Regular Second Appeal No. 1314 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1314 of 2006 Date of decision : July 15, 2010 Lalit Mohan Bhalla ....Appellant versus Prem Chand ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sanjiv Gupta, Advocate, for the appellant Mr. Rajesh Sethi, Advocate, for the respondent L.N. Mittal, J. (Oral) By this common judgment, I am disposing of two appeals i.e. RSA No. 1314 of 2006 and RSA No. 1315 of 2006, both titled Lalit Mohan Bhalla versus Prem Chand. The aforesaid two appeals have arisen out of two suits. One suit was filed by the appellant against respondent Prem Chand whereas the other suit was filed by Prem Chand respondent against Lalit Mohan Bhalla appellant. Both the said suits were disposed of by learned Civil Judge (Senior Division), Sirsa by common judgment dated 18.12.2000 thereby dismissing suit filed by the appellant and decreeing suit filed by the respondent. The appellant preferred two first appeals against said judgment Regular Second Appeal No. 1314 of 2006 -2- and decrees passed in two suits. Both the said first appeals have also been disposed of by learned District Judge, Sirsa by common judgment dated 12.1.2006 thereby dismissing both the appeals. Feeling aggrieved, the instant two second appeals have been preferred. There is no dispute that respondent agreed to sell the suit house to the appellant vide agreement dated 22.5.1989 for Rs 1,64,000/-. Appellant paid Rs 90,000/- out of the sale price to the respondent at the time of agreement. Possession of the suit house was delivered to the appellant at the time of agreement. Respondent had taken loan from Punjab National Bank where the respondent was also employed. An amount of Rs 70,000/- approximately was outstanding from the defendant to the bank. It was stipulated in the agreement that sale deed would be executed on 25.9.1989 and prior to it, the defendant would clear the bank loan and obtain a clearance certificate from the bank. The case of the appellant is that he always remained ready and willing to perform his part of the contract but the defendant committed breach thereof. He did not repay the bank loan as stipulated. The appellant through telegram dated 17.9.1992 and notice dated 23.9.1992 asked respondent to execute the sale deed as per agreement but the respondent failed to do so. Accordingly, the appellant filed suit for specific performance of the agreement to sell. On the other hand, case of the respondent is that the respondent along with Birbal Dass, Officer of the bank went to the office of Sub Registrar, Sirsa on 25.9.1989, the date stipulated in the agreement for execution of sale deed, for doing the needful. The balance loan amount of Regular Second Appeal No. 1314 of 2006 -3- the bank was to be paid out of the balance sale consideration of Rs 74,000/- and the bank officer was ready to receive the same at the time of registration of the sale deed and 'no objection certificate' dated 23.9.1989 had also been issued by the bank to this effect. However, the appellant did not turn up to get the sale deed executed. The respondent even served notice dated 14.5.1990 on the appellant to hand over vacant possession of the suit house to the respondent because the appellant had committed breach of agreement and therefore, the earnest money paid by the appellant stood forfeited as per terms and conditions of the agreement. Accordingly, respondent filed suit seeking declaration that the appellant had failed to perform his part of the contract and has forfeited earnest money. Respondent sought possession of the suit house by mandatory injunction. Learned trial court dismissed suit filed by the appellant and decreed the suit filed by the respondent. Appeals preferred by the appellant have been dismissed by the lower appellate court. Feeling aggrieved, the appellant has filed the instant second appeals. I have heard learned counsel for the parties and perused the case file. Admittedly, the appellant did not go to the office of Sub Registrar on 25.9.1989, the date stipulated in the agreement to sell for execution of the sale deed. On the other hand, respondent along with bank officer and 'no objection certificate' of the bank went to the office of Sub Registrar to execute the sale deed in terms of the agreement. It is, thus, apparent that the appellant himself committed breach of agreement. The matter does not rest here. The respondent even served notice dated Regular Second Appeal No. 1314 of 2006 -4- 14.5.1990 on the appellant but the appellant did not respond to the said notice. On the other hand, the appellant filed suit for specific performance of the agreement to sell on 25.9.1992 i.e. last day of limitation and more than two years and four months after service of notice dated 14.5.1990. There is no explanation for this conduct of the appellant. Consequently, the appellant is not entitled to specific performance of the agreement which is equitable relief. The entire conduct of the appellant dis-entitles him to the said relief. The appellant was in possession of the suit house without paying balance sale consideration. The appellant was enjoying the suit house as well as was utilizing the balance sale consideration whereas respondent was deprived of the balance sale consideration as well as possession of the house. The respondent had to bear interest on the outstanding loan amount payable by him to