R. S. A. No. 3909 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3909 of 2009 Date of Decision : March 04, 2011 Harjeet Singh Gujral .... Appellant Vs. Surender and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kul Bhushan Sharma, Advocate for the appellant. None for the respondents. * * * L. N. MITTAL, J. (Oral) : Plaintiff Harjeet Singh Gujral, who was successful in the trial court, but has been partly unsuccessful in the lower appellate court, has filed the instant second appeal. Case of the plaintiff-appellant is that defendants agreed to sell the suit land measuring 39 kanals 06 marlas to the plaintiff @ Rs.1,15,000/- per acre and received Rs.2,00,000/- as earnest money and executed agreement dated 24.03.1999. In the agreement, however, rate was inadvertently mentioned to be Rs.1,45,000/- per acre. Sale deed was to be R. S. A. No. 3909 of 2009 2 executed up to 23.06.1999. On 15.04.1999, defendant no.1 received further amount of Rs.10,000/- on behalf of all the defendants and mentioned the correct rate as Rs.1,15,000/- per acre and extended the date of sale deed up to 23.08.1999 vide receipt dated 15.04.1999. Thereafter, defendant no.2 also received Rs.30,000/- on 08.06.1999 on behalf of all the defendants and executed separate receipt. Mutation of inheritance of Jagdish – father of defendant no.1 was to be got corrected in his favour before executing the sale deed. Plaintiff was always ready and willing to perform his part of the contract, but defendants committed breach thereof. Accordingly, plaintiff sought specific performance of the impugned agreement along with ancillary reliefs. Defendants, in the written statement, admitted the execution of the impugned agreement, but pleaded that plaintiff has fabricated the same by reciting payment of Rs.2,00,000/-, whereas in fact, defendants did not receive the said amount of Rs.2,00,000/-. However, receipt of Rs.10,000/- by defendant no.1 on 15.04.1999 and receipt of Rs.30,000/- by defendant no.2 on 08.06.1999 was admitted. The defendants alleged that they have always been ready and willing to perform their part of the contract, but plaintiff was not ready and willing to perform his part of the contract. The defendants even went to the office of Sub Registrar on 23.06.1999. It was denied that date of execution of sale deed was extended to 23.08.1999. Various other pleas were also raised. R. S. A. No. 3909 of 2009 3 Learned Additional Civil Judge (Senior Division), Faridabad, vide judgment and decree dated 11.09.2008, decreed the plaintiff's suit. However, first appeal preferred by the defendants has been partly allowed by learned Additional District Judge, Faridabad, vide judgment and decree dated 24.03.2009 and thereby, suit of the plaintiff stands decreed for specific performance of the impugned agreement qua share of defendant no.1, whereas suit for specific performance of the agreement qua defendants no.2 to 4 stands dismissed, but they have been directed to refund the earnest money of their share to the plaintiff. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file including files of the courts below, whereas none has appeared for respondents in spite of last opportunity granted for today. None either appeared for the respondents on the preceding three dates of hearing. Execution of the impugned agreement has been admitted by the defendants in their written statement as well as in their reply to application for temporary injunction. Defendants have also admitted receipt of Rs.10,000/- by defendant no.1 on 15.04.1999 and receipt of Rs.30,000/- by defendant no.2 on 08.06.1999, vide receipts Ex.PW-1/4 and Ex.PW-1/5 respectively. Perusal of these receipts also reveals that there is reference to agreement dated 24.03.1999 in these receipts. Defendants have also pleaded that they have always been ready and willing to perform their part R. S. A. No. 3909 of 2009 4 of the contract. Thus, execution of the impugned agreement by defendants stand admitted. The said agreement has also been proved by the plaintiff by leading cogent evidence. Payment of Rs.2,00,000/- by the plaintiff to the defendants through impugned agreement is also proved because said payment is recited in the impugned agreement Ex.PW-1/2 and there is also separate receipt Ex.PW-1/3 for the same. The agreement as well as the receipt also bear