The High Court dismissed the second appeal in a suit for specific performance of an agreement to sell land. The Court rejected the appellant's claim that time was essence of the contract, finding that the parties had mutually extended the timeline for registration.
Appeal dismissed; judgment, decree, and orders of courts below are restored.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 546 of 2012-A Date of decision: 8.5.2013
Fatima …..Appellant.
Vs.
Imtiyaz Khan Respondent.
Coram
The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No
For the appellant : Mr.Pritam Singh Chandel,Advocate. For the Respondent : Mr.Sanjeev Kuthiala,Advocate.
Kuldip Singh, J(Oral)
This appeal is directed against the judgment, decree dated 30.5.2012 passed by learned Addl. District Judge, Solan in Civil Appeal No.5-NL/13 of 2011, affirming judgment, decree dated 30.10.2010 passed by learned Civil Judge (Junior Division), Court No.2, Nalagarh in Civil Suit No.81/1 of 09/2006.
2. The facts in brief are that respondent has filed a suit for specific performance of contract dated 8.8.2003 against appellant regarding land comprised in khasra No.236/3, situate in Up-Mohal Naya Nalagarh, more specifically described in the plaint for a sale consideration of 1,12,500/-, in alternative recovery of damages 4,00,000/-. The further case of the respondent is that an agreement was executed on 8.8.2003. The respondent had paid an
Whether the reporters of the local papers may be allowed to see the Judgment? yes
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amount of 95,000/- as earnest money at the time of execution of the agreement. The remaining amount of 17,500/- was to be paid on or before 15.12.2003 i.e. at the time of execution and registration of sale deed. On 15.12.2003, the parties with their mutual consent extended the date for execution and registration of sale deed upto 20.3.2004 and thereafter upto 20.9.2004. The respondent had paid `5,000/- on 15.5.2004. The respondent came to Nalagarh alongwith remaining sale consideration for registration of sale deed on 20.9.2004 but appellant did not turn up to execute the sale deed. The respondent was ready and willing to perform his part of contract but appellant failed to perform her part of contract and therefore, the suit was filed.
3. The suit was contested by the appellant by taking preliminary objections of maintainability, lack of cause of action, concealment of material facts, the suit is hit by Section 118 of H.P. Tenancy and Land Reforms Act, the time was essence of the contract and estoppel. On merits, the appellant admitted the execution of the agreement dated 8.8.2003 for sale consideration of 1,12,500/-. She also admitted that she received 95,000/- as earnest money. It has also been stated that the remaining sale consideration of `17,500/- was to be paid on or before 15.12.2003.
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The respondent took advantage of the illiteracy of the appellant and forged the endorsements which are not legal. The appellant was bound to execute the sale deed on or before 15.12.2003, failing which earnest money was to be forfeited and the same has been forfeited. It has been repeated that the time was the essence of contract. The appellant denied the remaining stand of the respondent.
framed:-
..OPD
were answered in negative and issue No.2 was held redundant and the suit was decreed by learned trial Court on 30.10.2010, as per operative part of the judgment. The first appeal filed by the appellant
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was dismissed by the learned lower Appellate Court on 30.5.2012, hence second appeal.
6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that time was essence of the contract and the appellant never agreed for extension of time for execution and registration of the sale deed upto 20.9.2004. He has submitted that the evidence on this point has not been properly considered by the two Courts below. The learned counsel for the respondent has submitted that the two Courts below have properly appreciated the evidence, extension of time was granted by mutual consent of the parties for execution and registration of the sale deed. Once the appellant agreed for extension of time upto 20.9.2004, then it cannot be said that time was the essence of the contract.
7. It is not in dispute that agreement dated 8.8.2003 was executed between the parties and appellant on that date had received 95,000/- as earnest money. The sale deed was to be executed on or before 15.12.2003 after payment of 17,500/- balance sale consideration. It is the case of the respondent that on 15.12.2003 parties had mutually agreed for extension of time of the execution of the sale deed upto 20.3.2004 and then 20.9.2004.
8. DW-1 Sulleman appeared as Special Power of Attorney Holder of appellant in the trial Court. He has stated that his mother had executed an agreement for sale of 188 square meters of land. He has stated that sale deed was to be executed on or before 15.12.2003. He has denied that execution and registration of the sale
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deed was extended upto 20.3.2004. He has stated that mark DA and mark DB are the thumb marks of his mother on Ex.PW-1/B. On 15.12.2003, his mother had visited the Court premises. He has stated that on 20.9.2004 his mother had not turned up for execution of the sale deed. Ex.PW-1/B is the agreement dated 8.8.2003. DW1 in his statement has admitted that on endorsements Ex.DA and Ex.DB his mother had put her thumb marks. He has not stated that these thumb marks on Ex.PW-1/A were obtained by fraud, misrepresentation.
9. It is the case of the respondent that the date of execution and registration of the sale deed was mutually extended. The perusal of first endorsement on Ex.PW-1/B which has been captioned amendment would show that the parties on 15.12.2003 extended the date of the agreement upto 20.3.2004. On 15.5.2004 similarly parties extended the date of agreement upto 20.9.2004. The suit was filed on 7.2.2006. In the second endorsement there is nothing that if sale deed is not executed on or before 20.9.2004 then the agreement will come to an end for this reason only. DW-1 has stated that his mother did not turn up for execution of the sale deed. The lapse of appellant for not executing the sale deed cannot be used by her in support of her plea that time was essence of the contract. In the facts and circumstances of the case, the combined reading of agreement Ex.PW-1/B with endorsements would show that time was not the essence of the contract.
10. The suit has been filed by the respondent for enforcement of the agreement. The two Courts below have recorded
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concurrent findings of fact. The view taken by the two Courts below emerges from the evidence on record, there is no perversity in the impugned judgment. The appellant has failed to make out a case that inadmissible evidence has been considered or essential evidence which goes to the root of the case has been ignored. No substantial question of law arises. No other point is urged. There is no merit in the appeal which is accordingly dismissed. The pending application, if any, also disposed of.
May 8,2013 (sks)
( Kuldip Singh ), Judge.
2 issues framed by the court
Whether the mutual extension of time for execution of the sale deed negated that time was essence of the contract?
Whether the lower courts erred in concluding that the appellant failed to perform her part of the contract to execute the sale deed.
Fatima
Imtiyaz Khan
Kuldip Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
