RSA-4949- -2019 (O&M) -1- IN THE HIG HIGH COURT OF PUNJAB AND HA D v. 2. RSA-3938-2019
Case Details
RSA-4949- -2019 (O&M) -1- IN THE HIG HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 109 1. RSA-4949-2019 (O&M) RS Shivjot Deve t Developers and Builders Ltd. .… Appellant Singh Sarup Singh .... Respondent Versus 2. RSA-3938-2019 (O&M) RS Shivjot Deve t Developers and Builders Ltd. .… Appellant Singh Sarup Singh .... Respondent Versus Date of Decision: 17.01.2025 Date o CORAM: H M: HON'BLE MS. JUSTICE NIDH NIDHI GUPTA Present: - Mr. Munish Kumar Garg, Advo , Advocate for the appellant. NIDHI GUP I GUPTA, J. (ORAL) 1. The plaintiff is in second app ying d appeal before this Court laying challenge to nge to the judgment and decree dat the ee dated 17.8.2015 passed by the learnedTrial dTrial Court whereby decree for speci ned, specific performance was declined, but refund o fund of earnest money was ordered; an ated and judgment and decree dated 5.3.2019 pas 19 passed by the ld. 1st Appellate Cou nest te Court, whereby refund of earnest money was s was set aside; and thus praying for de for decretal of the suit in toto. 2. By way of this common judg ned n judgment the 02 aforementioned appeals are b
Decision
ls are being disposed of, as both appea mon appeals have arisen out of common impugned ju ned judgments of both the Courts b trial urts below dated 17.08.2015 (trial Court) and 0 and 05.03.2019 (1st Appellate Court) lved ourt) and similar facts are involved therein. For b . For brevity, the facts are being extra extracted from RSA-4949-2019. RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -2- 3. The parties shall hereinafter be atus fter be referred to as per their status before the le the learned trial Court i.e. the appell the appellant is being referred to as the plaintiff whe ff whereas the respondent as defendan fendant. 4. Brief facts of the case are that th t for that the plaintiff had filed a suit for joint possess ossession as owner by way of specific nt to pecific performance of agreement to sell dated 03 ted 03.08.2005 and 19.09.2005 regar ring regarding the suit land measuring 16 kanals-4¾ 4¾ marlas as described in the hea suit he head note of the plaint; And suit for permane rmanent injunction restraining the def and he defendant, its agent servants and representativ entative from selling, mortgaging, tr any ing, transferring alienating in any manner the l r the land as described in the second econd head note of the plaint; And directing the ng the defendant to execute the sale d ntiff sale deed in favour of the plaintiff or his no is nominee for Rs.17,97,65,600/ ,600/- after of the adjustment of Rs.23,96,000 ,96,000/- given as earnest money to th had y to the defendant. The plaintiff had exhibited his ted his readiness and willingness to pe s to perform his part of contract. 5. The facts as set out in the pla and the plaint are that the plaintiff and defendant en ant entered into agreement on 03.0 land 08.2005 for sale of joint land measuring 1 ring 16 kanals 4¾ marlas as fully des f the lly described in the head note of the plaint situate situated in the revenue estate of vill 182, of village Aujla Hadhbast No 182, Tehsil Khara Kharar Distt. SAS Nagar. The rate as and rate as settled between plaintiff and the defendan fendant initially was ₹93,50,000 per eeds 0 per acre. In total six sale deeds were agreed greed to be executed with regard to th een d to this land. It was agreed between the parties arties that plaintiff would obtain th rom ain the requisite permission from PUDA/Town /Town Planner Department and for t ould d for the purpose Defendant would furnish a con h a consent deed in favour of plaintiff, pply intiff, for enabling plaintiff to apply to PUDA/To DA/Town Planner Department for o sion for obtaining requisite permission RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -3- with respect espect to this land for building an i t to g an infrastructure with respect to developing r ping residential colony. A total amou paid l amount of ₹ 23,96,000/- was paid by plaintiff intiff towards the earnest money. The sold The total land agreed to be sold was equally qually divided into six parts in order t an order to affect six sale deeds at an interval of al of four months each. Subsequen ated equently a fresh agreement dated 19.9.2005 w 05 was executed between defendant ich, endant and plaintiff through which, the basic ter sic terms and conditions as incorporat nt to rporated in the earlier agreement to sell dated 3.8 ted 3.8.2005 were retained. However, ent wever, substitution in the agreement dated 19.9. 