In a second appeal concerning specific performance of a sale agreement, the High Court dismissed the appeal, holding that the appellant's delay of three years and failure to be ready and willing justified the decree below.
appeal dismissed; findings of courts below affirmed.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 2691 of 2009 (O&M) Date of Decision: 15.3.2012.
Subhash Chand
--Appellant
Versus
Rajinder Kumar and another
--Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. V.K. Gupta, Advocate for the appellant.
Mr. Sachin Gupta, Advocate for respondent no.1.
Mr. Munish Mittal, Advocate for respondent no.2.
TEJINDER SINGH DHINDSA.J
The plaintiff-appellant is in second appeal before this Court.
Subhash Chand plaintiff filed a suit for possession by way of specific performance for the suit property on the basis of agreement dated 10.10.1995. It was pleaded that defendant no.1 Rajinder Kumar had agreed to sell the suit property to the plaintiff and had entered into an agreement to sell dated 10.10.1995 for a total sale consideration of Rs.60,000/-. An earnest money of Rs.50,000/- was paid and the final date for execution and registration of the sale deed was fixed as 10.10.1996. As per terms and conditions of the agreement to sell dated 10.10.1995, it was agreed that, if, the defendant failed to execute the sale deed, it would be open for the plaintiff to get the same specifically enforced or to recover double the amount of earnest money. On the other hand in the eventuality of the plaintiff failing to perform his part of the contract the earnest money was liable to be forfeited. It was pleaded that by mutual consent the date for registration of the sale deed was extended to 10.12.1996 and thereafter to
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25.3.1997. Plaintiff pleaded that on the last date so fixed i.e. 25.3.1997 the plaintiff was present in the office of Sub Registrar, Jagadhari along with balance consideration amount but defendant no.1 did not come present. A legal notice was issued the very next date i.e on 26.3.1997 calling upon defendant no.1 to get the sale deed registered. Thereafter, another notice was sent on 14.3.2000 but having evoked no response from the defendant no.1, he approached defendant no.1 and it was disclosed to him that the suit property had already been sold to defendant no.2 on 13.2.1997. Accordingly, the plaintiff pleaded that the sale in favour of defendant no.2 was illegal and specific performance of the agreement dated 10.10.1995 was sought.
Defendant no.1, Rajinder Kumar took a plea of denial. The agreement to sell was stated to be forged and it was stated that on account of a previous litigation between the father of defendant no.1 and one Fakir Chand in which the plaintiff had acted as a mediator, certain documents had been got signed from him in the shape of blank stamp papers and the same may have been misused to set up the agreement to sell. Defendant no.1, however, admitted to having sold the suit property to defendant no.2. Defendant no.2 was proceeded ex-parte by the Trial Court.
The parties went to trial on following issues framed by the Trial
Court:-
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The Trial Court partly decreed the suit and the plaintiff was held entitled to recover Rs.50,000/- from defendant no.1 along with interest @ 6% per annum from 11.10.1995 till the realization of the decretal amount. Being aggrieved, plaintiff-appellant preferred a civil appeal and vide judgement dated 22.5.2009 passed by the First Appellate Court the appeal has been dismissed and the judgement and decree of the Trial Court has been affirmed. Resultantly, the plaintiff-appellant is in second appeal before this Court.
I have heard respective counsel for the parties at length and have perused the case file.
Learned counsel for the appellant would strenuously contend that the agreement to sell having been held to be proved in accordance with law, the relief regarding specific performance of the contract could not have been declined. Learned counsel would further contend that the findings of the First Appellate Court to hold the appellant to be not ready and willing to perform his part of the contract are perverse. Reliance has also been placed upon a judgement of the Hon'ble Apex Court in case of Ramakrishna Pillai & Anr. Vs. Muhammed Kunju & Ors. reported as 2008 (2) R.C.R (Civil) 260 towards furtherance of his submissions. Learned counsel for the respondent would on the other hand contends that the findings of the courts below are well reasoned and based on due appreciation of evidence.
There is a concurrent finding of fact as regards the due execution of the agreement to sell dated 10.10.1995, however, the courts below have taken into account the fact that even though, a sum of
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Rs.50,000/- has already been paid upfront out of a total sale consideration of Rs.60,000/-, yet, the last date for execution of the sale deed had been extended on two occasions. Thereafter, even after the expiry of the last date of execution of the sale deed i.e. 25.3.1997, the appellant had remained silent for almost a period of three years and it was only on 24.3.2000 that he had instituted the suit for specific performance. The reasoning of the First Appellate Court is well founded that a buyer having paid almost the entire sale consideration would not agree to the grant of extension of time for execution of the sale deed and thereafter would not wait for a period of almost three years to seek the relief of specific performance of the contract. The judgement cited by learned counsel for the appellant is, thus, clearly distinguishable on facts.
The courts below have even frowned upon the conduct of the defendant no.1, who had sold the suit property to defendant no.2 even prior to the last date for execution of the sale deed and accordingly has held him liable for return of the earnest money of Rs.50,000/-. If, on cogent and valid reasoning and upon due appreciation of evidence led on record two views are possible; it will not be open for the High Court to interfere and opt for a different view in exercise of jurisdiction under Section 100 of the Code of Civil Procedure unless the findings of the courts below are shown to be perverse.
I do not find any perversity in the findings recorded. The present second appeal must, accordingly, fail as it does not raise any question of law much less a substantial question of law.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
15.3.2012. lucky
Whether to be reported? No.
2 issues framed by the court
Whether the findings of the courts below regarding the appellant's failure to be ready and willing to perform are perverse or based on misappreciation of evidence.
Whether the High Court is justified in granting reliefs different from those awarded by the Trial Court and First Appellate Court despite concurrent findings.
Colour shows how this judgement treated each authority
Ramakrishna Pillai & Anr. Vs. Muhammed Kunju & Ors.Distinguished¶33
Ramakrishna Pillai & Anr. Vs. Muhammed Kunju & Ors. 2008 (2) R.C.R (Civil) 260
Subhash Chand
Rajinder Kumar
Tejinder Singh Dhinda
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
