Dismissed

Poonam Sharma & Another v. Balbir Kaur

Punjab & Haryana HC13 Mar 2012RSA/1199/2012

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal by the buyers against the specific performance decree granted in their favor under the Specific Relief Act. The Court relied on Supreme Court precedents to hold that attendance at the Sub-Registrar's office suffices to prove readiness and willingness, without strict proof of immediate cash availability.

What did the court decide?

The second appeal filed by the defendants was dismissed; the decree for specific performance in favor of the plaintiff was upheld.

Poonam Sharma & Another Vs Balbir Kaur — Specific Performance | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No. 1199 of 2012 (O&M) Date of Decision: 13.3.2012.

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Smt. Poonam Sharma & another

--Appellants

Versus

Smt. Balbir Kaur

--Respondent

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.

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Present:Mr. Rajender Sharma, Advocate for the appellants.

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TEJINDER SINGH DHINDSA.J

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The defendants-appellants are in second appeal before this

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Court.

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Plaintiff Balbir Kaur filed a suit for possession by way of specific performance of the agreement to sell dated 28.1.2005 stated to have been executed by the defendants in her favour in respect of land measuring 16 marlas situated at Village Jheeta Kalan, Tehsil & District Amritsar. The relief for permanent injunction was also sought for restraining the defendants from alienating/selling or mortgaging the suit property in favour of anybody else. It was pleaded that the agreement to sell dated 28.1.2005 was entered into between the parties as regards the suit property @ Rs.985/per sq. yard and earnest money of Rs.1 lac had been paid by the plaintiff to the defendants. The date for execution of the sale deed in respect to the suit property was fixed as on or before 10.8.2005. It was pleaded that on 10.8.2005 the plaintiff had remained present in the office of Sub Registrar, Amritsar along with the balance sale consideration as also other amount for various expenses but the defendants did not come present. The plaintiff, accordingly had got her presence marked. The plaintiff had, thereafter, got

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RSA No. 1199 of 2012 (O&M)

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issued a legal notice dated 14.1.2006 calling upon the defendants to execute the sale deed in the office of Sub Registrar, Amritsar on 30.1.2006 and the plaintiff had again been present in the said office on 30.1.2006 along with the balance sale consideration and other expenses. She had got her presence marked even on 30.1.2006 but the defendants did not turn up. Even though, the plaintiff had been ready and willing to perform her part of the contract but upon refusal on the part of the defendants the present suit had been instituted on 1.2.2006. The defendants contested the suit taking a stand that the plaintiff herself had failed to perform her part of the contract by not getting the sale deed executed within the stipulated time period. Defendants stated that on the stipulated date i.e. 10.8.2005 they had remained present throughout the day in the office of Sub Registrar, Amritsar so as to receive the balance sale consideration and to get the sale deed executed in favour of the plaintiff. The defendants stated that they had got their presence marked in the office of Sub Registrar, Amritsar by way of moving the application supported by an affidavit but it was the plaintiff, who was not ready and willing to perform her part of the contract dated 28.1.2005. It was stated that the notice dated 14.1.2006 was received by the defendants and was duly replied on 30.1.2006 and as there was no legal and valid contract subsisting between the parties, as such, a prayer for dismissal of the suit was made.

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Upon the pleadings of the parties, the following issues were framed by the Trial Court:-

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“1. Whether vide agreement to sell dated 28.1.2005 defendants agreed to sell the suit land and received earnest money to the tune of Rs.1,00,000/- from the plaintiff?OPP.

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Whether the plaintiff is ready and willing to perform his part of the contract?OPP

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RSA No. 1199 of 2012 (O&M)

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-3-

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Whether the plaintiff is entitled to injunction as prayed for?OPP.

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Whether the plaintiff has no locus standi to file the present suit?OPD.

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Whether the plaintiff has concealed the material facts from the court?OPD.

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Whether the suit is bad for non joinder and misjoinder of necessary parties?OPD.

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Whether the plaintiff is estopped by her act and conduct from filing the suit?OPD

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Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD.

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Relief.”

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Having heard respective counsel for the parties and scanned the evidence led on record, the Trial Court decreed the suit of the plaintiff for possession of the suit property measuring 16 marlas by way of specific performance of agreement to sell dated 28.1.2005 upon payment of balance sale consideration. The defendants-appellants filed an appeal under Section 96 of Code of Civil Procedure and vide impugned judgement dated 21.11.2011, the First Appellate Court has dismissed the appeal and upheld the judgement and decree passed by the Trial Court. Resultantly, the defendants-appellants are in second appeal before this Court.

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I have heard Mr. Rajender Sharma, learned counsel appearing for the appellants at length.

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Learned counsel has argued that the findings of the courts below to hold the plaintiff-respondent to be ready and willing to perform her part of the contract are wholly perverse. It is contended that no evidence had been adduced to establish that the balance sale consideration which was required to be paid to the defendants-appellants was available

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RSA No. 1199 of 2012 (O&M) -4-

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with the plaintiff-respondent on the stipulated date. Learned counsel would, accordingly, contend that in view of Section 16 sub clause (c) of the Specific Relief Act, 1963, it was incumbent for the plaintiff-respondent to establish that she had all through been ready and willing to perform her part of the contract and also establish the same. Learned counsel has further argued that the courts below have not taken into account the vital fact that the defendants-appellants have themselves been ready and willing to perform their part of the contract in as much as they have proved their presence before the competent authority on the stipulated date and accordingly, the courts below had erred in granting the discretionary relief of specific performance in relation to the agreement to sell date 28.1.2005.

