Dismissed

Amar Singh v. Santosh Kumar and Ors.

Punjab & Haryana HC13 May 2014RSA/4342/2009

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed an appeal challenging a decree for specific performance. The court held the appellant's claim of novation was not pleaded earlier and that subsequent writings merely extended the sale date without substituting the original contract.

What did the court decide?

Appeal dismissed; original decree for specific performance of agreement to sell dated 29.9.1995 upheld.

Amar Singh Vs Santosh Kumar and Ors. — Specific Performance | Punjab & Haryana HC (2014)

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RSA No.4342 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.4342 of 2009 (O&M) Date of decision:13.05.2014

Amar Singh

....Appellant

Versus

Santosh Kumar and others

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....Respondents

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CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Whether reporters of local newspapers may be allowed to see judgment?

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To be referred to reporters or not?

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Whether the judgment should be reported in the Digest?

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Present:- Mr. Anil Mehta, Advocate for the appellant.

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RAKESH KUMAR GARG, J

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As per the averments made in the plaint, appellantdefendant No.1 who was owner in possession of the agricultural land measuring 12 kanals 7 marlas being 1/3^rd share of the total land measuring 37 kanals 1 marla as detailed in the head note of the plaint, agreed to sell the same to the plaintiff for a sale consideration of 2,31,566/- at the rate of1,50,000/- per acre and received a sum of ` 2,00,000/- as earnest money and executed the agreement to sell dated 29.9.1995 in the presence of the witnesses. It was agreed that remaining sale consideration would be paid at the

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RSA No.4342 of 2009 (O&M)

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time of execution of the sale deed which was stipulated to be executed on 15.4.1996. It is the further case of the plaintiffrespondent that on the request of the appellant, a sum of ` 20,000/was given to him on 12.4.1996 and the date for execution of the sale deed was extended to 17.6.1996. This writing was executed on back of the original agreement to sell and was signed by plaintiff and defendant No.1. Thus, defendant No.1 received Rs.2,20,000/- from plaintiff. On 17.6.1996, plaintiff requested defendant No.1 to execute the sale deed, but he again sought extention of time. So, date for execution of the sale deed was extended upto 5.8.1996. On 5.8.1996 also defendant could not execute the sale deed and sought extension of time. So, with consent of both the parties, date for execution of the sale deed was fixed as 5.1.1997. A writing was executed on the back of the original agreement to sell and was signed by both the parties and attested witnesses. According to the plaintiff-respondent, he remained present in the office of Sub Registrar on 6.1.1997 (5.1.1997 being holiday) and waited almost the entire day for the appellant, but appellant did not turn up for the reasons best known to him. Thereafter, appellant got his presence marked and a legal notice was also served upon the appellant asking him to get the sale deed executed on 10.4.1997. The said notice was received by him but he again failed to turn up on the date fixed. It is the further case of the plaintiff-respondent that appellant-defendant No.1 sold a portion of suit land measuring 5 kanals 11 marlas to

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RSA No.4342 of 2009 (O&M)

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defendant No.2 (now respondent No.2) by virtue of a registered sale deed dated 3.7.1996 and further mortgaged the property with defendants No.3 and 4 (now respondents No.3 and 4). Plaintiffrespondent further averred that he was still ready and willing to perform his part of contract. Appellant committed breach of agreement by selling a portion of land to defendant No.2 and not abiding by the terms and conditions of the agreement to sell. Hence the necessity arose to file the suit.

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Upon notice, defendants appeared and filed written statement raising various preliminary objections. On merits, appellant denied execution of agreement to sell as well as receipt of earnest money. It was further alleged that his signatures obtained on blank pieces of paper were misused by the respondent. In fact, appellant raised a loan amounting to 30,000/- from State Bank of India, Naraingarh and gave the said amount to the plaintiff-respondent who was facing acute shortage of funds. Respondent issued three cheques dated 21.9.1989 amounting to 2000/-, 25.2.1990 amounting to 5000/- and 5.4.1990 amounting to 5000/-. However, the cheques were returned back unpaid. Thereafter, appellant tried to contact the plaintiff-respondent but he came to know that plaintiffrespondent has gone abroad. However, the loan amount was repaid by the plaintiff-respondent to him in the year 1992, when he came back. After some time, appellant was in need of money and he approached the plaintiff-respondent who agreed to pay ` 40,000/-on

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RSA No.4342 of 2009 (O&M)

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interest at the rate of ` 3% per month and on the pretext of furnishing some security signatures of appellant were taken on blank pieces of paper and were misused by the plaintiff-respondent, by fabricating an agreement to sell thereupon. Further, appellant admitted execution of sale deed in favour of respondent No.2 qua a portion of the suit land for a valuable consideration. The other allegations were denied and dismissal of the suit was prayed for.

