High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 14 14 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 113 RSA-2201-2018 (O&M) Date of decision: 15.01.2025 ...Appellant(s) ...Respondent(s) Vijay Singh & h & Another Manik Ram & & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- cate Mr.Ajay Ghangas, Advocate for the appellants. NIDHI GUPTA, PTA, J. *** The defendant is in seco urt second appeal before this Court challenging th g the concurrent findings returned by ned by the Courts below whereby the suit filed led by the respondent/plaintiff for ific for possession by way of specific performance ce of Agreement to Sell date ith dated 10.06.2010, along with consequential ntial relief of permanent injunction, he ion, has been decreed by both the learned Courts urts below. 2. The parties shall hereinaft eir inafter be referred to as per their status before t ore the learned trial Court. 3. Brief facts as averred by th he y the respondents-plaintiffs in the plaint are tha that appellants-defendants Vijay S of jay Singh and Sudesh resident of village Rewal wali have represented themselve in selves that they are owners in possession of n of land situated in the area of ict of Village Patti Kalyana, District Panipat and ag agreed to sell 04 Kanal of land be M d being 2/5 share out of 09K-19 M of land situat tuated in the Revenue Area of Vil nd f Village Patti Kalyana Tehsil and District Panipa nipat comprised in Khewat No.1104 ct. 1104/1069, Khatoni no.1155, Rect. SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) No.39, Killa No la No.2/2/1(3-19), Khewat No.2117/ Page 2 of 14 14 (cid:1) ct. 117/2048, Khatoni No.2205, Rect. No.32, Killa N la No. 21/2(0-10), 22/2/2(2-9), Re 1), , Rect. No.39, Killa No.2/1. (3-1), Kittas 3 again gainst total sale consideration of R nd of Rs.40,50,000/-. Vijay Singh and Sudesh had e ad entered into an agreement to
Legal Reasoning
ide t to sell with the plaintiffs vide agreement da t dated 10.06.2010. At that time a aid e a sum of Rs.8,00,000/- was paid to them as as earnest money out of the of the total sale consideration of Rs.40,50,000/ 00/-. A separate receipt has also ith also been executed along with agreement an t and the same was signed by both an both of them as well as Jai Karan
Legal Reasoning
son of Shri Ma i Mahabir and Manoj son of Mahind ms hinder as Witnesses. As per terms and condition tions of this agreement to sell sale on sale deed was to be executed on 09.12.2010 on 0 on receipt of balance sale consid lly nsideration. It was also mutually agreed that in at in the event of refusal on the he the part of the defendants, the plaintiffs shal shall have a right to get this agr ed agreement specifically enforced through the c he court of Law and in the event he ent of failure on the part of the plaintiffs, the the earnest money of Rs.8,00,0 of 00,000/ - given at the time of execution of t of the agreement would stand forf lly forfeited. It was further mutually agreed that s at successor in interest/ legal he all l heirs of both the parties shall remain bound ound by the terms and conditions he tions of this agreement and the owner shall n all not create any sort of encumbr till mbrances over the suit lands till execution and and registration of the sale dee be deed. The sale deed was to be executed on p on payment of expenses of stamp es mp duty and registration charges by the plaintif intiffs. The plaintiffs have been willi eir willing and ready to perform their part of contra ntract and has been tendering bala he balance sale consideration to the SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) defendants, bu ts, but for the reasons best known t Page 3 of 14 14 (cid:1) d 2 n to them defendants no.1 and 2 did not come ome forward to perform their par ed part of agreement to sell dated 10.06.2010. T 0. The plaintiffs were present wit nt with remaining balance amount along with the the expenses of execution and re on d registration of the sale deed on 09.12.2010. Th 0. The plaintiffs kept on waiting for he for the defendants to come in the office of Sub ub Registrar, Samalkha on 09.12.2 up 12.2010 but they did not turn up and plaintiffs tiffs got an affidavit attested to th ive to this effect from the Executive Magistrate Sa e Samalkha on 09.12.2010. The pla ice plaintiffs received a legal notice on behalf of th of the defendants