19.9.2005 were made and the rate of d at rate of land was mutually agreed at ₹88,50,000 p ,000 per acre, as it came to notice t sold tice that this land agreed to be sold through earl h earlier agreement to sell dated 3 the ated 3.8.2005, was not within the Municipal L ipal Limit of Municipal Council, Kha the l, Kharar. The date for effecting the first register egistered sale deed would be within a rom ithin a period of four months, from the date the the Govt. issues necessary notifi land notification for bringing the land within the M the Municipal of Municipal Council, rms uncil, Kharar. The rest of the terms and conditio onditions of earlier agreement to se kept to sell dated 3.8.2005 were kept intact. The s The substituted/amended agreement to s the ment to sell dated 3.8.2005 bears the signature of ure of the defendant as well as the si ntiff the signature on behalf of plaintiff and other ma her marginal witnesses. The notificatio t. of tification was issued by the Govt. of Punjab on 20 on 20.2.2006. Plaintiff on the basis o d by basis of ‘consent deed’ furnished by the defenda efendant applied to Chief Town for wn Planner Govt. of Punjab for obtaining re ing required technical clearance of th with e of the building plans. Along with the said app id application, plaintiff also appended hich pended the letter of consent which had been pr een prepared as per Section (2) (a) o and ) (a) of the Punjab Apartment and Property R Regulation Act 1995 for a total 58 But tal 58 kanals 7 marlas of land. But RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -4- in actual def al defendant had not handed over the p suit er the physical possession of the suit land. Baldev dev Singh who is also a co-shar and sharer has already executed and registered sa red sale deed measuring 8 Kanal in fa 06 l in favour of plaintiff on 25.5.2006 vide vasika asika No 845 with respect to his excl ving is exclusive holding, after receiving the full sale ll sale consideration money. The actua also actual physical possession has also been handed handed over to plaintiff by Baldev S land dev Singh with respect to his land holding on e g on execution of the registered sale h in sale deed by said Baldev Singh in favour of pla of plaintiff. Earlier there were variou the various correspondence between the defendant an ant and plaintiff. Keeping all these ance these correspondences in abeyance and in view view of the fact that sufficient tim the ent time has already lost after the issuance of t ce of the notification by the Govt. of ugh vt. of Punjab on 20.2.2006 through which the la the land agreed to be sold by the def ntiff the defendant, in favour of plaintiff has come wi within the municipal limits of Mun istt. of Municipal Council, Kharar, Distt. Mohali. Plai Plaintiff in order to assert its bonaf dant bonafide called upon the defendant that he is r is ready to execute the sale deed the deed in its favour regarding the remaining la ing land. Plaintiff further asserted t ntire rted that it is ready with the entire sale consider nsideration money and is willing to ex eed g to execute the registered sale deed for the rema remaining land. Plaintiff has neither the either ever intended to prolong the execution of tion of the registered sale deed in its s in its favour any further, nor it is ever interest nterested in any delay and time-cons rt of consuming litigations in court of law, in the l n the larger interest of itself, as well a ntiff well as the defendant. The plaintiff intends to b s to build up the requisite infrastruct has astructure on the land. Plaintiff has already suff y suffered enormous loss and dama y in damages for the undue delay in execution of tion of registered sale deed in its favo ed a ts favour. The plaintiff has served a legal notice notice dated 17.5.2007 upon the de e of the defendant for the purpose of RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -5- execution th tion the registered sale deed on 4.7.20 4.7.2007 in favour of plaintiff. The plaintiff also ff also remained present in the off hsil he office of Sub Registrar Tehsil Complex on lex on 20.6.2007 and 20.2.2008. It is has . It is pleaded that the plaintiff has been throug throughout ready and willing and ev g to nd even now ready and willing to perform his m his part of contract, but the contra e of contract has failed only because of fault on the n the part of the defendants. With t was With these pleadings, the suit was filed. 6. Upon notice, defendant/respo respondent herein had put in in appearance a rance and resisted the suit of the plaint plaintiff on various grounds. 7. The plaintiff had filed replicat ions eplication reiterating the assertions made in the in the plaint. 