Ravi Setia vs Madan Lal

3. Shri Amit Anand Tiwari, learned counsel for the appellant­ plaintiff, submitted that the High Court in a second appeal ought not to have interfered with a concurrent finding of fact that the plaintiff was ready and willing to perform his part of the obligations under the agreement. Defendant nos. 1 and 2 had failed to appear before the Sub­Registrar for execution on 30.04.1990. The plaintiff never received the purported notices from defendant nos.1 and 2 dated 28.05.1990 and 12.06.1990 2 requiring the plaintiff to execute the sale deed on 25.06.1990. The subsequent sale to defendants 4 to 7 has been held to be not bonafide, but a sham transaction. The plaintiff had been granted extension of time for deposit of the balance consideration by the Trial Court till the disposal of the first appeal. The balance consideration was deposited after decision in the First Appeal. In the alternative, a submission was made that if the appeal is not to be allowed, defendants 1 and 2 may be directed to pay the sum of Rs.1,00,000/­ to the plaintiff comprising the earnest money plus damages as claimed in the suit.

4. Shri Ranjit Thomas, learned senior counsel appearing for the defendants­respondents, submitted that the plaintiff had failed to prove readiness and willingness to perform its obligations under the agreement. The defendants were not put on notice for appearance before the Sub­Registrar on 30.04.1990. The notices dated 28.05.1990 and 12.06.1990 were sent by defendants 1 and 2 through registered post at the correct residential address of the plaintiff. The plaintiff did not respond to the same because he did not have the capacity to perform his 3 obligations under the agreement and failed to deposit the balance consideration within the two months’ time granted by the Trial Court on 01.06.1994. The application for extension of time made after expiry of the time prescribed is sufficient evidence for the incapacity of the plaintiff to perform his obligations demonstrating readiness and willingness. The High Court in second appeal was empowered to set aside concurrent findings of facts if they were perverse.

6. Defendant nos. 1 and 2 by registered notices dated 28.05.1990 and 12.06.1990 required the plaintiff to get the sale deed executed by 25.06.1990. The plaintiff does not dispute that the communication was properly addressed and sent through registered acknowledgement due. If it was returned back with the endorsement that the plaintiff was not available at his home, defendants 1 and 2 were not required to do anything further. If 5 the plaintiff was of the opinion that the endorsement was wrong, it was for him to have contended so and led necessary evidence in this regard. The Trial Court rightly did not disbelieve defendants 1 and 2, but without returning any finding in that regard preferred to rely on the unsubstantiated claim of the plaintiff of having been present before the Sub­Registrar on 30.04.1990. The said finding is also held to be unsustainable.

8. The Trial Court decreed the suit on 01.06.1994 and granted time to the plaintiff for deposit of the balance consideration 6 within two months from 01.06.1994, i.e. by 31.07.1994. The plaintiff offered no explanation whatsoever for the failure to comply the direction. After expiry of the time granted for deposit, on 02.08.1994 the plaintiff filed an application before the Trial Court that in view of the pendency of the First Appeal preferred by defendants, the time for deposit may be extended as otherwise the amount would lie in the bank without interest. On 02.08.1994 itself, the time for deposit was extended till disposal of the First Appeal. The defendants’ challenge to the ex­parte order was unsuccessful on technical grounds.

16. In view of the discussion, we arrive at the conclusion that the plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. We are of the considered opinion that there is no merit in the present appeal. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that the respondent is not entitled to retain the earnest money and it shall be refunded to the appellant without interest within a period of one month failing which it shall carry interest at the rate of 7 per cent.

17. The appeal is dismissed. There shall be no order as to costs.