through advocat nd ocate regarding the execution and registration of n of sale deed within a period of 15 his of 15 days from the receipt of this notice and re d reply of the same has been sen gh sent to their advocate through Registered AD AD on 05.01.2011 and it was req are requested that the plaintiffs are still ready and and willing to perform their par ed part of agreement to sell dated 10.06.2010. Th 0. The plaintiffs again served a lega on legal notice to the defendants on 22.04.2012 wi 2 with the request to get the sale ed ale deed executed and registered in favour of th of the plaintiffs within a period of 3 his of 30 days from the receipt of this notice with in intimation to the plaintiffs. Repl by Reply to said notice was given by the defendant dants on 31.05.2011 through their ad their advocate in which they had clearly mentio ntioned that necessary permission ors ion to sell the share of the minors has been obt obtained vide order dated 15.04.2 me .04.2008 and requested to come present in the the office of Sub-Registrar, Samalk rm malkha on 01.07.2011 to perform their part of ag of agreement for execution and reg ter registration of the sale deed after paying the ba balance sale consideration. It has on has been further averred that on SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) 01.07.2011, th 1, the plaintiffs remained present Page 4 of 14 14 (cid:1) ar, ent in the office of Sub-Registrar, Samalkha alon alongwith necessary expenses for of for execution and registration of the sale deed eed and balance sale consideration. wn ion. The plaintiffs have withdrawn necessary stam stamp papers of Rs.1,12,500/- on iffs on the same date. The plaintiffs again served a ed a legal notice to the defendants est ants on 28.03.2012 with a request to get the sa e sale deed executed and register iffs istered in favour of the plaintiffs within a perio period of 30 days from the receip er eceipt of this notice and further requested to to intimate the plaintiffs reg regarding nd the execution and registration of n of the sale deed as per the conve ut nvenience of the defendants. But the defendan dants failed to perform their part ed part of agreement to sell dated 10.06.2010 in 0 intentionally and knowingly. It h at It has been further averred that the plaintiffs iffs again sent a reminder to the 12 the defendants dated 07.05.2012 with the req request to come present on 25 nd 25.05.2012 for execution and registration of n of the sale deed after receiving b ut ng balance sale consideration. But the defendant dants did not appear, and the plaint to laintiffs got an affidavit attested to this effect from from the Executive Magistrate, Sam ce, , Samalkha on 25.05.2012. Hence, the present su t suit. 4. Upon notice, the appellan nd ellants/defendants appeared and filed written s en statement contesting the suit on sis it on various grounds. On the basis of the pleadin adings of the parties, following issue ssues were framed: - “(i) Whether the plaintiff is read his ready and willing to perform his part of the agreement to sell date dated 10.06.2017? OPP (ii) If the issue no.1 is proved, whe to , whether the plaintiff is entitled to specific performance of the agree 10 greement to sell dated 10.06.2010 SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) and consequential relief of perm Page 5 of 14 14 (cid:1) ed permanent injunction, as prayed for? OPP fo (iii) Whether the suit is not main m? maintainable in the present form? OPD (iv) Whether plaintiff has no caus ent cause of action to file the present suit? OPD (v) Relief.” 5. On the basis of oral a al and documentary evidence adduced by th y the parties, the learned Civil Jud il Judge, Junior Division, Panipat decreed the su e suit of the plaintiff vide judgment ent dated 29.11.2014. 6. The appellants filed Civil A vil Appeal No.136 of 2014 before the learned Ad d Additional District Judge, Panipat ipat; wherein vide judgment and decree dated ted 23.08.2017, the judgment of of the learned trial Court was affirmed. 