Dismissed

Harsimran Kaur and Anr. v. Surinder Kaur and Anr.

Punjab & Haryana HC21 May 2014RSA/1700/2013

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a decree awarding specific performance of an agreement to sell. The Court upheld the decision that plaintiffs were ready and willing to perform their part by being present at the sub-registrar office earlier than the defendants and having offered partial payment.

What did the court decide?

Vacated the judgment and decree of the Courts below and dismissed the appeal.

Harsimran Kaur and Anr. Vs Surinder Kaur and… — Specific Performance | Punjab & Haryana HC (2014)

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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh

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RSA No.1700 of 2013 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.1700 of 2013 (O&M) Date of decision:21.05.2014

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Harsimran Kaur and another

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...Appellants

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Versus

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Surinder Kaur and another

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...Respondents

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CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain

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Present: Mr. Sumeet Mahajan, Senior Advocate, with Mr. Vishal Sharma, Advocate, for the appellants.

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Mr. R.K.Chhibbar, Senior Advocate,with Mr. Lalit Pathak, Advocate, for the respondents.

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RAKESH KUMAR JAIN, J

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The defendants are in appeal against the judgment and decree of both the Courts below by which suit filed by the plaintiffs for specific performance of the agreement to sell has been decreed.

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According to the case of the plaintiffs, the defendants entered into an agreement dated 23.06.2008 to sell the suit property for a total sale consideration of 1,00,00,000/- after receiving advance of 40,00,000/- in cash and fixed the date of execution and registration of the sale deed as 25.09.2008. Since the defendants did not come forward to execute the sale deed and rather threatened to transfer the suit property in favour of somebody else, the dispute between them was settled by intervention of the respectables from both the sides, as a result of which the defendants agreed

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RSA No.1700 of 2013 (O&M)

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[ 2 ]

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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh

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to accept `20,00,000/- more as earnest money out of the remaining sale consideration and the date of execution of the sale deed was extended to 06.10.2008, which was endorsed at the back of the agreement dated 23.06.2008 by the defendant in her own handwriting in the presence of the plaintiffs and the marginal witnesses. It was also alleged that there is no property in Khasra No.11//3/2 in Khata No.1411/1471 rather the property is comprised in Khasra No.171//3/2 in Khata No.1411/1471 which has been wrongly mentioned as 11//3/2 in the agreement to sell due to inadvertence and the agreement to sell is liable to be rectified to that extent. It is also averred that the plaintiffs asked the defendants many times to execute and register the sale deed in their favour and ultimately, on 03.10.2008, the plaintiffs got prepared drafts of the balance sale consideration and approached them, but the defendants refused to accept the same. On 06.10.2008, the plaintiff Harjit Singh, after intimating the defendants, remained present in the office of Sub Registrar, Ludhiana from 9.00 a.m. to 5.00 p.m., but the defendants did not turn up. The plaintiffs have claimed that they have been always ready and willing to perform their part of the agreement to sell and also served a registered A.D. legal notice through their counsel upon the defendants to execute the sale deed on or before 16.10.2008. Even on 13.02.2009, a day prior to filing of the present suit, the plaintiffs personally approached the defendants with a request to execute the sale deed, but the defendants refused and hence, the present suit was filed.

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On the other hand, the case of the defendants is that the

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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh

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RSA No.1700 of 2013 (O&M)

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plaintiffs have failed to make the payment of balance consideration. On 25.09.2008, the defendants waited for the plaintiffs, but they did not turn up with the balance sale consideration. They served a legal notice upon the plaintiffs on 26.09.2008 that they did not turn up on 25.09.2008 and not tendered the balance sale consideration and have, thus, breached the contract. It is alleged that on 27.09.2008, the plaintiffs approached the defendants and stated that they are not in possession of 60,00,000/- and were having only 20,00,000/- and the balance sale consideration of 40,00,000/- shall be paid on 06.10.2008, but on that date, the plaintiffs did not turn up. The defendants have claimed that there was great hardship for the defendants as the prices of the real estate in the locality have gone high. It was, however, admitted that the defendants are owner in possession of the suit property and agreed to the sell the same on 23.06.2008 to the plaintiffs for 1,00,00,000/- after receiving `40,00,000/- as earnest money and the date for execution of the sale deed was fixed as 25.09.2008, but it is claimed that the agreement stood cancelled as the plaintiffs were not having sufficient funds.

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The plaintiffs filed replication, denying the averments made in the written statement and reiterating the stand taken in the plaint. On the pleadings of the parties, the Trial Court framed the following issues:-

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“1. Whether the plaintiffs remained ready and willing to perform their part of the contract?OPP.

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Whether the plaintiffs are entitled for specific performance of agreement to sell dated 23.06.2008

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RSA No.1700 of 2013 (O&M)

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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh

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*********

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on payment of balance sale price of `40,00,000/-? OPP.

