Dismissed

Rambir v. Mamta

Punjab & Haryana HC15 Feb 2012RSA/3868/2011

Case brief

AI extract

What is this about?

In this second appeal concerning a suit for specific performance of an agreement to sell land, the High Court upheld the lower courts' dismissal of the claim. The Court held that the plaintiff failed to inspire confidence regarding his capacity to pay the balance consideration, rendering the dismissal of specific performance equitable.

What did the court decide?

Second appeal dismissed; relief of specific performance refused; only alternate relief of recovery of double earnest money affirmed.

Rambir Vs Mamta — Specific Performance | Punjab & Haryana HC (2012)

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RSA No. 3868 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 3868 of 2011 (O&M) Date of decision: 15.02.2012

Rambir

......Appellant

Vs.

Mamta

...Respondent

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

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Present: Mr. Surinder Singh, Advocate for the appellant.

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Tejinder Singh Dhindsa, J.

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The plaintiff/appellant is in second appeal before this Court.

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The plaintiff instituted a suit for possession by way of specific performance in respect of agreement to sell dated 01.06.2004 with a further prayer for permanent injunction restraining the defendant from alienating the suit land. It was pleaded that the defendant was owner of the land measuring 10 kanals, 0 marla being 200/1280 share of total land measuring 64 kanals, 0 marla comprised in khewat No.164, khatoni No.224 (hereinafter to be referred as the suit property) situated in the revenue estate of Village Khrindwa, Tehsil-Shahabad, District Kurukshetra. In terms of the agreement to sell entered into between the plaintiff and the defendant pertaining to the suit property, the total sale consideration was fixed at 3,75,000/- and 41,000/- was paid by the plaintiff as earnest money. The last date for execution of the sale deed was fixed as on or before

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RSA No. 3868 of 2011 (O&M)

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15.05.2005. It was pleaded that 15.05.2005 being a Sunday, the plaintiff had remain present in the office of Sub-Registrar, Shahabad on 16.05.2005 along with balance sale consideration as also other expenses but the defendant did not come present. Accordingly, the plaintiff got his affidavit attested from the office of Executive Magistrate, Shahbad on 16.05.2005 towards the proof of his presence. The plaintiff had always been ready and willing to perform his part of the contract and since the defendant was not coming forth to discharge his onus. Accordingly, the suit had been filed. Upon notice, the defendant denied the execution of the agreement to sell dated 01.06.2004. He even denied from receiving any earnest money from the plaintiff. It was stated in the written statement that he is an illiterate villager and the plaintiff had brought him to Shahbad on the pretext of giving surety in a criminal case and accordingly, his thumb impression have been got affixed fraudulently.

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Upon the pleadings of the parties, the following crucial issue was framed by the trial Court:

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Whether defendant entered into an agreement to sell the suit land to the plaintiff vide agreement dated 01.06.2004 and plaintiff is entitled to relief of specific performance of that contract alongwith decree for possession of suit land? OPP

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After having heard respective counsel for the parties and having scanned the evidence brought on record, the suit of the plaintiff was decreed for the alternate relief of recovery of ` 82,000/- i.e. double of the earnest money. Plaintiff was also held entitled to 6% interest P.A. from the date of agreement till realisation. Plaintiff/appellant filed civil appeal and vide judgment dated 12.05.2011 passed by the Additional District Judge,

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RSA No. 3868 of 2011 (O&M)

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Kurukshetra, judgment and decree of the trial Court has been affirmed and the appeal has been dismissed. Resultantly, the plaintiff/appellant is in second appeal before this Court.

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I have heard Mr. Surinder Singh, Advocate for the appellant at length.

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Learned counsel would vehemently contend that once the agreement to sell stood duly proved in accordance with law, the Courts below could not have refused the main relief with respect to specific performance of the agreement to sell dated 01.06.2004 in relation to the suit property.

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I am unable to agree with the contentions raised by the learned counsel for the appellant. The Courts are not bound to grant the discretionary relief of specific performance merely because it is lawful to do so. Such relief is granted when it is equitable and it has been held in a catena of judgments with the readiness and willingness to perform the terms of the contract have to be inferred from the totality of the circumstances as also the conduct of the parties seeking the relief of specific performance.

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In the facts of the present case, it was imperative for the plaintiff/appellant not only to aver but also to prove that he had all alone been ready and willing to perform the terms and conditions of the agreement to sell dated 01.06.2004. It was plaintiff/appellant's case himself that he had paid a sum of 41,000/- out of the total sale consideration of 3,75,000/-. As such an amount of ` 3,34,000/- was to be paid by him at the time of execution of the sale deed i.e. on or before 15.05.2005. The suit for possession by way of specific performance had been instituted by the plaintiff/appellant on 16.07.2005 and along with the suit, the plaintiff had

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RSA No. 3868 of 2011 (O&M) -4-

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moved an application under Order 33 Rule 1 of the Code of Civil Procedure, permitting him to file the suit as an indigent person. Both the Courts below have concluded that by his conduct, the plaintiff did not inspire any confidence that he had the capacity to pay the balance sale consideration on the date stipulated for execution of the sale deed. I do not find any perversity in the conclusion and findings recorded concurrently by both the Courts below.

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No question of law much less substantial question of law arises for determination in the present second appeal.

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For the reasons recorded above, the present second appeal must fail and is accordingly dismissed.

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Appeal dismissed.

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February 15, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE

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Note: Whether to be reported? No

Rambir v. Mamta

Case brief

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Rambir v. Mamta

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