RSA No.2598 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2598 of 2005 Date of Decision:23.12.2008 Uma Gupta ....appellant Versus Surender Kumar Gupta .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Sanjay Kumar,Advocate for Mr.Gorakh Nath, Advocate for the appellant **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby her suit for specific performance of the agreement to sell dated 26.05.1990 has been dismissed. As per the averments made in the plaint, defendant agreed to sell the land owned by him measuring 944 Sq. yards at the rate of Rs.190 per sq. yard for a total sale consideration of Rs.1,80,000/- vide agreement to sell executed by defendant in favour of the plaintiff on 26.05.1990. Plaintiff also paid a sum of Rs. 20,000/- as earnest money and it is also pleaded that a sum of Rs.80,000/- was also paid by the plaintiff to the defendant vide bank draft dated 22.09.1990 drawn on bank of Baroda, Service Branch, Ahmedabad towards part payment of balance sale consideration. The land was got vacated from the tenants of Patti Jatan in the month of September 1992 and from the tenants of Patti Musalmaan on RSA No.2598 of 2005 2 14.11.1990. The expenses towards the share of the defendant came to Rs.15,000/- and now only remaining amount of the total sale consideration remains to be Rs.65,000/- which is to be paid by the plaintiff to the defendants in pursuance of the agreement dated 26.05.1990. Plaintiff always remained ready and willing to perform her part of the contract but the defendant had been avoiding and therefore a legal notice was served upon him on 12.4.1993 stating that the registered sale deed shall be executed by her by 30.04.1999. But the said registered sale deed was never executed by the defendants. It is the prayer of the plaintiff that his suit for special performance of the agreement dated 26.05.1990 be decreed with costs. In the written statement filed on behalf of the defendant, it was admitted that the son of the defendant received a sum of Rs.20,000/- against sale of 18 biswas of land. But in the alleged writing there was no mention of any loan as highlighted in the plaint. Neither any date was fixed for the execution and registration of the sale deed. It was denied that Mr.S.K.Gupta was holder of power of attorney on behalf of the defendant and, therefore, the question of entering into any agreement on behalf of the defendant did not arise. Defendant refused having received any amount of Rs.80,000/- by draft as alleged by the plaintiff. It was also stated that the plaintiff was never ready and willing to perform her part of the contract in consideration of writing dated 26.05.1990. It was also highlighted that agreement in question was vague and ambiguous. It was also stated that plaintiff herself was not present at the time of execution of the alleged writing dated 26.05.1990. Further, it was admitted that the said writing was written at House No.2550 belonging to Ram Kumar, Sita Ram Bazaar, Delhi. The plaintiff has stated to have played a fraud upon the defendant, as the husband of the plaintiff has also entered into an agreement with Hukam Chand s/o Ram Sarup R/o Model Town, Sonepat, in which the RSA No.2598 of 2005 3 husband of the plaintiff Subhash Gupta and the father of the plaintiff Dipti Parsad have alleged that they entered into agreement to purchase a share out of these killa numbers @ Rs. 400 per Sq. yards and the expenses to be paid by the tenant for vacating the land shall be borne by the plaintiff i.e. Subhash Gupta and Dipti Parsad. The writing dated 26.5.1990 in the present case is a product of fraud where Subhash Gupta and Dipti Parsad filed a suit against Hukam Chand which is pending in Civil Court at Sonepat. With these submissions, it was prayed that the suit of the plaintiff be dismissed with costs. Replication was filed wherein the plaintiff has denied the averments of the written statement as incorrect and has reiterated the averments of the plaint as being correct. From the pleadings of the parties, the following issues were framed vide order dated 14.6.2000:- 1.Whether any agreement/writing dated 26.5.1990 was executed by the defendant through his GPA in favour of the plaintiff in respect of the suit property?OPP. 2.Whether any part payment of sale consideration was paid by the plaintiff to the defendant? OPP. 3.Whether the plaintiff was/is ready and willing to perform her part of the contract? OPP. 4.Whether the plaintiff is entitled to the decree of specific performance of the contract? OPP. 5.Whether the plaintiff's husband has committed any fraud upon the defendant, as