7. Learned counsel r for the appellants-defendants vehemently su ly submits that from the record of t of the case, it is patent that the appellants we were ready and willing to execute t ute the Sale Deed. It is submitted that the lear learned Courts below have inco incorrectly concluded that the defendants did s did not come forward to perform orm their part of the Agreement to Sell dated 1 ted 10.06.2010. It is submitted tha that it is proven on record that the defendant dants had come present in the offic office of Sub-Registrar, Samalkha on 01.07.2011 011 for execution of the Sale Deed. eed. This is evident from the fact that the defe defendants had admittedly purch urchased stamp paper for an amount of Rs f Rs.10/- which is proven from th the testimony of DW3/Stamp SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) Vendor, who w ho was examined by the defendant dants. It is also admitted fact on record that th at the defendants had gone to th o the Tehsil on 01.07.2011 and Page 6 of 14 14 (cid:1) executed the the Affidavit. In fact, it is the plain laintiffs who did not turn up to perform their heir part of the contract along with with balance sale consideration. Moreover, the , the Courts below have failed to co o consider that the plaintiffs had totally failed led to prove the Agreement to S to Sell dated 10.06.2010 as no independent w nt witness has been examined to d to prove the Agreement. It is contended tha that the findings of both the Cou Courts below on various issues are against th t the facts and law and based on on assumptions, presumptions and non-appli pplication of judicious mind and a d are not based on cogent and reliable evide vidence and thus, findings of both both the Courts below are not sustainable in e in the eyes of law and liable to be be set aside. 8. No other argument is raised on behalf of the is appellants. 9. I have heard learned cou counsel for the appellants and perused the ca e case file in great detail. 10. At the very outset, it ma t may be pointed out that the present appea ppeal pertains to the year 2018. Ho . However, notice of motion has not yet been een issued as the matter has be s been adjourned due to non- appearance o e of learned counsel for the app appellants on 17.12.2019 and 05.03.2020. Th 0. Thereafter, the appeal was dismi ismissed for non-prosecution on 21.04.2023. E 3. Even after restoration of the m e matter on 31.08.2023, it was SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) adjourned at r at request of learned counsel for th or the appellants on 11.09.2023, Page 7 of 14 14 (cid:1) and 20.03.202 .2024 and due to non-appearance ce on 26.09.2024. 11. On merits, the Agreeme ement in question/Ex. P-1 is admitted. It It is the case of the appellants/ nts/defendants that they were always ready a dy and willing to perform their par part of the contract. It has been submitted tha that it is for this reason that the he the defendant was present in the office of of Sub-Registrar on the mutu utually agreed upon date of 01.07.2011 to 1 to perform their part for executio cution of Sale Deed. In support, learned couns unsel has referred to the testimony ony of DW3/Stamp Vendor who had issued sta stamp paper for Rs.10/- on which t ich the defendants had tendered Affidavit Ex.DW x.DW3/A. 12. A perusal of the entire rec record reveals that it is only on the basis of th of this Affidavit Ex.DW3/A that the d he defendants are asserting that they were pre present in the Tehsil on 1.7.2011, in 1, indicating their readiness and willingness to s to perform the agreement in que question. However, the same is not convincin incing as admittedly, the said A id Affidavit was not attested. Moreover, it w it was executed on stamp paper per of only ₹10; and it has also been admitted itted by learned Counsel for the d he defendants before this Court that even pre presence of the defendants was n as not marked in the Tehsil on 1.7.2011. 13. On the other hand, the the plaintiffs have proved their presence in th in the Tehsil on 1.7.2011 on the bas basis of cogent evidence in the SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) Page 8 of 14 14 (cid:1) form of the he stamp papers purchased by t y them for an amount of Rs. 1,12,500/-, wh , which are on record as Ex. PW/1/2 /1/2/8. 