Case: Narinderjit Singh Vs. North Star Estate Promoters Ltd

3. The respondent filed suit for possession by way of specific performance of the agreement for sale impleading the appellant and his father as the defendants. The case set up by the respondent was that at the time of execution of agreement, its authorised representative had paid Rs.1,00,000; that on 22.11.1996, Rs.9,00,000 were offered to thefather but he avoided to accept the amount despite telephonic message and phonogram sent on 23.11.1996 and personal visit to his office and residence. It was further pleaded that even though the respondent was always ready and willing and is still ready and willing to perform its part of the agreement, the appellant intentionally committed breach of the terms and conditions thereof and failed to perform his obligation by not extending cooperation in obtaining colonization licence from Punjab Urban Development Authority and ITC Certificate under Sectionof the Income Tax Act.4. In the joint written statement filed by the appellant and his father, the locus standi of the respondent to file the suit was questioned on the premise that it had been incorporated on 1.11.1996, i.e. after execution of the agreement. On merits, it was pleaded that thefather, who was about 88 years old and was sick had not executed the agreement and the same was a fictitious document prepared by the respondent in collusion with Col. Gurcharan Singh and Vijay Bhardwaj. The appellant and his father denied the receipt of the earnest money and the offer allegedly made by therepresentative to pay Rs.9 lacs.On the pleadings of the parties, the trial Court framed the followingWhether plaintiff is entitled for decree for possession by way of specific performance of agreement to sell dated 22.10.1996? OPP.2. Whether plaintiffs are not entitled to relief claimed for? OPD.3.After considering the evidence produced by the parties, the trial Court recorded the following findings:(i) the respondent has succeeded in proving execution of the Agreement for Sale.(ii) the appellant and his father could not prove that the Agreement was a forged and fabricated document.(iii) the respondent succeeded in proving that its representative had paid a sum of Rs.1,00,000 as earnest money and offered to pay Rs.9,00,000 which defendant No.2 did not accept.(iv) that the plaintiff was ready and willing to perform its part of the agreement.However, the trial Court declined the relief of specific performance by observing that the price of the land had considerably increased and it would be unfair to compel the appellant to execute the sale deed at the rate agreed to by the parties. For arriving at this conclusion, the trial Court relied upon the judgments of this Court in Sargunam (Dead) by L.R. v. Chidambaram (2005) 1 SCC 162  and Janardhanam Prasad v. Ramdas (2007) 15 SCC 174  and of the Division Bench of the Punjab and Haryana High Court in Mohan Singh v. Kulwinder Singh 2006 (2) P.L.J. 748 and of the Allahabad High Court in Ramawati Devi v. Idris Ahmad 2008 (2) Civil Court Cases 332. The trial Court finally held that the respondent is entitled to refund of the earnest money with interest at the rate of 12% per annum.6. The respondent challenged the judgment and decree of the trial Court by filing an appeal. The appellant and his father did not file appeal or cross objection to challenge the findings recorded by the trial Court on the issues of execution of the agreement and readiness and willingness on thepart to perform its part of the agreement.7. The lower appellate Court independently analysed the pleadings and evidence of the parties and agreed with the trial Court that the respondent had succeeded in proving execution of the agreement and its readiness and willingness to pay the balance amount and perform its part of the obligation. The lower appellate Court further held that even though therepresentative had offered to pay Rs.9,00,000, defendant No.2 avoided to accept the same and deliver possession of the suit property as per clause (5) of the agreement for sale. The lower appellate Court disagreed with the trial Court that the respondent is not entitled to decree of specific performance because cost of the suit property had increased and observed that there was no justification to relieve the appellant of his obligation to execute the sale deed in terms of the agreement.8. The second appeal filed by the appellant was dismissed by the learned Single Judge of the Punjab and Haryana High Court who concurred with the lower appellate Court that the trial Court was not justified in invoking the provisions of Section 20 (2) (c) of the Specific Relief Act, 1963 (for short, ‘thefor the purpose of declining substantive relief to the respondent. The learned Single Judge relied upon the judgments of this Court in K. Narendra v. Riviera Apartments (P) Ltd. (1999) 5 SCC 77 , Sargunam (Dead) by LRs. v. Chidambaram (supra) 1 SCC 162 and Gobind Ram v. Gian Chand 2000 (7) SCC 548, and held that inadequacy of consideration or the fact that the contract is onerous to the defendant is not sufficient to deny the relief of specific performance.

Reasoning:
A reading of the agreement executed by thefather in favour of the respondent shows that he had agreed to sell 51 Bighas 9 Biswas land situated in village Dhakauli, Tehsil Rajpura, District Patiala at the rate of Rs.14,00,000 per Killa, i.e. 4 Bighas. Clauses 1, 2, 3, 4, 5 and 7 of thefar as readiness and willingness on the part of the appellant/plaintiff to perform its contract is concerned, the learned trial Court has recorded findings in favour of the appellant/plaintiff and the said findings are based on proper appreciation of evidence. The evidence produced by the appellant/plaintiff shows that the appellant/ plaintiff had got issued a demand draft of Rs.9,00,000/on 23.11.1996 for payment of the said amount to the defendants/respondents but they did not receive the said amount. The appellant/ plaintiff had sent message and also phonogram Ex.PW3/1 to the defendants/respondents on 23.11.1996 vide receipt ex.PW3/H. Even a notice Ex.PW3/D was sent to the defendants/respondents through courier vide receipt Ex.PW3/C and even a legal notice had been sent to the defendants/respondents by the appellant/plaintiff through its counsel. Further the statement of M.K.Jain Director of the appellant/plaintiff in this regard finds corroboration from the testimony of Vijay Bhardwaj. On the other hand, the defendants/respondents have denied the agreement in question and it is not their plea that appellant/plaintiff was not ready and willing to perform its contract.In our view, the concurrent findings recorded by the trial Court and the lower appellate Court on the issues of execution of the agreement by thefather and thereadiness and willingness to perform its part of the agreement were based on correct evaluation of the pleadings and evidence of the parties and the learned Single Judge of the High Court did not commit any error by refusing to upset those findings. The argument of the learned senior counsel for the appellant that in the absence of specific pleading about continued readiness and willingness of the respondent to perform its part of the agreement and availability of funds necessary for payment of the sale consideration, the High Court should have set aside the concurrent finding recorded by the Courts below sounds attractive but on a careful scrutiny of the record we do not find any valid ground to entertain the same.It is significant to note that the appellant and his father had set up the case of total denial. They repeatedly pleaded that the agreement for sale was a fictitious document and the respondent had fabricated the same in connivance with Col. Harjit Singh and Vijay Bhardwaj. However, no evidence was adduced by the appellant to substantiate his assertion. That apart, he did not challenge the finding recorded by the trial Court on the issue of readiness and willingness of the respondent to perform its part of the agreement. Therefore, we do not find any valid ground much less justification for exercise of power by this Court under Article 136 of the Constitution of India to interfere with the judgment of the lower appellate Court which was approved by the High Court.In the present case, the appellant had neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. Rather, the important plea taken by the appellant was that the agreement was fictitious and fabricated and his father had neither executed the same nor received the earnest money and, as mentioned above, all the Courts have found this plea to be wholly untenable.