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Whether the suit is not maintainable in the present form?OPD.

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Whether the plaintiffs are estopped by their act and conduct from filing the present suit?OPD.

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Whether the suit property is not correctly described. If so, its effect?OPD.

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Whether the plaint is not properly verified, if so, its effect?OPD.

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Whether the suit is properly valued for the purpose of court fee and jurisdiction?OPP.

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Whether the plaintiffs have not come to the Court with clean hands. If so, its effect?OPD.

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Relief.”

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The plaintiffs examined Harjit Singh as PW1, Harbhajan Singh as PW2, Prem Sood as PW3, Baldev Chand as PW4, Nikka Singh as PW5 and Harjit Singh again examined himself as PW6, whereas the defendant Milwant Singh examined himself as DW1.

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Both the Courts below, after appreciation of the evidence, decreed the suit of the plaintiffs.

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There is no dispute between the parties about the execution of the agreement to sell Ex.P1 and the endorsement Ex.P2 dated 27.09.2008. There is also no dispute that advance of `40,00,000/- was taken by the

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RSA No.1700 of 2013 (O&M)

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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh

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defendants at the time of execution of agreement to sell Ex.P1 and `20,00,000/- was again paid to the defendants by the plaintiffs on 27.09.2008 when the time was extended for execution and registration of the sale deed to 06.10.2008. The only issue that has been raised before the Courts below and before this Court as well is about the readiness and willingness of the plaintiffs to perform their part of the contract.

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Learned counsel for the appellants has vehemently argued that the plaintiffs were not ready with the balance sale consideration as they could not offer the remaining sale consideration of 60,00,000/- when the time was extended because on that day, the plaintiffs had only offered 20,00,000/- showing their inability to make the payment of entire amount of 60,00,000/- and, thus, by way of endorsement Ex.P2, the time was extended after payment of 20,00,000/-. On this ground, it is argued that the suit filed by the plaintiff should have been dismissed.

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This argument, in my considered view, is not available to the defendants to allege that the plaintiffs were not ready and willing to perform their part of the contract. If the plaintiffs were not having the balance sale consideration on the date of execution and registration of the sale deed fixed between the parties and had offered 20,00,000/- out of the balance sale consideration of 60,00,000/-, the defendants could have refused to execute and register the sale deed and as per terms and conditions of the agreement, they could have forfeited the advance paid by the plaintiffs, but since the time was extended between the parties by their mutual consent and an endorsement was also made at the back of the agreement itself after

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RSA No.1700 of 2013 (O&M)

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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh

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receiving another sum of `20,00,000/-, the extension of time for the purpose of registration of sale deed to 06.10.2008 would show that the parties to the lis had agreed that the plaintiffs may still make the payment up to 06.10.2008 of the balance sale consideration and get the sale deed executed and registered in their favour. The question is as to whether on 06.10.2008, the plaintiffs were ready and willing to perform their part of the contract. In this regard, both the parties have produced on record their affidavits sworn before the Sub Registrar inasmuch as Malwant Singh has produced his affidavit Ex.D7 and Harjit Singh PW1 has produced his affidavit Ex.P6. The learned Courts below have found that Ex.P6 bears the number of the Oath Commissioner as 170914, whereas the affidavit Ex.D7 bears number 171064, meaning thereby the affidavit Ex.P6 was prepared much earlier than the affidavit Ex.D7 prepared by the defendants. Both the parties were, thus, present in the Tehsil compound for the purpose of execution and registration of the sale deed. In these circumstances, it cannot be held that the plaintiffs were not ready and willing to perform their part of the contract.

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Learned counsel for the appellants has further argued that the plaintiffs had produced only photocopy of the drafts with regard to payment of balance sale consideration and did not produce the originals thereof.

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In this regard, a categoric finding has been recorded in para 19 of the judgment of the Trial Court in which it has been held that the plaintiffs had produced original drafts before the Court.

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In view of the aforesaid discussion, I do not find any error in

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RSA No.1700 of 2013 (O&M) [ 7 ]

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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh

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appreciation of evidence on the part of the Courts below while decreeing the suit of the plaintiffs as the plaintiffs have been found to be ready and willing to perform their part of the contract as there was not only the money with them at the time of execution and registration of the sale deed but they were also present before the Sub Registrar much earlier than the defendants and there was no reason for them to hide at that time when the sale deed was to be executed as they had already paid `60,00,000/- as advance to the defendants which could have been easily forfeited by the defendants in the name of the breach of the contract.

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Dismissed.

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May 21, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE

Harsimran Kaur and Anr. v. Surinder Kaur and Anr.

Case brief

What is this about?

What did the court decide?

Harsimran Kaur and Anr. v. Surinder Kaur and Anr.

Case brief

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What did the court decide?

What the court decided

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