8. On the basis of the pleadings o sues ings of the parties, following issues were framed ramed by the learned trial Court: - “1. Whether tiff the plaintiff for? OPP injunction as prayed for is entitled nt for permanent 2. Whether the plaintiff is e owner by way of sp agreement to sell dated 0 the suit land as prayed fo 2a. Whether plaintiff compan and willing to perform th f is entitled for joint possession as as he the f specific performance of in ted 03.08.2005 and 19.09.2005 in ed for OPP dy pany has always remained ready m their part of contract? OPP 3. Whether the suit is not nt not maintainable in the present form? OPD 4. Whether the suit is bad fo ed ad for delay and laches as prayed for? OPD 5. Whether the plaintiff i conduct to file the presen nd iff is estopped by his act and esent suit? OPD 3. Relief.” 9. On the basis of oral and docum documentary evidence adduced by the parties, rties, the learned trial Court decided ecided issue Nos.1, 2 and 2A in RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -6- favour of the of the plaintiff and against the defen defendant; and issues No. 3 to 5 were not pr not pressed during the course of arg of arguments and as such those issues were were decided against the defendant an dant and in favour of the plaintiff. However, th , the learned trial Court decreed creed the suit of the plaintiff in alternative tive for refund of earnest/advanc dvance money to the tune of Rs.23,96,000 ,96,000/- with proportionate costs costs, while relief of specific performance mance and permanent injunction wa was denied. The learned trial Court also g also granted the plaintiff pre-instituti stitution, pendente lite and future interest @ 6% on the said amount from from the date of its advance till tion. realization. 10. The said judgment and decre decree dated 17.08.2015 of the learned trial d trial Court was challenged by both both the parties i.e. plaintiff and the defenda efendant by way of two separate a arate appeals before the learned Additional D onal District Judge, SAS Nagar (Mo ar (Mohali) bearing Civil Appeal No. RT-318 318/21.09.2015/18.08.2016 filed b iled by the defendant; and Civil Appeal No. l No. RT-271/24.09.2015/27.07.2016 .2016 filed by the appellant; and vide commo ommon judgment and decree dated 05 ted 05.03.2019, the appeal filed by the defendan fendant was allowed and the appeal appeal filed by the plaintiff was dismissed w sed while setting aside the relief of re f of recovery of earnest money to the plaintiff. intiff. Hence, the present second appe d appeals. 11. Learned counsel for the app e appellant-plaintiff, inter alia, submits that ts that both the agreements dated 3. ted 3.8.2005 and 19.9.2005 have been duly pr uly proven on record. Even readiness adiness and willingness on part of the plaintiff aintiff to perform the contract was pro as proven before the learned trial court. Desp Despite this the learned lower Ap er Appellate Court has erred in RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -7- drawing an an adverse inference against the pla the plaintiff as it is clear from the record that t that the plaintiff had appeared to ex to execute the sale deed and had therefore, e ore, exhibited his readiness and w and willingness to perform the contract. Mo Moreover, the plaintiff was happy happy with the refund of earnest money as gr as granted to it by the learned trial C trial Court. However, the learned lower Appel Appellate Court has set aside the mo he money decree in favour of the plaintiff only ff only on the ground that the plainti plaintiff had failed to demonstrate his readines adiness and willingness to perform h form his part of contract and the same is con is contrary to the evidence on record record. In holding as above, the learned lowe d lower Appellate Court has failed to iled to appreciate that the plaintiff had also sen so sent a notice to the defendant to co t to come to the Tehsil Office and it is the defe e defendant who had failed to put in ap ut in appearance. Accordingly, it is it prayed th ed that the judgment of the learned earned 1st Appellate Court be set aside. 12. 13. No other argument is raised on ed on behalf of the appellant. I have heard learned counsel fo nsel for the appellant and perused the case file se file in great detail. 