This Court dismissed the second appeal challenging the decree for specific performance granted to the respondent-plaintiff. Finding the respondent was ready and willing, as evidenced by payments made, the appellations were held to be sans merit.
The second appeal filed by Karnail Singh and another was dismissed.
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.
RSA-4520- 2014 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA-4520- 2014 (O&M) Date of Decision: September 1, 2014
Karnail Singh and another
.....Appellants
v.
Kashmir Singh
......Respondent
CORAM: HON'BLE MR.JUSTICE NARESH KUMAR SANGHI
Present: Mr.Abhijeet P.S.Chaudhary, Advocate for the appellants.
NARESH KUMAR SANGHI, J.(ORAL)
The present regular second appeal has been filed by appellants Karnail Singh and Jarnail Singh challenging the judgment, dated 22.05.2014, passed by learned Additional District Judge, Sangrur, whereby the appeal filed by the appellants challenging the judgment and decree, dated 11.08.2011, passed by learned Civil Judge (Junior Division), Sunam, decreeing the suit filed by Kashmir Singh, the respondent-plaintiff, for specific performance of the agreement, dated 08.04.2008, was dismissed.
Learned counsel for the appellants has impugned the judgment, dated 22.05.2014, passed by the learned Additional District Judge, Sangrur, on the following grounds:-
“(i) Kashmir Singh, the respondent-plaintiff, was not present before the Sub Registrar, Sunam, District
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RSA-4520- 2014 (O&M)
Sangrur, on 10.10.2008, but the appellants were present to get the sale deed executed in favour of Kashmir Singh;
(ii) no legal notice was issued by Kashmir Singh to the appellants before filing of the suit;
(iii) Kashmir Singh was not possessing the adequate amount to pay to the appellants, the amount of sale consideration, for getting the sale deed executed in his favour;
(iv) Appellants are still ready to return the earnest money along with interest to Kashmir Singh, the respondent-plaintiff.” I have heard the learned counsel for the appellants and with his able assistance gone through the material available on record.
Brief facts of the case are that Kashmir Singh, the respondent-plaintiff, alleged that the appellants, Karnail Singh and Jarnail Singh, entered into an agreement to sell their land measuring 11K-16M to him (Kashmir Singh) for an amount of 11,40,000/- per acre and executed an agreement to sell, dated 08.04.2008, in favour of Kashmir Singh after receiving an amount of 8.00 lacs as earnest money. The sale deed was to be executed on or before 07.07.2008. The date of execution of the sale deed was extended to 10.10.2008 by mutual consent of the
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RSA-4520- 2014 (O&M)
parties. An additional amount of 1,20,000/- was also received by the appellants after making an endorsement on the reverse side of the agreement. It was also alleged that the appellants were in need of money, therefore, an amount of 1,25,000/- was also paid on 05.08.2008 against an endorsement on the back of the page of the agreement. Since the appellants failed to execute the sale deed, in spite of the fact that the respondent-plaintiff was ready with the remaining sale consideration amount and necessary expenses for execution of the sale deed, therefore, finding no other option, the respondent-plaintiff filed the suit.
In response to the notice of the suit issued to the appellants, they appeared before the learned Civil Judge (Junior Division), Sunam, and filed joint written statement raising the issues of locus standi, estoppel, maintainability of suit, allegation of concealing of facts, non-willingness of Kashmir Singh (the respondent-plaintiff) to get the sale deed executed whereas the answering appellant-defendants were always ready and willing to execute the sale deed since they remained present in the office of Sub Registrar, Sunam, from 9.00 A.M. to 5.00 P.M.; Kashmir Singh (the respondent-plaintiff) did not turn up on 10.10.2008 to get the sale deed executed; the appellants got their presence marked through an affidavit; the respondent-plaintiff failed to comply with the terms and conditions of the agreement and, as such, the same was due to be cancelled and the amount paid by him (respondent-
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plaintiff) stood forfeited. However, the appellants admitted the execution of the agreement and subsequent payments made to them through separate endorsements.
The respondent-plaintiff filed replication reiterating the averments made in the plaint. On the pleadings of the parties, the following issues were framed by the learned trial Court:-
“1. Whether plaintiff has always been ready and willing to perform his part of the contract, dated 08.04.2008, and extended up to 10.10.2008? OPP
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present suit by his own act and conduct? OPD
The onus to prove issue Nos.1 to 4 was on the respondent-plaintiff while the remaining issues, i.e. Issue Nos.5 to 8 were to be substantiated by the appellant-defendants.
In order to prove his case, the respondent-plaintiff, namely, Kashmir Singh appeared himself as PW1 and produced Karamjit Singh as PW2 and Gurjit Singh as PW3.
