R.S.A. No.1679 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1679 of 2010(O&M) Date of Decision:08.07.2011 Rajan Goel ......Appellant Versus J.N.Aggarwal and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Vivek Suri, Advocate, for the appellant. Mr.Avnish Mittal, Advocate, for respondent No.1. Nemo for respondent Nos.2 and 3. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, which require to be noticed for the limited purpose of deciding the sole controversy, involved in the instant appeal and emanating from the record are, that J.N.Aggarwal-respondent No.1-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for recovery of Rs.2,00,000/- against Usha Sharma, Radhey Ballabh Sandhi-respondent Nos.2 & 3-defendant Nos.1 & 2 and Rajan Goel-appellant-defendant No.3(for short “the defendants”), inter alia, pleading that an agreement dated 08.04.2002 was executed between the parties, vide which the defendants agreed to sell their plot in dispute to him(plaintiff). It was claimed that the plaintiff has always been ready and willing and is still ready and willing to perform his part of agreement, but the defendants had not been ready and willing to perform their part of agreement. The plaintiff went to the office of Sub-Registrar along with balance sale consideration and expenses etc. for registration of the sale-deed on 25.06.2002, as 23.06.2002 was Sunday and it was a gazetted holiday on 24.06.2002. The plaintiff got his R.S.A. No.1679 of 2010 2 affidavit attested in token of his presence of willingness, but the defendants did not turn up for registration of the sale-deed on that day. Later on, on enquiry, it revealed that the defendants have failed to get the demarcation done and to obtain 'No Objection Certificate' and Income Tax Clearance Certificate, which were the condition precedents for registration of the sale-deed. According to the plaintiff, he repeatedly requested the defendants to perform their part of contract and sent a registered legal notice dated 19.08.2002 separately to all the defendants, which was received by defendant No.1, whereas the notice of defendant No.2 was returned undelivered. Defendant No.3 sent his reply through his Advocate on 25.07.2002. 2. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiff that, the defendants did not perform their part of contract, failed to obtain 'No Objection Certificate' and Income Tax Clearance Certificate etc., which indicate their unwillingness in this respect. Although, he(plaintiff) always remained ready and willing to perform his part of contract. On the basis of aforesaid allegations, the plaintiff filed the suit for recovery on account of agreement to sell, in the manner depicted hereinabove. 3. The defendants contested the suit and filed the written statement, taking certain preliminary objections of, maintainability of the suit, cause of action, concealment of facts and locus standi of the plaintiff. However, the factum of the execution of the agreement to sell dated 08.04.2002 between the parties was admitted. 4. The case set up by the defendants, in brief, insofar as relevant was that on 25.06.2002 , defendant No.3 was present in the office of Sub-Registrar for execution of the sale-deed, but the plaintiff did not turn up with the balance sale consideration and the requisite amount of stamp papers, due to which, the execution of the sale-deed could not take place. It was claimed by them that in terms of the agreement to sell, the amount of earnest money of Rs.1,00,000/- R.S.A. No.1679 of 2010 3 stands forfeited. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the controversy, as depicted in its judgment and the case was slated for evidence of the plaintiff. 6. The parties to the lis, in order to substantiate their respective pleaded stands, brought on record oral as well as the documentary evidence in this respect. 7. The trial Court decreed the suit of the plaintiff by way of impugned judgment and decree dated 10.10.2007. The appeal filed by appellant-defendant No.3 was dismissed as well by the first Appellate Court by virtue of impugned judgment and decree dated 06.02.2010. 8. Appellant-defendant No.3 still did not feel satisfied and preferred the present regular second appeal. 9. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal. 10. Ex facie, the argument of the learned counsel that since there is no specific pleading in the plaint with regard to non-issuance of 'No Objection Certificate' and Income Tax Clearance Certificate, so, the plaintiff is estopped from claiming that the defendants did not perform their part of contract, is not only devoid of merit but misconceived as well. 11. As is evident from the record that, the execution of the agreement to sell dated 08.04.2002 and the payment of earnest money between the parties are not disputed. According to the plaintiff that the defendants neither got the plot in dispute demarcated, nor obtained the 'No Objection Certificate' and Income Tax Clearance Certificate etc., which are condition precedents for registration of the sale-deed. Thus, they have not performed their part of the contract. On the R.S.A. No.1679 of 2010 4 contrary, the defendants claimed that the plaintiff was at fault. Both the Courts below, after taking into consideration the entire evidence on record, have recorded a finding of facts that the defendants have failed to demarcate the plot in dispute and to obtain the 'No Objection Certificate' and Income Tax Clearance Certificate etc. The mere fact that the plaintiff has omitted to elaborate in the plaint that the defendants were required to obtain 'No Objection Certificate' and Income Tax Clearance Certificate etc. and proper demarcation of the plot, ipso facto is not sufficient ground, to non-suit the plaintiff in this regard. If, certain statutory conditions are imposed by the local/statutory authorities, to be performed by the owners before registration of the sale-deed of immovable property, then the defendants are legally required to comply with the same. In the absence of proper demarcation, 'No Objection Certificate' and Income Tax Clearance Certificate etc., no sale-deed could legally be registered. Therefore, it was the legal duty of the defendants to obtain 'No Objection Certificate' and Income Tax Clearance Certificate and properly demarcate the plot in question, before registration of the sale-deed. If the defendants have failed to comply with the indicated conditions, then to me, the Courts below have rightly held that they failed to perform their part of contract in this relevant connection. 