14. The learned trial court vide vide judgment and decree dated 17.8.2015 had denied the relief of specific ecific performance and permanent injunction to tion to the plaintiff. The reasoning in ing in this regard is contained in para 19 of t 9 of the trial court judgment dated 1 ated 17.8.2015, to the effect that DW2 Direct Director of the plaintiff company ha ny had deposed that the plaintiff company wa ny was running short of funds becaus because of which sale deed could not be exec executed. It was further found tha nd that the contract between the parties could could not be concluded because of de e of default and breach committed RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -8- by plaintiff c intiff company. However, as payment yment of earnest money was found to have been e been made, the suit was decreed in ed in the alternative for refund of earnest/adva /advance money of ₹23,96,000/– – along with pre-institution, pendente lite e lite and future interest at the rate of rate of 6% on the said amount. 15. In appeal, vide the impugned gned judgment and decree dated 05.03.2019 2019 the learned lower Appellate ellate Court has dismissed the plaintiff’s su ff’s suit holding that the plaintiff was iff was not entitled to recovery of the earnest arnest money as he had failed to led to prove his readiness and willingness gness to perform his part of cont contract, despite the fact that defendant ha ant had sent a notice to the plaintiff to intiff to come present in the Tehsil Office on 24 on 24.07.2006. It was found that on hat on 24.7.2006, the plaintiff did not turn up rn up in the office of the Sub-Regis egistrar, whereas the defendant appeared in red in the Tehsil and got marked his ed his presence through Affidavit Ex. D-4; and ; and further held that from Ex. D1 x. D1 to D3 it was clear that the plaintiff was ff was not ready and willing to perfo perform his part of the contract. Learned App ed Appellate Court further returned th rned the finding that there was no evidence by ce by plaintiff to show that he was hav as having sufficient amount to get the sale deed le deed executed. Moreover, refund of nd of earnest money was declined on account o ount of a definite recital in the agreem agreement in question to the effect that failure ailure to execute the sale deed w eed would automatically entail cancellation lation and forfeiture of earnest mone money. The relevant findings of the learned I rned Ist Appellate Court are containe ntained in para-Nos. 17 and 18 of the impugne pugned judgment and Decree dated dated 5.3.2019, and the same are reproduced a uced as under:- “17. Now the question is w ready and willing to perform its is whether the respondent was m its part of the contract or not. RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -9- It is settled principle of law tha prove the readiness of a party contract but readiness and will the Court through the act and c other surrounding circumstan readiness and willingness, th placed on record affidavits Ex by the representatives of respo Magistrate on 20.06.2007 and this regard, a perusal of recor had issued a legal notice date upon the respondent to get the as per the terms and cond 03.08.2005. In reply to above sent a legal notice Ex.D2 whe addition to agreement dated 03 dated 19.09.2005 was executed per above agreement, the appe to respondent at the rate of ₹8 above legal notice, it was also also agreed that the appellant w favour of the respondent after f issuance of notification by the addition of the land of appella council, Kharar. In the above mentioned by the respondent already issued notice qua land respect of the land measuring appellant sent a rejoinder date respondent wherein it was st additional amount of ₹3,96,000 in the first sale deed whereas th of ₹20 lacs was to be adjusted there was no such conditio appellant also stated that the to 2 kanal – 14 marla comes ou which ₹3,96,000/- have alread additional amount and he is re after receiving 26,04,000/- fro stated that he is in dire need o deed executed from the person into an agreement to sell for these circumstances, without agreement dated 19.09.2005, h that mere filing of suit does not arty to perform his part of the willingness is to be inferred by nd conduct of a party as well as stances. In order to prove his s, the respondent has merely s Ex.P11/1 and Ex.P12/1 sworn respondent before the Executive and 22.02.2008 respectively. In record shows that the appellant dated 22.06.2006 Ex.D1 calling the sale deed executed from him onditions of agreement dated ove legal notice, the respondent herein it was averred that in d 03.08.2005, a new agreement uted between the parties and as appellant agreed to sell his land ₹88,50,000/- per acre. In the also mentioned that the parties ant will execute first sale deed in fter four months from the date of the government regarding the ellant in the limits of municipal bove legal notice, it was also dent that the government has land in dispute on 20.02.2006 in uring 2 Kanal 14 marlas. The dated 12.07.2006 Ex.D3 to the s stated that he has received ,000/- which was to be adjusted as the remaining earnest money sted in the last sale deed since dition in the agreement. The