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In the written statement filed on behalf of respondent No.2, it was stated that he was a bona fide purchaser for valuable consideration without notice of prior agreement to sell in favour of the plaintiff-respondent. It was further pointed out that appellant was owner of land measuring 1 kanal 17 marlas out of total land measuring 5 kanals 11 marlas, out of which, sale deed was executed in his favour of portion land. Sale deed dated 3.7.1996 executed in favour of defendant No.2 was legal and valid and dismissal of the suit was prayed.

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Separate written statement were filed by defendants No.3 and 4. However, later on these defendants were given up by the plaintiff-respondent.

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On the pleadings of the parties, following issues were

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framed:-

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1. Whether the defendant no. I has executed an agreement to sell dated 29.9.95 in favour the plaintiff, if so, to what effect? OPP.

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RSA No.4342 of 2009 (O&M)

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2. If Issue No.1 is proved, whether plaintiff is entitled to relief of possession by way of specific performance of the agreement dated 29.9.95? OPP.

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3. Whether the sale deed dated 3.7.1996 executed by defendant no.1 in favour of defendant no.2 is liable to be set aside and same is not binding upon the rights of the plaintiff? OPP.

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

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5. Whether the mortgage deed No.1475/1 dated 18.10.1996 in favour of the defendant no.3 and mortgage deed No. 2429/1 dated 20.3.1997 in favour of defendant no.4 are illegal, null and void and same are not binding upon the rights of the plaintiff? OPP.

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6. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants? OPD

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

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

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9. Whether the plaintiff is estopped to file the present suit by his own acts and conduct? OPD

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10. Whether the plaintiff has no cause of action to file the present suit? OPD

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11. Whether the plaintiff has not come to the Court with clean hands and suppressed true and material facts from the Court? OPD

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RSA No.4342 of 2009 (O&M)

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12. Whether the suit is not properly valued for the purpose of Court fee? OPD

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13. Whether the suit is barred by limitations? OPD

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14. Relief.

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After hearing learned counsel for the parties and considering the evidence on record, trial Court decided issues No.1 to 4 and 6 and 13 in favour of the plaintiff-respondent, whereas, no finding was given on issue No.5 as the amount of mortgage already stood paid. Issues No.7 to 12 were decided against the defendants being not pressed. Resultantly, the suit was decreed directing the appellant to execute the sale deed, further observing that portion of land sold in favour of respondent No.2 be deducted from the land agreed to be sold by the appellant and plaintiff-respondent was entitled to execute the sale deed in respect of land measuring 10 kanals 10 marlas only after deducting the land measuring 1 kanal 17 marlas purchased by defendant No.2.

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Aggrieved from the judgment and decree of the trial Court, defendant No.1/appellant filed an appeal before the First Appellate Court which was also dismissed.

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While affirming the findings of the trial Court and dismissing the appeal, the lower Appellate Court held that the agreement to sell dated 29.9.1995 in question was duly executed by the appellant and the date for execution and registration of

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RSA No.4342 of 2009 (O&M)

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agreement to sell in favour of the plaintiff-respondent was extended vide writing dated 5.1.1997 (Ex.P4) and there was not an iota of evidence to prove the assertions of the appellant that the aforesaid agreement to sell was result of fraud and fabricated. It is the further relevant to mention that the lower Appellate Court also observed that vide writing dated 5.1.1997 (Ex.P4) only the date fixed for execution of the sale deed was got extended by the appellant and no new document was executed by the parties.

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Still not satisfied, defendant No.1 has filed the instant appeal submitting that following substantial questions of law arise in this appeal:-

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i) Whether the specific performance of an agreement which has become inexecutable can be ordered by the Court?

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II) Whether after the Novation of agreement/contract, the earlier agreement/contracts looses its validity in the eyes of law and becomes in^- executable?

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iii) Whether without seeking the specific performance of the latest/subsequent agreement, can a party seek specific performance of the earlier agreement which has become nonest in the eyes of law?

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iv) Whether the Courts can ignore the existence Novation of contract between the parties while ordering the specific performance^, of an earlier agreement?

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v) Whether the courts below failed to appreciate the documents record ?

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RSA No.4342 of 2009 (O&M)

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vi) Whether the impugned Judgments are against law and facts on the file and are liable to be set aside on this ground alone?

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vii) Whether the Courts below erred in ignoring the relevant material and piece of documentary evidence ?

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viii) Whether the findings of the Courts below are perverse and based on no evidence or law?

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ix) Whether the Courts below failed to correctly peruse the pleadings and evidence thereby rendering the judgments and decrees null and void?

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x) Whether the Courts below can go beyond the pleadings of the parties?

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xi) Whether the impugned orders are not sustainable in the eyes of law?

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xi) Whether the impugned judgments and decrees are against law and facts on the file, and being based on conjectures and surmises are liable to be set aside?

