R.S.A No. 1064 of 2006 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 1064 of 2006 Date of decision : November 18, 2008 Ajay Khanijau, ...... Appellant. through Mr.D.S.Patwalia, Advocate v. Buniyaad Holdings Pvt. Ltd. ...... Respondent through Mr.V.K.Jain, Sr.Advocate with Mr.D.P.S.Rana, Advocate CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the plaintiff/appellant for specific performance of a contract of sale in accordance with the agreement/receipt dated 19.2.1994 entered into between the parties in respect of Plot No.J- 1075, measuring 520 sq. yards situated in Palam Vihar, Gurgaon. As per the agreement/receipt, a bargain was struck at Rs.7.28 lacs, out of which the said document evidenced receipt of Rs.50,000/- as earnest money. As per the agreement, it was incumbent upon the purchaser to make the balance payment of Rs.6.78 lacs within 45 days and thereupon the plot would be transferred in favour of the appellant. Both the Courts below have found that the appellant was not R.S.A No. 1064 of 2006 ::2:: ready and willing to conclude the contract upto the last date viz 5.4.1994. It has been established on record that the respondent had written a letter dated 12.4.1994 cancelling the agreement and forfeiting the earnest money of the appellant on account of his default in concluding the transaction by 5.4.1994. Learned counsel for the appellant has made a twin submission. It is firstly contended that it has been pleaded in the plaint that it was a pre- condition that the respondent would get income tax clearance certificate and in the original written statement this fact was categorically admitted. However, subsequently an application was filed to amend the written statement to take a plea that in fact no income tax clearance was required and that plea of amendment was rejected right up to this Court. It is, thus, contended that the respondent would have to be held down to his admission that the income tax clearance certificate was required and that, thus, in the absence thereof it could not be held that the plaintiff/appellant was not ready or willing. The second argument, which has been put forward, is that the plaintiff had got two pay orders in the amount of Rs.5 lacs on 4.5.1994 and, thus, it could not be held that the plaintiff was not ready to make the balance payment. He has relied upon the following judgments of the Hon'ble Supreme Court :- i) Sukhbir Singh and others v. Brij Pal Singh and others, AIR 1996 SC 2510, wherein the Hon'ble Supreme Court held as follows :- “5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The R.S.A No. 1064 of 2006 ::3:: fact that they attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It would, therefore, be clear that the Courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.” ii) Smt Swarnam Ramachandran & Anr v. Aravacode Chakungal Jayapalan, JT 2004 (7) SC 53, wherein the Hon'ble Supreme Court has held as follows :- “8. In the present case, it was submitted on behalf of the appellants that time to pay Rs.75,000/- on or before 30.9.1981 was made the essence of the contract by notice dated 12.9.1981 as the respondent was a chronic defaulter. We do not find any merit in this argument. In his evidence, the respondent asserted that when he paid Rs.50,000/- on 31.3.1981, the appellants orally agreed to extend the time for payment of Rs.75,000/- from 18.4.1981 to 30.9.1981; that at that time there was no R.S.A No. 1064 of 2006 ::4:: agreement to make time the essence of the contract. This assertion has not been rebutted by the appellants. No evidence in rebuttal has been led by the appellants. Further, as rightly held by the courts below, the conduct of the respondent was not a gross conduct so as to justify giving of notice making time of the essence of the contract. That on the contrary, time was extended by the appellants in furtherance of clause (8) of the agreement up to 31.12.1981. In the circumstances, we are in agreement with the conclusion that time was not of the essence.” iii) Govind Prasad Chaturvedi v. Hari Dutt Shastri and another, AIR 1977 SC 1005, wherein the Hon'ble Supreme Court held as follows :- “...... The trial Court found that it was proved beyond a shadow of any doubt that the appellant was always ready and willing to perform his part of the contract and the respondents were not at all anxious to execute the sale deed in his favour and that the respondents were guilty of breach of contract. On issue No.3 it found that even though the time for getting the sale deed executed expired after 24th May, 1964 the appellant would not be dis-entitled to the relief of specific performance of the contract for sale on the ground of delay as the respondents themselves were responsible for it....” 9. A considerable volume of evidence has been let in R.S.A No. 1064 of 2006 ::5:: on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrar's office on 25th May, 1964. It is sufficient to state tha both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to comprehend as to how if both the parties were present at the Sub-Registrar's office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed he having paid Rs.4000/- as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event.” In my opinion, this appeal must fail. As rightly pointed out by learned counsel for the respondent, a bare perusal of the agreement-cum- receipt makes it clear that there could have been no stipulation regarding obtaining of income tax clearance by the respondent since all that was transferred was allotment rights with a clear stipulation that thereafter it would be the duty of the respondent to get the sale deed registered from M/S Ansal Properties and Industries Limited, who were the owner and, thus, even if it could be argued that the plea regarding requirement of income tax R.S.A No. 1064 of 2006 ::6:: clearance was admitted, yet the Court could not shut its eyes to the provisions of the contract on which the suit is based. As regards the second argument, learned counsel for the respondent has pointed out (and rightly so in my opinion) that even as per the stand of the appellant, he had not shown the availability of the total amount of Rs.6.78 lacs on 4.5.1994 since he had got prepared pay orders only of Rs.5 lacs. He, thus, argued that the judgments of the Hon'ble Supreme Court, noticed herein above, are not applicable to the facts of the present case. I, consequently, hold the proposed questions No.1 and 3 against the appellant and that questions No.2 and 4 do not arise in the present appeal. The appeal is, thus, dismissed with no order as to costs. ( AJAY TEWARI ) November 18, 2008. JUDGE `kk'