed for the execution of sale deed was 15.5.1995 and on the date fixed, the plaintiff/appellant was not present for registration of the sale deed. The learned Court observed that the affidavit got attested by the plaintiff/appellant before the Oath Commissioner could not be taken into consideration to prove that the plaintiff/appellant was willing to perform his part of the contract. In support of this finding, reliance was placed by the learned appellate Court on the judgment of this Court in Gurdial Sarup Vs. Kaushalya Kapur and others, 2003(1) CCC 602 wherein this Court has been pleased to lay R.S.A. No. 262 of 2009 (O&M) -5- down as under: - “Agreement to sell – specific performance – Suit for – Ready and willing – Merely by getting an affidavit attested from an oath commissioner without getting presence marked by Sub Registrar does not prove readiness and willingness of plaintiff – Plaintiff did not serve any notice upon the defendant till he filed the suit. Held, first appellate Court rightly found that plaintiff was not ready and willing to perform his part of the contract.” The plea of the appellant/plaintiff that defendant/respondents have failed to get the income tax clearance for execution of sale deed was rejected by observing that at no stage prior to 15.5.1995 it was stated by the plaintiff/appellant that the defendants should get the income tax clearance for execution of the sale deed. The learned Court thus held that as the plaintiff/appellant has failed to show his willingness to perform his part of contract, therefore, in view of Section 16 of the Specific Relief Act, he was not entitled to get the contract specifically enforced. The learned Court further observed that, however, he was entitled to decree for a sum of Rs.1.5 lac i.e. double amount of earnest money along with interest @ 12 per cent. The learned Court further observed that the appellant would not be entitled to an amount of Rs.7.20 lac but only Rs.1.5 lac. This finding has been recorded in view of issue No. 2 as framed by the learned trial Court. Mr. Arun Jain, learned senior counsel, appearing on behalf of the appellant contends that the judgment and decree passed by the learned lower appellate Court suffers from non-application of mind as the learned lower appellate Court wrongly observed that the appellant was not entitled to alternative relief of recovery of Rs.7.20 lac but only Rs.1.5 R.S.A. No. 262 of 2009 (O&M) -6- lac even though no such finding was recorded by the learned trial Court. The contention of the learned senior counsel, therefore, is that this would show non-application of mind by the learned lower appellate Court. However, this plea cannot be accpeted merely because word “trial Court” has been mentioned is no ground to hold that the learned lower appellate Court had not applied mind once the detailed judgment has been passed meeting all the contentions raised by respective parties. Once the learned lower appellate Court was of the view that the plaintiff/appellant was entitled to alternative relief of damages, the learned Court rightly held that under issue No. 2, the plaintiff/appellant cannot claim a decree for Rs.7.20 lac but only Rs.1.5 lac. The learned senior counsel for the appellant also contends that the finding of the learned lower appellate Court that the appellant/plaintiff was not willing to perform his part of contract is contrary to the evidence brought on record. The contention of the learned senior counsel is that in the statement, defendant/respondents had admitted that the plaintiff/appellant was present in the office of the Sub Registrar on 15.5.1995. However, this plea also cannot be accepted. The statement made by the witness is, that even in case, the plaintiff was present he must have hidden himself after seeing that the defendant/respondents have reached there for execution of the sale deed and it was for this reason that instead of marking his presence before the Sub Registrar, he chose to get an affidavit attested from the Oath Commissioner. Thus, it cannot be said that the finding recorded is outcome of misreading of evidence. The learned senior counsel thereafter contended that in the present case, it was admitted case that the defendant/respondents had R.S.A. No. 262 of 2009 (O&M) -7- failed to perform their part of contract in not getting income tax clearance for execution of sale deed. In that eventuality, it could not be said that the plaintiff/appellant was not willing to perform his part of contract rather the evidence on record shows that it was the defendant/respondents, who breached the contract. This contention of the learned senior counsel also cannot be accepted as the plaintiff was to stand on his own legs and prove that he was always ready and willing to perform his part of contract and was still willing to do so. Once it was proved on record that the plaintiff/appellant had failed to appear before the Sub Registrar for registration of the sale deed, no fault can be found with the findings recorded by the learned lower appellate Court holding that plaintiff has failed to prove his readiness and willingness to perform his part of contract. Thus, it would be seen that the findings recorded by the learned lower appellate Court are based on appreciation of evidence brought on record. Merely because some other view is possible than the one arrived at by the learned lower appellate Court cannot be a ground to interfere with the findings of fact recorded by the final Court of fact and cannot be said to be a substantial question of law so as to enable this Court to interfere with the findings recorded. No merit. Dismissed. (Vinod K. Sharma) Judge January 20, 2009 R.S.