Appellant Jarnail Singh appeared as DW1 and examined Satgur Singh, the Registration Clerk, as DW2.
After hearing the learned counsel for the parties , the learned Civil Judge (Junior Division) Sunam, decreed the suit for specific performance of the agreement and provided three months' time for execution and registration of the sale deed.
The first appeal filed by the appellants was dismissed by the learned Additional District Judge, Sangrur, vide judgment dated 22.05.2014. The only issue raised before the learned Additional District Judge, as enshrined in para No.10 of his judgment, that the only material point on the basis of which the appeal had been preferred was - as to whether the respondentplaintiff was ready and willing to perform his part of agreement to sell? However, before this Court, the learned counsel for the appellants has raised the additional arguments of non-issuance of legal notice by the respondent -plaintiff to the appellants before
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filing of the suit, and that the respondent-plaintiff was not having the requisite money with him to pay for execution of the sale deed. The third additional issue raised by the learned counsel for the appellants is that the appellants were still ready to return the earnest money along with interest.
Though the appellants cannot be permitted to raise the arguments which were not set forth before the learned first appellate Court yet to part justice, the said additional arguments are also being analysed by this Court.
Since issue Nos.1 to 3 raised before this Court are inter connected, therefore, the said arguments are being dealt with together.
Before dealing with such arguments, it is apposite to mention here that the learned counsel for the appellants was specifically asked by this Court as to whether the appellants are still ready to honour the agreement, dated 08.04.2008, entered into by the parties with mutual consent, learned counsel for the appellants stated at Bar that he has sought instructions from the appellants and they are not ready to honour the said agreement except for repayment of the earnest money along with interest up-to-date.
It is well settled that getting the presence marked before the Sub-Registrar is not a requirement of law. The parties get their presence marked by way of getting an affidavit attested
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RSA-4520- 2014 (O&M) - 7 -
just to show that the said person, who got his affidavit attested, remained present in the Office of Sub Registrar. By the said fact, the Courts cannot presume that the person, who had got his affidavit attested from the Sub Registrar while exercising the powers as Executive Magistrate, remained present in the said office throughout the day. While taking into consideration the material available on record and the attending circumstances, the Court has to decide as to whether the respondent-plaintiff was ready and willing to get the sale deed executed in his favour. In the case in hand, 11K-16M of land was agreed to be purchased by Kashmir Singh, the respondent-plaintiff, @ 11,40,000/- per acre vide agreement dated 08.04.2008. An amount of 8.00 lacs was paid as earnest money by the respondent-plaintiff to the appellant-defendants and three months' period was fixed for execution and registration of the sale deed. An additional amount of 1,20,000/- was paid by the respondent-plaintiff to the appellant-defendants and the date for execution and registration of the sale deed was extended to 10.10.2008. Since the appellants were in need of the money, therefore, an additional amount of 1,25,000/- was also paid to the appellant-defendants against receipt and an endorsement on the back page of the agreement, in this regard was made. Thus, a total sum of `10,45,000/- was paid to the appellant-defendants by the respondent-plaintiff.
The readiness and willingness of Kashmir Singh, the
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respondent-plaintiff, can very well be gathered from the manner in which the payment was made by him to the appellantdefendants. In case, after entering into an agreement, the respondent-plaintiff had no intention to execute the said agreement in accordance with its terms and conditions, then in normal course, he (plaintiff) would not have paid the additional amount of 1,20,000/- and 1,25,000/-. Mere averments of the appellants that the respondent-plaintiff was not possessing the requisite amount to get the sale deed executed by itself would not be sufficient to sustain the said submission. No evidence to that effect was led by the appellant-defendants. On the other hand, it was the consistent case of the respondent-plaintiff that he was ready and willing to get the sale deed executed. Even otherwise, in the normal course, it does not appear to be sound that after paying more than `10,00,000/- to the appellant-defendants, the respondent-plaintiff would not be ready to get the sale deed executed in his favour.
Both the Courts below have recorded sound reasons to repel the arguments raised by the learned counsel for the appellant-defendants in that regard. This Court is also of the considered view that there is no substance on the factual aspects raised before the third Court, i.e. The High Court, and there does not exist any substantial question of law to show that some illegality, perversity or irregularity had been committed by the
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Courts below while passing the impugned judgments and decree. Therefore, the present appeal sans merit and is hereby dismissed.
September 1, 2014 meenu
(NARESH KUMAR SANGHI) JUDGE
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3 issues framed by the court
Whether the respondent-plaintiff was ready and willing to get the sale deed executed in his favour within the stipulated period?
Whether the appellants were ready and willing to execute the sale deed?
Whether substantial question of law exists regarding illegality or perversity in the courts below?
Karnail Singh
Jarnail Singh
Kashmir Singh
NARESH KUMAR SANGHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