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I have given my thoughtful consideration to the submissions advanced by learned counsel for the appellants and perused the case file.

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It may be noticed at the very outset that there is no dispute inter se the parties as regards the execution of the agreement to sell dated 28.1.2005 as also the payment of earnest money to the extent of Rs.1 lac by the plaintiff-respondent to the defendants-appellants. The entire controversy in the facts of the present case hinges on the readiness and willingness of the plaintiff-respondent to perform her part of the contract. The facts that have been duly proved on record and in respect of which concurrent findings have been recorded by both the courts below are to the effect that on the stipulated date i.e. 10.8.2005, the plaintiff-respondent had been present in the office of Sub Registrar, Amritsar. Ex.P-2 is the application dated 10.8.2005 moved by the plaintiff-respondent Balbir Kaur for marking her presence. Even the legal notice dated 14.1.2006 calling upon the defendants-appellants to appear in the office of Sub Registrar on

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RSA No. 1199 of 2012 (O&M) -5-

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30.1.2006 for the execution of the sale deed and to receive the balance sale consideration, has been duly proved on record. The defendants-appellants have even admitted the receipt of such notice.

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The readiness and willingness on the part of the buyer has to be seen as a whole. The entire emphasis of the arguments raised by learned counsel appearing for the appellants is to the effect that the plaintiffrespondent had failed to prove her capability to pay the amount on the stipulated date. It has been held by the Hon'ble Apex Court that it would not be a condition precedent for the grant of relief of specific performance to demonstrate that the buyers would always be in possession of ready cash with them. The fact that a buyer has attended the office of the competent authority to have the sale deed executed on the stipulated date has been held to be a positive act towards proving that such buyer was in possession of the necessary funds to pass on as consideration for the execution of the sale deed. In the case of Sukhbir Singh and others Vs. Brij Pal Singh and others reported as 1996 AIR (SC) 2510. The Hon'ble Supreme Court had observed in the following terms:-

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“5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The 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

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RSA No. 1199 of 2012 (O&M) -6- exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.”

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Of utmost relevance would be observations of the Hon'ble Supreme Court in the matter of Azhar Sultana Vs. B. Rajamani & Ors.

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r eported as 2009(2) RCR (Civil) 123, wherein it has been held in the following terms:-

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“19. It is also a well settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract. (See Ram Awardh (Dead) by Lrs. & Ors. v. Achhaibar Dubey & Anr. 2000 (2) RCR (Civil) 2: (2000) 2 SCC 428 para 6).

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20. We are, however, in agreement with Mr. Lalit that for the aforementioned purpose it was not necessary that the entire amount of consideration should be kept ready and the plaintiff must file proof in respect thereof. It may also be correct to contend that only because the plaintiff who is a Muslim lady, did not examine herself and got examined on her behalf, her husband, the same by itself would lead to a conclusion that she was not ready and willing to perform her part of contract.”

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Undoubtedly, Section 16 of the Specific Relief Act, 1963 would postulate a continuous readiness and willingness on the part of the plaintiff and it would be construed as a condition precedent for obtaining a relief for the grant of specific performance of a contract. However, readiness and willingness on the part of a vendee has to be adjudged from the entire backdrop of events. The courts would also keep in mind while exercising the discretionary jurisdiction for grant of relief of specific performance to take into consideration the fact whether the suit had been filed within a reasonable time.

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RSA No. 1199 of 2012 (O&M)

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In facts in hand, wherein the agreement to sell and payment of earnest money stands admitted and wherein the vendee i.e. the plaintiffrespondent has duly proved her presence in the office of the Sub Registrar on the stipulated date as also coupled with the fact that she got a legal notice served soon thereafter calling upon the defendants-appellants to perform their part of the contract and having instituted present suit immediately thereafter would clearly demonstrate the readiness and willingness on the part of the plaintiff-respondent to perform her part of the contract in relation to the agreement to sell dated 28.1.2005. I am unable to accept the argument raised by learned counsel that it was necessary for the plaintiffrespondent to have furnished proof with regard to the balance sale consideration amount in the light of the observations made by Hon'ble the Supreme Court as referred to herein above.

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The exercise of discretionary jurisdiction by the courts below in terms of granting the relief of specific performance of the contract in favour of the plaintiff-respondent is based on due appreciation of evidence and upon cogent and valid reasoning. I do not find any perversity in the same.

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For the reasons recorded above, the present second appeal must fail as it does not raise any question of law much less a substantial question of law.

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Appeal dismissed.

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(TEJINDER SINGH DHINDSA) JUDGE

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13.3.2012. lucky

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Whether to be reported? Yes.

Poonam Sharma & Another v. Balbir Kaur

Case brief

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Poonam Sharma & Another v. Balbir Kaur

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