RSA No.1926 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1926 of 2008 Date of Decision:11.11.2008 Harbhajan Singh ....appellant Versus Sucha Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.R.S.Bajaj,Advocate for the appellant **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby decree of the trial Court for specific performance of the agreement dated 16.11.1998 in favour of the plaintiff has been modified by accepting the appeal of the defendant partly and suit of the plaintiff-appellant has been decreed for the recovery of Rs.45,000/- along with the interest. Briefly stated, the plaintiff filed suit for specific performance of agreement dated 16.11.1998 for the sale of suit property and in the alternative for the recovery of Rs.1,50,000/- as principal amount and Rs.1,50,000/- as damages and future interest @ 18% per annum against the defendant pleading that the defendant entered into an agreement dated 16.11.1998 for the sale of the land in dispute for a total consideration of Rs.1,50,000/- and received Rs.45,000/- in cash at the time of execution of the agreement. The balance amount was to be paid at the time of execution of the sale deed on or before 15.04.1999. The plaintiff was ready for performing his part of the contract and he waited for the RSA No.1926 of 2008 2 defendant in the office of Sub-Registrar, who did not turn up. He also got a notice issued to him. The defendant ultimately received the full amount of consideration and issued power of attorney in his favour on 31.05.1999. The possession was also handed over to him on that day. However, a few days before the filing of the suit the defendant told him that he has cancelled the power of attorney and refused to execute the sale deed and get the same registered in his favour. Hence this suit. The suit was contested by the defendant. Execution of the agreement to sell dated 16.11.1998 and power of attorney dated 31.05.1999 in favour of the plaintiff was admitted. However, other contentions made in the plaint were denied. It was further stated that in fact the defendant had taken a loan and the agreement in question was executed only as security for the loan so advanced and the same was to be returned at the time of repayment of the loan and a fraud has been committed with the defendant. Dismissal of the suit was prayed for. After going through the evidence produced by the parties and hearing the learned counsel on their behalf, the trial Court decreed the suit. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, defendant filed an appeal. While accepting the appeal partly, the Lower Appellate Court affirmed the findings of the trial Court to the effect that agreement to sell Ex.P-1 was duly executed by the defendant. However, findings of the trial Court on issue No.2 were reversed and it was held that the plaintiff is entitled to receive back his earnest money of Rs.45,000/- paid by him at the time of execution of the agreement and he is not entitled to the specific performance of the agreement. Not satisfied with the judgment and decree of the Lower Appellate Court, the plaintiff has filed the instant appeal challenging the RSA No.1926 of 2008 3 judgment and decree of the Lower Appellate Court . Learned counsel for the appellant has vehemently argued that even though appellant had pleaded and successfully proved that he was always ready and willing to perform his part of the agreement, the learned Lower Appellate Court has reversed the findings on issue No.2, erroneously taking a hypertechnical view of the whole matter and thus the judgment and decree of the Lower Appellate Court is liable to be set aside. I have heard learned counsel for the appellant. It is a matter of record that in para No.2 of the plaint, plaintiff had pleaded that he had been requesting the defendant to perform his part of the contract and appeared before the Sub-Registrar on 15.04.1999 and that he further told the defendant that he was ready with the amount of sale consideration and other expenses and that the defendant did not turn up on that date. While appearing in the witness box as PW1, he has stated that on the date fixed for the execution of the sale deed he had gone to the office of Sub- Registrar with the balance sale consideration and waited for the defendant who did not turn up. He also proved on record the application Ex.P-2 which was given by him before the Sub-Registrar for making his presence noted. However, from the above facts, it is clearly established that the plaintiff-appellant did not plead that he always remained ready and willing to perform his part of the contract. Even while appearing in the witness box he was only to substantiate his plea that he always remained ready and willing to perform his part of the contract. He has only stated that on the date fixed for the execution of the sale deed he had gone to the Office of Sub-Registrar with the balance sale consideration. However, his statement has not been corroborated by any of his witnesses. He nowhere stated that he always remained ready and willing to perform his part of the contract. The argument of the learned counsel for the appellant that in fact he had made the payment of total sale consideration and therefore he was not RSA No.1926 of 2008 4 required to aver and plead that his readiness and willingness from the date of execution itself till the date of the filing of the suit is without any force. When the defendant appeared as DW1, he denied the receipt of any such amount of Rs.1,05,000/-. He was not cross-examined on this aspect of the matter, meaning thereby that the plaintiff admitted that part of his statement to be correct. On the basis of the above evidence, the Lower Appellate Court recorded a finding of fact that the plaintiff failed to prove the payment of total sale consideration and therefore it cannot be held that nothing remained to be done on his part and as such he was not required to aver and prove his readiness and willingness from the date of the execution itself till the date of the filing of the suit. The Lower Appellate Court also found that in view of the compromise entered into between him and the defendant, plaintiff received a sum of Rs.58,000/- on 10.07.1999. Once, the plaintiff received that amount, how it can be said that he was ready and willing to get the sale deed executed in his favour up to the date of the filing of the suit which was filed on 19.07.1999. It is well settled that Section 16(C)of the Specific Relief Act, 1963 is categoric to the effect that a person seeking specific performance to aver and prove that he has performed or has always been ready and willing to perform his part of the agreement. It was also held by the Apex Court in N.P.Thirugnanam vs. Dr.R.Jagan Mohan Rao 1995(5)SCC 115 that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff was ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff, prior and subsequent to the filing of the suit along with other attending RSA No.1926 of 2008 5 circumstances. Thus, no fault can be found with the findings of the Lower Appellate Court. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 11.11.2008 neenu