IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 92 of 1998 Reserved on March 17,2010 Date of Decision: 08.04.2010 Chander Sen …..Appellant Versus Mani Ram & others …. Respondents Coram The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting?1 For the Appellant : Mr.S.S. Mittal, Advocate, with Mr. Surindr Prakash Sharma, Advocate. For the Respondent : Mr.Sunil Mohan Geol, Advocate. V.K. Ahuja, Judge This is an appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 31.12.1997, passed by the learned District Judge, Kullu, vide which he decreed the suit of the Original respondent/plaintiff, Mani Ram, now represented by the legal representatives for return of Rs.1,00,000/-, received by the appellant as an earnest money. 2. Briefly stated the facts of the case are that the original respondent Mani Ram ( hereinafter referred to as ‘plaintiff’) Whether the reporters of the local papers may be allowed to see the Judgment? …2… filed a suit for specific performance of contract as against the appellant and others, who were impleaded as defendants No. 1 to 4, respectively. It was alleged by the defendant No.1 that he had entered into agreement with the plaintiff for sale of land, measuring 01-06-00 bigha, as detailed in the plaint and agreed to sell land out to the share of the plaintiff for a consideration of Rs.2,95,000/-. Out of this amount, a sum of Rs.1,00,000/- lac was paid by the plaintiff to defendant No.1 at the time of execution of agreement to sell dated 4.4.1991. The remaining amount was agreed to be paid at the time of registration of the sale deed which was agreed to be executed by 31.8.1991. It was alleged that the plaintiff gave intimation to defendant No.1 to get the sale deed executed who assured him that he would got the same registered. It was further alleged that the plaintiff was always willing to perform his part of the contract but defendant No. 1 failed to execute the sale deed inspite of various requests made by the plaintiff. Thus, it was alleged that the plaintiff is entitled to a sum of Rs. 78,000/-, on account of damages by way of interest on the earnest money of Rs.1,00,000/- alongwith interest. It was further alleged that defendant No.1 had further sold his share in the land to defendants No. 2, 3 & 4 vide different sale deeds which have been executed after the execution of agreement to sell in favour of the plaintiff and defendant No. 1 had no right to execute the sale deeds in …3… favour of defendants No. 2 to 4. Hence, suit for specific performance of contract filed by plaintiff. 3. Defendant admitted to have executed the agreement and stated that the agreement was executed on 5.4.1991. He did not deny that sale was to be completed by 31.8.1991 but pleaded that the plaintiff was not ready and willing to perform his part of the contract. He admitted that sale consideration fixed was Rs.2,95,000/- and submitted that since plaintiff had failed to get the sale deed executed, therefore, the earnest money stood forfeited. 4. On the pleadings of the parties, the following issues were framed by learned trial Court. (1) Whether the agreement arrived at between the parties is enforceable r not as alleged ? OPP. (2) If issue No. 1 is proved, in affirmative, whether the plaintiff is entitled to the possession of the suit land on payment of balance amount of consideration and execution of the sale deed? OPP. (3) Whether the plaintiff is entitled to any damage as claimed in the plaint? OPP (4) Whether the plaintiff is entitled to special costs? OPP. (5) Whether the present suit is within the period of limitation? OPP (6) Whether the suit has not been properly valued for the purposes of curt fee and jurisdiction? OPP. …4… (7) Whether the plaintiff has failed to perform his part of contract as agreed between the parties? OPP (7-A) Whether the defendants No. 2 to 4 are bonafide purchasers of suit land without notice and knowledge of agreement to sell in between the plaintiff and defendant No.1 and also made improvement on the suit land. If so, to what extent and its effect? OPD-2 to 4. (7-B) Whether the plaintiff by way of his act and conduct is estopped to file the present suit? OPD 2 to 4. 5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiff was entitled to return of the earnest money of Rs.1,00,000/- only in the alternative. 6. I have heard the learned counsel for the parties and have gone through the record. 7. The main submissions made by the learned counsel for the appellant were that the suit was not filed within three years. It was submitted that the date of the agreement, executed in between the parties was 4.4.1991 and the suit having been filed on 1.9.1994 was late by one day and as such, the suit was not within time. On the other hand, the learned counsel for the respondents submitted that the suit was filed well within the period of three years and, as such, the plea of limitation fails. …5… 8. A perusal of the record shows that issue No. 5 was framed by the learned trial Court in regard to limitation. The learned trial Court has observed that the cause of action had arisen to the plaintiff on 31.8.1991, the date mentioned in the agreement to sell by which date the registered sale deed was to be executed. Thus, the suit could have been field within three years from 31.8.1991 i.e. on or before 31.8.1994. It was concluded by the learned trial Court that on the basis of the receipt given alongwith the plaint which was filed before this Court shows that the receiving clerk had received the plaint on 31.8.1994 which clearly shows that the suit was field within a period of three years of the date of accrual of cause of action. A perusal of the record of the case shows that alongwith the plaint filed in this Court, there is a Annexure “A” under the Rules of Business of High Court of H.P. which shows that the receipt was given by clerk having received the plaint on 31.8.1994 and on the same receipt, there is a stamp of Reader to Registrar dated 1st September, 1994 to the effect that it was filed on that day, ‘Filed today’ i.e. 1.9.1994. There is no merit in submissions made by the appellant that the respondent should have examined the clerk who received the plaint on 31.8.1994. The presumption of correctness is attached to this Annexure “A” until or unless it is proved, otherwise. As per the facts, this receipt shows that the plaint was presented on 31.8.1994 and on the next …6… date, there are initials of Reader to Registrar ‘filed today’. A perusal of the plaint also shows that it was verified at Shimla on 30th August, 1994 and stamp on the plaint and other documents is of 1st September, 1994. But the fact remains that the plaint was presented on 31.8.1994. Moreover, I may observe that the cause of action had arisen after 31st August, 1994. It was the date for the execution of the sale and plaint could have been presented on 1.9.1994 also within a period of three years from the accrual of cause of action. Thus, the findings on issue No. 5 in this regard are liable to be affirmed which are accordingly affirmed. 7. The other submissions made by the learned counsel for the appellant were that the respondent had not issued a notice to the defendant within the period of three years. The defendant had failed to execute the sale deed on 31.8.1991. The plaintiff alleged that he had requested the plaintiff to execute the sale deed. It is a fact that no written notice was issued to the defendant in this regard. However, in case the sale deed was not executed by the date fixed, the plaintiff was at liberty to file the suit within a period of three years from the accrual of the cause of action and, accordingly, the suit was filed within a period of three years. There is statement of PW-1 Mani Ram, plaintiff that he had gone to the Registrar’s Office on 31.8.1991, waited for the plaintiff till evening, but he did not turn up and the defendant did not execute the …7… sale deed or turn up for its execution. His statement was relied upon by the learned trial Court and there is nothing on record to show that there are any infirmities in the findings recorded by the learned trial Court whereby relief of return of earnest money of Rs.1,00,000/- only has been granted alongwith costs which findings of the learned trial Court do not suffer from any infirmity calling for an interference by this Court. 8. I, accordingly, held that there is no merit in the present appeal filed by the appellant which is accordingly dismissed alongwith costs. Decree sheet be prepared accordingly. (V.K. Ahuja) Judge April 8, 2010 *BRB*