he total price of land measuring s out to be ₹30,05,285/- out of ready been received by him as is ready to execute the sale deed from the respondent. He also ed of money for getting the sale rsons with whom he has entered for purchasing land and under out admitting the execution of 5, he is ready to sell his land to RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -10- ₹88,50,000/- per acre. In the t also requested the respondent Tehsil Comlpex, Kharar on lance sale consideration for of first sale deed and it was also tice that in case, the respondent the above office on 24.07.2006, 05 and 19.09.2005 shall stand ey will be forfeited. Thereafter, nt did not turn up in the office of whereas the appellant appeared ot marked his presence through ocuments Ex.D1 to Ex.D3, it ent was not ready and willing to tract. He has not produced any establish that he was having he sale deed executed from the nd, the appellant has examined was Director of respondent and through whom the suit was the year 2008. Above witness e execution of agreement to sell could not be executed because and respondent company had no bove witness clearly shows that as not having sufficient funds to respondent at the rate of ₹88 above notice, the appellant als to come present in the Te 24.07.2006 alongwith balanc execution and registration of fir mentioned in the above notice failed to come present in the a agreement dated 03.08.2005 a cancelled and earnest money w on 24.7.2006, the respondent di the Sub Registrar, Kharar whe in the above office and got m affidavit Ex.D4. From docum becomes clear that respondent perform his part of the contrac evidence on record to estab sufficient amount to get the sa appellant. On the other hand, DW2 Jaiteg Singh, who wa company in the year 2005 and filed by the respondent in the clearly stated that after the exe in question, the sale deed cou there was slump in market and money. The statement of above the respondent company was n get the sale deed executed. presence of its representative 18. The respondent got pre e Executive Magistrate through marked in the office of the Ex 0.06.2007 and on 20.02.2008 affidavit Ex.P11/1 on 20.06 . As respondent failed to get the through affidavit Ex.P12/1. As 7.2006 i.e. the date fixed in the sale deed executed on 24.07.20 lant was not required to appear reminder Ex.D3, the appellant istrar either on 20.06.2007 or on in the office of the Sub Registra he express terms of agreement 20.02.2008 and in view the e 09.2005, above agreements got dated 03.08.2005 and 19.09.2 and the earnest money got automatically cancelled and d, the learned trial court has forfeited. On the one hand, t nt was not ready and willing to observed that the respondent w ontract, as such, the relief of perform its part of the contr ot granted to the respondent but specific performance was not g ef of recovery of earnest money on the other hand, the relief of spondent. As the respondent was has been granted to the respon rform its part of the contract, in not ready and willing to perfor RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -11- view of the express provisions 03.08.2005 and 19.09.2005, th to be forfeited. Moreover, in th not claimed the alternative reli was not competent to grant ab Reliance in this regard placed Singh Vs. Swaran Singh (supr others Vs. Mohinder Singh and ions of agreement to sell dated 5, the earnest money was liable in the plaint, the respondent has relief, so the learned trial court t above relief to the respondent. ced on cases titled as Surmukh (supra) and Harish Kumar and h and others (supra).” 16. Learned counsel for the plaintif laintiff has very candidly admitted before this C this Court that there were specific t cific terms and conditions in the agreements ents in question as per which failur failure to execute the sale deed would auto automatically entail cancellation ation and forfeiture of earnest money.Learn arned counsel for the appellant ellant-plaintiff is also unable to dispute or c e or controvert the above said evid d evidence/findings or give any satisfactory e tory explanation for the same. 17. In view of the above facts and irrefutable evidence on record, I fin , I find that there is no infirmity in t in the impugned judgment and decree dated dated 5.3.2019 passed by the learned arned 1st Appellate Court. 18. 19. 20. As such, the present appeals are s are dismissed. Pending application(s) if any als any also stand(s) disposed of. A photocopy of this order be er be placed on the file of other connected ca cted case. 2025 17.01.2025 rishu ( NIDHI GUPTA ) JUDGE Whether speaking/reasoned Yes/No Whether Reportable Yes/No RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment.