In a second appeal, the court dismissed the appellant's challenge to a decree for specific performance. The court held that the plaintiff proved readiness and willingness, the third parties were not bona fide purchasers, and the suit was filed within the limitation period.
The appeal was dismissed upholding the decree for specific performance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 1238 of 2010(O&M) Date of Decision: 12.1.2012.
Balvir Singh
--Appellant
Versus
Vijay Kumar & others
--Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. Naresh Kaushal, Advocate for the appellant.
TEJINDER SINGH DHINDSA.J
The defendant-appellant is in second appeal before this Court.
Briefly stated, Vijay Kumar, plaintiff filed a suit for specific performance of the agreement to sell dated 31.8.2001 against Balbir Singh, defendant no.1 (appellant herein) and defendants no.2 and 3 for possession of the suit land upon setting aside the alleged sale deeds dated 17.6.2004 and 23.6.2004 executed by defendant no.1 i.e. Balbir Singh in favour of defendants no.2 and 3. In the alternative, prayer for recovery of Rs.4,80,000/- was also made. The plaintiff had pleaded that the defendant no.1 had agreed to sell 4 kanals 13 marlas of land situated in village Mehndipur for a total sale consideration amount of Rs.3,40,000/- and had entered into an agreement to sell dated 31.8.2001. Earnest money of Rs.2,40,000/- was paid by the plaintiff and 31.1.2003 was fixed as the date for execution of the sale deed upon receiving the remaining sale price i.e. Rs.1,00,000/-. Defendant no.1 had agreed to get the suit land cleared of all incumbrances. Prior to the execution of the agreement to sell dated 31.1.2001, defendant no.1 had mortgaged 2 kanals 16 marlas of land with the Punjab Agricultural Development Bank, Balachaur, which he was liable
RSA No. 1238 of 2010(O&M) -2-
to re-deem prior to 31.1.2003. Plaintiff pleaded that upon obtaining the copy of jamabandi on 3.1.2003, he became aware that instead of getting the land re-deemed from the bank, defendant no.1 had further mortgaged 2 kanals and 16 marlas of land with the aforementioned bank. Accordingly, plaintiff served upon defendant no.1 a legal notice dated 6.1.2003 calling upon him to get the suit land re-deemed prior to 31.1.2003 i.e. the last date for execution of sale deed as stipulated in the agreement to sell dated 31.7.2001. Defendant no.1, however, replied to the legal notice on 28.1.2003 denying the very execution of the agreement. Plaintiff pleaded that he was always ready and willing to perform his part of the contract and had even got his presence recorded in the office of Sub Registrar, Balachaur on 31.1.2003. Even after 31.1.2003 the plaintiff had approached defendant no.1 for getting the sale deed executed upon which defendant no.1 had assured regarding getting the suit land re-deemed within a short span of time. Later on, plaintiff came to know that defendant no.1 with a malafide intention and in connivance with his father, defendant no.2 and his son defendant no.3 had executed the sale deed dated 17.6.2004 in favour of his father and thereafter on 23.6.2004 in favour of his son. The plaintiff pleaded that the aforementioned two sale deeds were mere paper transactions and were a sham with the oblique objective to avoid the execution of the sale deed in favour of the plaintiff. Under such circumstances the plaintiff instituted the suit for specific performance praying that defendants no.2 and 3 are liable to join defendant no.1 in execution of the sale deed in favour of the plaintiff.
Upon notice, defendant no.1 filed a written statement setting up a case of denial. It was stated that the agreement to sell was a forged and
RSA No. 1238 of 2010(O&M)
-3-
fabricated document and even the earnest money of Rs.2,40,000/- was never received. Defendant no.1 further set up a plea that the suit had been filed by the plaintiff at the instance of one Satwinder Singh, who is a Patwari in the revenue department and whose wife is President of Municipal Council, Balachaur but on account of certain political rivalry between defendant no.1 and the wife of Satwinder Singh, accordingly, suit had been filed to grab the land in dispute. On the other hand, defendants no.2 and 3 submitted a joint written statement taking up a plea that they were bonafide purchasers for valuable consideration and that they had no notice of the agreement to sell dated 31.8.2001 between the plaintiff and defendant no.1.