the bank. If the appellant had paid the balance sale consideration as per agreement, the respondent would have been saved of the said interest liability. Learned counsel for the appellant emphatically contended that bank loan was cleared in the year 1998 and therefore, sale deed could not be executed in the year 1989 as stipulated in the agreement. The contention is misconceived and devoid of merit. As noticed herein above, the bank had issued 'no objection certificate' dated 23.9.1989, Ex. DW5/3. In view of said certificate, respondent was entitled to execute the sale deed of the suit house in favour of the appellant in terms of the agreement and the bank loan would have been cleared out of the balance sale price payable by the appellant at the time of registration of the sale deed. Consequently, it cannot be said that there was any default on the part of the respondent. On Regular Second Appeal No. 1314 of 2006 -5- the other hand, the appellant did not even go to the office of Sub Registrar on 25.9.1989, the date stipulated for execution of sale deed, to get the sale deed executed in terms of the agreement. Contention of appellant's counsel that the appellant had no intimation about 'no objection certificate' of the bank and therefore, the appellant did not go to the office of Sub Registrar on 25.9.1989 has no merit because it was stipulated in the agreement itself that sale deed would be executed on 25.9.1989 and the respondent had done the needful in the meanwhile by obtaining 'no objection certificate' dated 23.9.1989 from the bank. Moreover, even after 25.9.1989 till 17.9.1992 when the appellant allegedly sent telegram to the respondent, the appellant remained silent for almost three years. It was in spite of the fact that the respondent had served notice on the appellant as early as on 14.5.1990, inter alia, mentioning therein that he had gone to the office of Sub Registrar on 25.9.1989 along with bank officer and requisite certificate of the bank to execute sale deed in terms of the agreement but the appellant himself did not turn up. Even thereafter appellant remained silent for more than two years four months. It is also significant to notice that loan was actually cleared in the year 1998 but the appellant filed suit for specific performance of the agreement on 25.9.1992. Consequently, excuse of the appellant that bank loan had not been cleared, does not carry any weight because even at the time of filing of suit, the loan amount had not been cleared. However, the respondent had done the needful to execute the sale deed by obtaining certificate dated 23.9.1989 from the bank entitling the respondent to execute the sale deed in favour of the appellant in terms of the agreement. Regular Second Appeal No. 1314 of 2006 -6- Learned counsel for the appellant also referred to section 53-A of the Transfer of Property Act, 1982 (in short, the Act). However, when appellant himself has committed breach of the agreement and the respondent was always ready and willing to perform his part of the agreement, the appellant has no right to retain possession of the suit property in terms of section 53-A of the Act. Section 53-A of the Act also requires the transferee (appellant in the instant case) to perform his part of the contract. In the instant case, the appellant committed breach of the contract and therefore, he is not entitled to the benefit of section 53-A of the Act. Reference by counsel for the appellant was also made to section 55(1)(g) of the Act requiring transferor (respondent in this case) to pay all public charges etc. qua the suit property. However, in the instant case, as already discussed herein before, respondent had done the needful by obtaining 'no objection certificate' from the bank and nothing else was due qua suit property to be paid by the respondent. There is concurrent finding by both the courts below that the appellant committed breach of contract and the respondent was always willing and ready to perform his part of the contract. The said finding is based on proper appreciation of evidence and does not suffer from any illegality or perversity. No question of law much less substantial question of law arises for determination in these appeals. However to balance the equities, it would be appropriate if the respondent is directed to refund the amount of Rs 90,000/- to the appellant. The said amount had been paid by the appellant to the respondent at the Regular Second Appeal No. 1314 of 2006 -7- time of execution of the agreement to sell. However, no interest on the said amount is payable to the appellant because appellant has been enjoying the possession of the suit house since the date of agreement i.e. for more than two decades even without paying balance sale price. For the reasons recorded herein above, both the appeals are meritless and are dismissed except to the extent that respondent Prem Chand is directed to refund the amount of Rs 90,000/- to the appellant by deposit in the trial court. After deposit of the said amount, respondent shall be entitled to execute the decree for possession of the suit house by mandatory injunction. The appellant shall be entitled to withdraw the aforesaid amount of Rs 90,000/- only after vacant possession of the suit house is delivered to the respondent, either voluntarily by the appellant or in execution of the decree. ( L.N. Mittal ) July 15, 2010 Judge 'dalbir'