R.S.A.No. 191 of 1996 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 191 of 1996
Date of decision: 17.8. 2009
Pala Singh
......Appellant
Versus
Ram Chander
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Anupam Gupta, Advocate,
for the appellant.
Mr.R.K.Gupta, Advocate,
for the respondent.
****
SABINA, J.
Plaintiff Ram Chander filed a suit for specific performance
and the same was decreed by the Additional Senior Sub Judge,
Rajpura vide judgment and decree dated 5.1.1991. In appeal, the
said judgment and decree were upheld by District Judge, Patiala vide
judgment and decree dated 8.1.1996 . Hence, the present appeal by
the defendant.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
R.S.A.No. 191 of 1996 2
“2. Brief facts of the case are that plaintiff
Sh.Ram Chander filed a suit for possession by way of
specific performance against defendant/appellant Pala
Singh alleging that Pala Singh defendant agreed to sell
the suit land fully described in the headnote of the plaint
to the plaintiff for a sum of Rs.2,50,000/- vide agreement
to sell dated 28.2.1986. Defendant received a sum of
Rs.30,000/- out of the sale consideration. Amount of
Rs.5,000/- was paid to the plaintiff on 30.10.1985 when
the earlier agreement was executed and amount of
Rs.25,000/- was paid to the plaintiff when the agreement
dated 28.2.1986 was executed between the parties.
Latest agreement is dated 28.2.1986. The first
agreement merged into the second one dated 28.2.1986.
It was agreed upon that the sale deed would be executed
on or before 31.8.1986 on payment of the remaining
consideration of Rs.2,20,000/-. Plaintiff alleged that he
was always ready and willing and still ready and willing to
perform his part of the contract and he is also ready to get
the sale deed executed in his favour in terms of the
agreement but the defendant has breached the
agreement. Hence this suit.
3. Notice of the suit was given to the
defendant/appellant who filed written statement. He
R.S.A.No. 191 of 1996 3
admitted execution of the agreement. Defendant also
admitted that he received a sum of Rs.30,000/- by way of
earnest money. He issued a notice dated 29.8.1986 to
the plaintiff requesting him to reach the office of the Sub
Registrar for getting the sale deed executed and
registered for an amount of Rs.2,50,000/- as per terms of
the agreement. On 1.9.1986 he went to the office of the
Sub Registrar, but the plaintiff did not turn up. 31.8.1986
was a holiday, therefore, defendant went to the office of
the Sub Registrar on 1.9.1986. The defendant waited for
the plaintiff till evening. So much so, defendant made an
application in the office of the Sub Registrar, Dera Bassi
for marking his presence. The presence of the defendant
was marked. Aftter marking his presence, application
was returned to the defendant. Plaintiff never cared to
get copy of the jamabandi from the Patwari and plaintiff
did not serve any notice upon the defendant nor sent any
draft of the proposed sale deed. Defendant was never
called upon by the plaintiff to execute the sale deed. The
plaintiff did not have requisite fund for stamps and money
for registration fee. He committed breach of the
agreement. Plaintiff was not ready and willing to perform
his part of the contract and under these circumstances,
his earnest money stood forfeited. Time was the essence
R.S.A.No. 191 of 1996 4of the contract and it was known to the plaintiff. Plaintiff
failed to perform his part of the contract. He is not
entitled to pay decree for specific performance. Plaintiff
has got forfeited his money. Defendant has suffered
damages. Defendant wanted to purchase some land.
Price of the land which he wanted to purchase from
Shamsher Singh son of Kaka Singh had increased and
defendant incurred a loss of Rs.60,000/- due to non-
performance of the agreement by the plaintiff.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether defendant has committed the breach
of the agreement dated 28.2.1986? OPP
2. Whether the plaintiff has always remained
ready and willing to perform his part of the contract? OPP
3. Whether the time was the essence of the
contract? If so its effect? OPD
4. If issue No.1 and 2 are proved, whether the
plaintiff is entitled to the relief of specific performance of
the contract of sale? If so on what terms? OPP
5. Whether in the alternative the plaintiff is
entitled to claim Rs.2,50,000/- as alleged? OPP
6. Whether the suit is barred by delay and
laches? If so its effect? OPD
R.S.A.No. 191 of 1996 5
7. Relief. “
The substantial question of law that arises in this case
is ” whether both the Courts below had failed to appreciate the
evidence on record and the finding of the Courts below to the effect
that the plaintiff was always ready and willing to perform his part of
the contract was perverse?”
Learned counsel for the appellant has submitted that the
Courts below had erred in decreeing the suit of the plaintiff for
specific performance as he had failed to establish that he was ready
and willing to perform his part of the contract.
Learned counsel for the respondent, on the other hand,
has argued that both the Courts below, after appreciating the
evidence on record, had rightly come to the conclusion that the
plaintiff was ready and willing to perform his part of the contract as
time was not the essence of the contract. The suit had been filed by
the plaintiff within the period of limitation seeking specific
performance of the agreement to sell.
The execution of the agreement to sell in question is not
in dispute in this case. The case of the appellant rather is that the
plaintiff was not ready and willing to perform his part of the contract,
whereas, he had remained present in the office of Sub Registrar on
the stipulated date fixed for execution of the sale deed but the
plaintiff had failed to appear. Hence, the controversy involved in this
appeal is narrowed down to the extent as to whether the plaintiff was
R.S.A.No. 191 of 1996 6
ready and willing to perform his part of the contract. In this regard
material evidence on record has been ignored by the Courts below.
Ex.D-4 is the relevant document in this regard vide which the
appellant had got marked his presence in the office of Sub Registrar
on 1.9.1986 as 31.8.1986, the date fixed for execution of the sale
deed was Sunday. This shows that the appellant was ready to
execute the sale deed in favour of the plaintiff. However, the plaintiff
has failed to establish that on the date fixed for execution of the sale
deed, he was present in the office of Sub Registrar. Hence, the
findings of the Courts below that the plaintiff was always ready and
willing to perform his part of the contract are perverse and against
the evidence on record.
Accordingly, the substantial question of law that arises in
this appeal stands answered in affirmative.
Consequently, this appeal is allowed. The suit of the
plaintiff for specific performance of the agreement to sell in question
is dismissed. However, the suit of the plaintiff in the alternative for
recovery of the earnest money of Rs.2,50,000/- is decreed. No order
as to costs.
(SABINA)
JUDGE
August 17, 2009
anita