On the pleadings of the parties, following issues were struck by
the Trial Court:-
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Upon scanning the evidence and having heard the counsel for the parties, the suit of the plaintiff was decreed and defendants no.2 and 3 were directed to join defendant no.1 in execution of the sale deed in favour of plaintiff in respect of the suit land towards performance of the contract dated 31.8.2001.
Defendant-appellant feeling aggrieved preferred a civil appeal and in terms of impugned judgement dated 27.8.2009 passed by the Additional District Judge, Nawanshahar the judgement and decree of the Trial Court in favour of the plaintiff-respondent has been upheld and the appeal has been dismissed. Under such circumstances the defendantappellant is in second appeal before this Court.
I have heard Mr. Naresh Kaushal, learned counsel appearing for the appellant at length.
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Learned counsel has contended that the courts below have erred in not appreciating the evidence on record in the right perspective. The contention raised is that the agreement to sell was a suspicious document as the same had been got scribed from a Typist rather than a regular Deed Writer. Further the Typist had also not been examined. It was also stated that the plaintiff-respondent Vijay Kumar was involved in a number of litigations and he was a man of dubious character and as such no reliance could have been placed on the agreement to sell dated 31.8.2001. It was also vehemently contended that the suit for specific performance could not have been decreed in favour of the plaintiff-respondent in the light of the fact that the suit had not been instituted immediately after the alleged last date for execution of sale deed stipulated in the agreement to sell even though, it had been filed within the period of limitation. Counsel would contend that on such basis itself the discretion regarding grant of the main relief i.e. specific performance of the contract should not have been exercised in favour of the plaintiff-respondent. Towards such submission, learned counsel has relied upon a decision of this Court reported as 2010(3) Law Herald (PNH)2331 titled as Seth Narain Dass through Legal Representatives Vs. Jitendra Steel & Tubes Ltd., Surekha Building, Faiz Bazar, Delhi.
I have given my thoughtful consideration to the submissions made by learned counsel for the appellant but I find that the present appeal must fail for the reasons recorded hereinafter.
The plaintiff-respondent has proved his readiness and willingness to perform his part of the contract. Prior to 31.1.2003 i.e. the last date for execution of the sale deed, he had exercised the caution of obtaining a copy of the jamabandi so as to verify as to whether the suit land
RSA No. 1238 of 2010(O&M) -6-
had been got re-deemed by the appellant-defendant. Upon becoming aware that the land had not been got re-deemed from the bank, even, a legal notice dated 6.1.2003 had been served upon the appellant-defendant calling upon him to get the suit land re-deemed on or before 31.1.2003. On the date fixed for execution of the sale deed the plaintiff-respondent had appeared before the Sub Registrar for purposes of execution of the sale deed. The readiness and willingness of the plaintiff-respondent to perform his part of the contract was, thus, clear. On the other hand, the defendant-appellant had set up a plea of complete denial as regards execution of the agreement to sell. Even the agreement to sell was proved by the plaintiff-respondent in accordance with law. Mohan Singh marginal witness to the agreement (PW-1) was duly examined and he stated in his affidavit that he personally knew the plaintiff-respondent as also Balbir Singh, defendant-appellant and Hari Singh. There is no requirement in law for examination of the Typist, who had typed the agreement to sell and neither is there any requirement for such agreement to be scribed from a regular Deed Writer. Both the courts below have returned a concurrent finding of fact that the agreement to sell as also the payment of earnest money of Rs.2,40,000/- has been duly proved by the plaintiff-respondent in favour of the defendant-appellant. Even though, the defendant-appellant has pleaded that the agreement to sell is a forged and fabricated document but apart from the bald statement no evidence to such effect has been led. Still further, defendants no.2 and 3 are the father and son of defendant no.1 and they have all been held to reside together. Yet another finding that has been referred by the courts below is that no amount was paid before the Sub Registrar by defendants no.2 and 3 to the defendant-appellant at the time of execution of sale deed dated
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17.6.2004 and 23.6.2004. I find no infirmity in the inference drawn by the courts below and that defendants no.2 and 3 cannot be said to be bonafide purchasers for consideration. Furthermore, the inference that the father and son of the defendant-appellant would certainly be aware as regards the agreement to sell between defendant no.1 and plaintiff is also well founded.
As regards the question of any delay with regard to the suit for specific performance having been instituted by the plaintiff-respondent and such delay being crucial so as to deny the relief of specific performance, the same being an equitable relief, it may be noticed that even though, the court is not bound to grant such relief merely because it is lawful to do so but the discretion has to be exercised on sound and reasonable basis guided by judicial principles. The relief of specific performance, on such issue the observations of Hon'ble Supreme Court in the matter of Mademsetty Satyanarayan v. G.Yelloji Rao and others AIR 1965 SC 1405 would be most relevant, wherein it has been observed as under:-
“6. At the outset we shall construe the relevant, sections of the Specific Relief Act and the Limitation Act unhampered by judicial decisions. Specific Relief Act: Section 22.--The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal.
The following are cases in which the Court may properly exercise a discretion not to decree specific peformance:-
“I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part.
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Illustration.
XXX
II. Where the performance of the contract would involve some hardship on the defendant which he did not forsee, whereas its non-performance would involve no such hardship on the plaintiff.
Illustrations.
XXX
The First Schedule to the Limitation Act.
| Description of suit. | Period of Limitation | Time from which period begins to run. |
|---|---|---|
| Article 113 for specific performance of a contract. |
Three years. | The date fixed for the performance##or## if no such date is fixed ## when the plaintiff has notice that performance is refused.” |
Under S.22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary: discretion must be exercised in accordance with sound and reasonable judicial principles. The cases providing for a guide to Courts to exercise discretion one way or other are only illustrative; they are not intended to be exhaustive. As Article 113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a Court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in S.22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is really difficult to define that field. Diverse situations may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It may better
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be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal.
7. Mr. Lakshmaiah cited a long catena of English decisions to define the scope of a Court's discretion. Before referring to them, it is necessary to know the fundamental differences between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay the time lag depending upon circumstances may itself be sufficient to refuse the relief, but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in earlier case, no question of equity arises.”
In the facts of the present case the last date for execution of the sale deed had been stipulated as 31.1.2003 and the suit had been instituted on 6.7.2004. I find that the relief of specific performance could not be denied merely on account of delay as the suit had admittedly been filed within the period of limitation.
I find that the findings of the courts below are based on due appreciation of evidence and there is no infirmity in the same. In the light of the facts and circumstances noticed herein above, the suit of the plaintiffrespondent has been rightly decreed for the relief of specific performance of the contract. No question of law much less substantial question of law arises for determination in the present second appeal.
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The appeal being devoid of any merit is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
12.1.2012. lucky
Whether to be reported? Yes.
3 issues framed by the court
Whether the discretion to grant specific performance should be denied due to alleged delay or the character of the plaintiff?
Whether second or third parties are bona fide purchasers without notice of the prior agreement to sell?
Whether the suit for specific performance was filed within the limitation period?
Colour shows how this judgement treated each authority
Seth Narain Dass through Legal Representatives Vs. Jitendra Steel & Tubes Ltd.Referred¶43
2010(3) Law Herald (PNH)2331
Mademsetty Satyanarayan v. G.Yelloji Rao and othersExplained¶51
AIR 1965 SC 1405 · Who else cites this
2 provisions across 2 enactments
Balvir Singh
Vijay Kumar
Tejinder Singh Dhindsa
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
