Case: MOHINDER KAUR Vs. SANT PAUL SINGH

2. An agreement for sale with regard to House no.3343/3, situated in Rupnagar Municipality was executed between the parties on 16.03.1988 for an agreed consideration of Rs.1,50,000/-. At the time of execution, a sum of Rs.15,000/¬ was paid. As the suit property stood mortgaged to the education department, a further agreement dated 20.06.1988 was executed between the parties, that the sale deed would be executed within 15 days of the defendant obtaining release of the property from mortgage, giving due intimation to the plaintiff. A further sum of Rs.53,000/¬ and cash of Rs.2,000/- was paid to the defendant. The appellant after redemption of the mortgage, intimated the respondent on 27.07.1989 in accordance with the agreement, requiring payment of balance consideration and execution of the sale deed. The respondent disputed the redemption requiring proof of the same. The appellant, after due notice cancelled the agreement for sale on 01.09.1989 and forfeited the earnest money. The plaintiff then filed the instant suit seeking specific performance of the agreement by the defendant. The suit was decreed and the appeal preferred by the defendant was also dismissed. The second appeal of the defendant having also been dismissed, the present appeal has been lodged before this Court.

Reasoning:
5. We have considered the submissions on behalf of the parties. It is an undisputed fact that the suit property stood redeemed from mortgage on 04.07.1989. The appellant sent due intimation by registered post to the respondent on 27.07.1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale deed. The respondent by reply dated 02.08.1989 insisted on the no-dues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 02.11.1989 to PW¬1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27.07.1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if PW-1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement onthe power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption againstWe are of the considered opinion that merely because the respondent may not have been satisfied by the intimation given by the appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW¬1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief. The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be unsustainable.