photographs of all the four defendants. There is also plaintiff's evidence to prove the said payment of Rs.2,00,000/-. When the agreement stands admitted and payment of Rs.2,00,000/- is recited therein, the defendants' version, that they did not receive the said amount, cannot be believed. Recital regarding said payment in the agreement has not been added subsequently, as is apparent from naked eye perusal of the impugned agreement. Consequently, there is no doubt that defendants have received Rs.2,00,000/- on the date of agreement, as mentioned in the agreement and also separate receipt of even date. In addition to the aforesaid, both the courts below have also found concurrently that the impugned agreement was executed and plaintiff paid Rs.2,00,000/- to the defendants. The plaintiff has pleaded that he agreed to purchase the suit land @ Rs.1,15,000/- per acre, but inadvertently, the rate was mentioned to be Rs.1,45,000/- per acre in the impugned agreement, which was R. S. A. No. 3909 of 2009 5 subsequently corrected to be Rs.1,15,000/- per acre vide receipt dated 15.04.1999 (Ex.PW-1/4) executed by defendant no.1. However, this stand of the plaintiff regarding agreed rate of sale of the suit land cannot be accepted. The agreement clearly stipulates that the agreed rate is Rs.1,45,000/- per acre. The figure is also written in words. Receipt dated 15.04.1999 executed by defendant no.1 alone could not bind defendants no.2 to 4 regarding reduced rate of Rs.1,15,000/- per acre. In addition to it, plaintiff affirmed affidavit dated 23.06.1999 (Ex.PW-1/6) to depict that he was ready and willing to perform his part of the contract and he appeared before the Sub Registrar on that date. In this affidavit, the plaintiff has himself mentioned the agreed sale price to be Rs.1,45,000/- per acre. Consequently, it is held that the plaintiff is liable to pay sale consideration @ Rs.1,45,000/- per acre. There was no sufficient ground for the lower appellate court to decline the relief of specific performance of the impugned agreement qua defendants no.2 to 4. There is no reason to make distinction between the case of defendant no.1 and that of defendants no.2 to 4. The appellate court observed that the plaintiff was not ready and willing to pay sale consideration at the agreed rate of Rs.1,45,000/- per acre, and therefore, the plaintiff is not entitled to specific performance of the impugned agreement against defendants 2 to 4, although he is entitled to said relief against defendant no.1, who vide receipt dated 15.04.1999, reduced the rate to R. S. A. No. 3909 of 2009 6 Rs.1,15,000/- per acre. This distinction drawn by the lower appellate court is unsustainable. As noticed herein before, the plaintiff appeared before the Sub Registrar on 23.06.1999 and also affirmed affidavit (Ex.PW-1/6) to demonstrate his readiness and willingness to perform his part of the contract. In this affidavit also, the plaintiff mentioned the agreed sale price @ Rs.1,45,000/- per acre. It is thus manifest that the plaintiff was ready and willing to perform his part of the contract by paying the sale price @ Rs.1,45,000/- per acre. Consequently, the plaintiff is entitled to relief of specific performance of the agreement against defendants no.2 to 4 also. For the reasons aforesaid, I find that following substantial question of law arises for determination in the instant second appeal :- “Whether finding of the lower appellate court, that plaintiff was not ready and willing to perform his part of the contract by paying sale consideration @ Rs.1,45,000/- per acre, is illegal and perverse and therefore, unsustainable in law ?” In view of the discussion already made, the aforesaid substantial question of law is answered in affirmative i.e. in favour of the plaintiff-appellant. The plaintiff has been ready and willing to perform his part of the contract and therefore, he is entitled to specific performance of the impugned agreement in toto. R. S. A. No. 3909 of 2009 7 As a necessary corollary of the discussion aforesaid, the instant second appeal is allowed. Judgment and decree of the lower appellate court are modified and judgment and decree of the trial court are restored. However, it is clarified that the plaintiff shall pay the sale price @ Rs.1,45,000/- per acre. March 04, 2011 ( L. N. MITTAL ) monika JUDGE