alleged in the written statement?OPD. 6.Relief. After hearing, the Lower Court has decided issues No. 1, 2 and 5 in favour of the plaintiff while issues No. 3 & 4 in favour of the defendant and against the plaintiff. Resultantly, the suit of the plaintiff for specific performance of the agreement to sell dated 26.5.1990 was RSA No.2598 of 2005 4 dismissed but howsoever, in light of the principles of justice, equity and good conscience, the plaintiff was held entitled to recover the amount of Rs. 1,00,000/- paid by her to the defendant with interest at the rate of 12% per annum from the date of filling of the present suit till the date of the judgment and with future interest at the rate of 6% per annum from the date of the judgment till the realization of the whole amount with costs of the proceedings of the suit. Feeling aggrieved against the aforesaid judgment and decree of the trial Court the defendant as well as plaintiff filed appeals. Vide impugned judgment and decree dated 04.03.2005, the Additional District Judge, Sonepat, dismissed the appeal filed by the plaintiff- appellant. However, the appeal filed by the defendant-respondent was partly accepted and it was held that plaintiff was only entitled to recover from the defendant a sum of Rs. 20,000/- at the rate of Rs. 6% per annum from the date of payment or agreement till its full and final realization. To that extent the judgment and decree passed by learned Lower Court dated 24.12.2003 under challenge was modified. The suit of the plaintiff for specific performance of agreement to sell dated 26.5.1990 was however dismissed. However, the appellant-plaintiff was held entitled to a sum of Rs. 20,000/- from the defendant along with interest at the rate of 6% per annum from the date of execution of agreement dated 26.05.1990 till its full and final realization. Still not satisfied, the plaintiff has filed the present appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the appellant. I find no merit in this appeal. One thing is clear that the defendant represented by his son has admitted the execution of the document Ex.P-6. Therefore, the findings of the Lower Appellate Court on issue No.1 and 2 have been recorded, correctly. However, in the present case by no stretch of RSA No.2598 of 2005 5 imagination, it can be stated that the plaintiff was ready and willing to perform her part of the contract because firstly the plaintiff has not appeared in the witness box and only the power of attorney PW3 has come forward. Moreover, the power of attorney Ex.P-7 is a document which has not been proved by any witness. From the facts established on record, the plaintiff did nothing from 26.05.1990 till the filing of the present suit on 10.05.1993. No explanation is forthcoming as to why the plaintiff remained silent for such a long period. Even the legal notice given by the plaintiff for the first time after the execution of the writing Ex.P-6, is dated 12.04.1993. Thus, the plaintiff did not do anything from 26.05.1990 to 12.04.1993 to assert her legal right. The element of readiness and willingness is to be proved by the plaintiff from the day of the execution of the writing till the time of the filing of the present suit. Under Section 16 of the Specific Relief Act the Court is not bound to grant relief of specific performance to the plaintiff who has not complied with the requirements of clauses (a), (b) & (c ) thereof. The Court may not grant relief of specific performance if plaintiff fails to aver and prove that he has performed or has always been ready and willing to perform his part of agreement of which he seeks specific performance. It is always open to the defendant to contend and establish that requirement of Section 16 has not been complied with. Moreover the attorney of the plaintiff while appearing as PW3 has himself admitted 2/3rd portion of the suit property to have been acquired by the Sate Govt. of Haryana. Merely because no date and time was fixed in the agreement for execution and registration of the sale deed does not permit the plaintiff to sit quietly at home and come forward to enforce her legal right at the fag end of the period of limitation which shows that the plaintiff was never ready and willing to perform her part of the contract. Her own act and conduct, lapse of time, careless attitude goes a long way to show that the plaintiff was RSA No.2598 of 2005 6 never ready and willing to perform her part of the contract and thus no fault can be found with the impugned judgment and decree. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 23.12.2008 neenu