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In support of his case, learned counsel for the appellant has argued that a fresh agreement was executed between the parties on 6.8.1996 and thus, there was novation of the earlier contract between the parties,but strangely enough the respondent/plaintiff did not claim any relief of specific performance of the last agreement dated 6.8.1996 as agreement dated 29.9.1995 merged into the agreement dated 6.8.1996 which was subsequently executed by the parties and there remained no agreement dated

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RSA No.4342 of 2009 (O&M)

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29.9.1995 in the eyes of law and that said agreement becomes nonest and no specific performance of the agreement can be ordered on the basis of said contract as there was novation of contract between the parties and that the plaintiff-respondent has not claimed any specific performance, the suit was liable to be dismissed.

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It may further be noticed that learned counsel for the appellant has confined his argument only to the extent of raising the aforesaid argument.

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At this stage, it is relevant to notice the observations of the lower Appellate Court which read thus:-

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14. Let us once again focus our attention to Ex.P1 as also Ex.P4 and try to find out in the light of evidence adduced on the case file as to whether a new agreement to sell came into existence by execution of Ex.P4, or by same, both the parties intended to simply extend the time fixed for execution of the sale deed. Section 62 of the Indian Contract Act provides that if parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. It is also settled law that essence of novation of contract lies in the intention of the parties to supersede the old contract by new contract and that where there are material or substantial circumstances which go to the root of the agreement, then it can be regarded in Law as a

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RSA No.4342 of 2009 (O&M)

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new agreement. It has further been held that both the subject matter and the date of payment, are material parts of any agreement for sale, and change in either of these terms brings about a new agreement (reference in this regard is placed upon an authority reported in AIR 1935 Oudh 366, as also, AIR 1991 Bombay129).

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The question, which therefore, needs to be determined, is, as to whether the parties intended to substitute a new contract in place of already existing one, or their intention was simply to get the date fixed for execution of the sale-deed extended. In the case in hand, it would be appropriate to mention that this argument has been raised for the first time at the Appellate stage, admittedly, the same was not canvassed before the learned Civil Judge (Senior Division) and neither this plea was taken in the written statement. That apart, a perusal of Ex.P4 goes to show that the subject matter of the agreement to sell as also the date of payment remained the same, the factum of previous agreement to sell having been executed between the parties was also mentioned as was the fact of payment of earnest money. In fact, various dates, vide which period for execution of the sale deed was extended, were also categorically mentioned in Ex.P4. The essential terms

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RSA No.4342 of 2009 (O&M)

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and conditions of the agreement to sell remained just the same, this document was also scribed by the Deed Writer Shri Makhan Singh Grover, who had scribed the agreement to sell dated 29.9.1995 and various other writings, vide which the date fixed for execution of the sale deed was extended, in fact, both the attesting witnesses of the agreement to sell dated 29.9.1995 also put their signatures on Ex.P4. From the statements made on oath by both the attesting witnesses, Deed Writer as also plaintiff himself, it can be gathered that in fact, none of the parties had the intention to enter into a new agreement to sell or to replace the earlier agreement to sell dated 29.9.1995. From the evidence on the record and the other connecting circumstances, it can be inferred that as the date fixed for execution of the sale deed was got extended by defendant No.1 many a times, therefore, to ensure strict compliance on the part of defendant No.1, a formal writing was scribed, vide which one final date fixed for execution of the sale deed was mentioned which was agreed to by both the parties in presence of attesting witnesses. It can certainly not be inferred that by virtue of the same, the original contract was relinquished. The conclusion that can thus be arrived at on carefully scrutinizing the entire evidence on the file,

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RSA No.4342 of 2009 (O&M)

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is that by virtue of Ex.P4, Ex.P1 (agreement to sell dated 29.9.1995) was re-enforced.

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From the aforesaid observations, it is made out that argument, as raised before this Court, has neither been pleaded in the written statement, nor the same was canvassed before the Civil Judge (Senior Division).

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Not only this, specific findings have been recorded by the lower Appellate Court to the effect that the document in question is not a new agreement but re-enforcing the new agreement dated 29.9.1995 while observing so, the lower Appellate Court has held that the essential terms and conditions of the agreement to sell remained just the same, this document was also scribed by the Deed Writer Shri Makhan Singh Grover, who had scribed the agreement to sell dated 29.9.1995 and various other writings, vide which the date fixed for execution of the sale deed was extended, in fact, both the attesting witnesses of the agreement to sell dated 29.9.1995 also put their signatures on Ex.P4.

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Nothing has been argued before this Court challenging the observations of the lower Appellate Court with regard to the aforesaid document.

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In view of the observations of the lower Appellate Court that document was only a formal writing seeking strict compliance on the part of the appellant vide which final date fixed for agreement to sell was to be executed was agreed by both the parties in the

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RSA No.4342 of 2009 (O&M)

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presence of the witnesses, this Court finds no merit in the argument raised which is beyond pleadings. Thus, no substantial questions of law, as raised, arise in this appeal.

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Dismissed.

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May 13, 2014 savita

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(RAKESH KUMAR GARG) JUDGE

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Amar Singh v. Santosh Kumar and Ors.

Case brief

What is this about?

What did the court decide?

Amar Singh v. Santosh Kumar and Ors.

Case brief

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