12. To me, the trial Court has rightly decreed the suit for recovery filed by the plaintiff by means of impugned judgment and decree dated 10.10.2007. The decision of the trial Court was upheld by the first Appellate Court through the medium of impugned judgment and decree dated 06.02.2010, the operative part of which is, as under:- “Now coming on the point of readiness and willingness of the plaintiff to honour the agreement to sell Ex.P2. It is true that it is for the plaintiff to show that he was/is always willing to perform his part of contract and did not commit breach of the terms of agreement. Plaintiff as PW4 and his son as PW1 categorically stated that they have been ready and willing to perform their part of agreement throughout but the defendant did not honour the same and committed breach of it. Both plaintiff and defendant testified that on 25.6.2002 they visited the office of Sub Registrar, Jagadhri as 23.6.02, the agreed date of registration of sale deed was turned out to be Sunday and 24.6.02 was a gazetted holiday. The plaintiff testified that he R.S.A. No.1679 of 2010 5 was ready with money for giving the remaining sale consideration and bearing all the other expenses. His oral account is corroborated by his son/PW1. They also stated that they remained present in the office of Sub Registrar throughout the day on 25.6.02 but defendants did not turn up. They got their presence marked by getting their affidavit attested. To substantiate their version, the plaintiff tendered on record his affidavit Ex.P4. Plaintiff PW4 also testified that he sent a registered notice Ex.P5 to the defendants, despite that they did not honour the agreement. He also testified that at that time he was having Rs.15,33,403/- with him in the shape of saving accounts, FDRs, postal deposits etc., and tendered their copies Ex.P11 to Ex.P22. Contrary, no evidence has been led by the respondent to rebut the aforesaid evidence except the statement of respondent as RW1, wherein he alleged plaintiff having no sufficient funds to honour the agreement and despite their offer by way of their reply Ex.R5 to get the sale deed executed within 30 days, plaintiff did not get the sale deed executed. Bare denial of respondent is not sufficient in presence of the documentary evidence Ex.P11 to Ex.P22 which shows that the plaintiff was having sufficient money at his disposal to meet the expenses of the execution and registration of the sale deed. It was contended by counsel for appellant that there is no evidence on record showing that the plaintiff was having ready money with him and there is no evidence showing that plaintiff had withdrawn the amount as indicated in the documents Ex.P11 to Ex.P22. Therefore, the assertion of the plaintiff and his witness that they were having Rs.8 lacs in cash and other amount does not seem truthful. The contention is without force. Simply, if the plaintiff has not shown that he has withdrawn the amount so indicated in Ex.P11 to Ex.P22, it does not mean that he was not having money with him. He might have obtained cash amount by way of loan from someone. Rather, the documentary evidence shows that the plaintiff had the capacity to pay the sale consideration. The contention of the counsel for appellant that plaintiff despite the offer given by the defendant in the reply did not get the sale deed executed shows his unwillingness, is again without force and of no value because it has come on record that the defendant had not fulfilled the terms and conditions of agreement by getting the plot demarcated and obtaining NOC. The respondent as RW1 admitted that he had sold the plot during the currency(sic.) pendency of the suit. So, this shows that the defendant was/is not willing to get the sale deed executed. If the plaintiff instead of asking for relief of specific performance had filed a suit for recovery again does not lead to conclude that he was not ready and willing to perform his part of the contract. Under the agreement, he had option to ask for relief of double the amount of specific performance. Per my discussion, the findings of the learned lower court are hereby affirmed.” 13. In this manner, to me, the Courts below have rightly negatived the claim of defendant No.3 in this relevant context. Therefore, the contrary arguments of the learned counsel for the appellant-defendant No.3 “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 14. No other meaningful arguments have been raised by the learned counsel for the appellant-defendant No.3, so as to assail the judgments and decrees R.S.A. No.1679 of 2010 6 of the Courts below. All the remaining contentions, pertaining to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and dealt with by the Courts below, in this relevant behalf. 15. Above all, the trial Court as well as the first Appellate Court have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the above indicated concurrent finding of facts. Such pure concurrent finding of facts based on the evidence, cannot possibly be interfered with by this Court, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-reasoned decision arrived at by the Courts below, in this context. 16. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since, no question of law, much less substantial, is involved in this regular second appeal, in view of the law laid down by the Hon'ble Apex Court in case Kashmir Singh Versus Harnam Singh and another, 2008(2) R.C.R.(Civil) 688: 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments and decrees of the Courts below, as contemplated under Section 100 CPC, in the obtaining circumstances of the case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 08, 2011 (MEHINDER SINGH SULLAR) seema JUDGE