14. In fact, the record is reple replete with evidence indicating that at no stag stage did the defendants exhibit th it their readiness and willingness to execute th e the Sale Deed or perform the c he contract. In this regard, the findings of the f the learned trial Court as recorded rded in Para 13 of the judgment dated 29.11.20 1.2014 are imperative, and which re ich reads as under: - “13. Perusal of the file shows th ws that it is admitted fact that agreement to sell dated 10.06.2 .06.2010 was entered between parties for the total sale conside sideration of Rs.40,50,000/- out of which the sum of Rs.8 lacs w cs was paid to defendant no.1 Vijay Singh and defendants no.2 S o.2 Sudesh as earnest money. In this regard plaintiff has tendered ered the Ex. P1 which is alleged agreement to sell. On the said a aid agreement the signatures of Vijay Singh, Sudesh Devi, Manik R nik Ram and Rohit were present. Signatures of two witnesses Jai K Jai Karan and Manoj were also there. The receipt regarding earn earnest money of Rs.8 lacs was written on the same date whic which is Ex.P2. As per the said agreement the date for execution ution of sale deed was fixed on 09.12.2010. But on that date ate only the affidavit of the plaintiffs Manik Ram and Rohit w hit which his Ex.P3 is placed on file which is the affidavit of atte fil attendance in the office of Sub h Registrar, Samalkha which is attested by Executive i Magistrate, Samalkha. In this reg is regard defendants have taken the plea that on 09.12.2010 p 10 plaintiffs are not ready for registration and execution of th f the sale deed due to lack of remaining sale consideration and and this fact was also informed by the plaintiffs to the defend fendants. Further in his cross- examination defendant no.1 has s has stated that they went to the SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) Page 9 of 14 14 (cid:1) Tehsil on 09.12.2010 for execution ution of sale deed but when this fact was told by plaintiffs to them fa them then the plaintiffs sought the time of one week and the def e defendants came back without marking there presence n the Tehsil. Thereafter, the in th defendants again sent the legal n gal notice to the plaintiffs dated 20.12.2010 for execution and reg d registration of the agreement dated 10.06.2010 but in that not t notice which is Ex. P4 no such version is written by the defend efendants. It is the duty of the defendants that if they went to t to Tehsil on 09.12.2010 then they got their presence marked rked before the Sub Registrar, Samalkha and mere oral version sion that they were also present on that day does not hold any v ny value. Meaning thereby that on the fixed date i.e. 09.12.201 2.2010 plaintiffs are ready and willing to execute and registe gister the sale deed but the defendants have failed to prov proved to show that they are also ready and willing on that day t day. Further, in the reply dated 05.01.2011 to the legal notice otice of the defendants dated 20.12.2010 plaintiffs have mentio entioned that it has been orally settled between the parties t es that before execution and registration of the sale deed eed defendants were obtained necessary permission from the c he competent court to alienate the share of the minors. In thi n this regard defendants while giving the reply to the legal no l notice of the plaintiffs dated 22.04.2011 in Ex.P11 have stat stated that they have already obtained the permission to sell th ell the share of the minors from the court of Sh. Jagjit Singh, the th the then Civil Judge (Sr. Division), Panipat vide order dated 15.04.20 04.2008 Meaning thereby that at the time of the entering the ag e agreement to sell defendants have not disclosed this fact to the o the plaintiffs neither they have mentioned this fact in the agr agreement dated 10.06.2010. Since, it is admitted fact on the the part of the defendants that SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) Page 10 of 14 14 (cid:1) they have obtained the permissio ission from the Court for selling the share of the minors therefo erefore the plea of the learned counsel for the defendants that t hat the interest of the minors is attached to the agreement to se to sell and the same cannot be enforced does not hold any value value. Further, after giving legal notice and reply to each other, 0 er, 01.07.2011 was fixed by the defendants to get execute and re nd registered the sale deed after paying the balance sale conside nsideration. On that date also plaintiffs went to the Tehsil and p and purchased the stamp papers of Rs. 1,12,500/-, which are Ex. Ex. PW/1/2/8 and on the said date defendants have also got th ot their presence marked in the Tehsil and in this regard the they have tendered affidavit Ex.DW3/A. If both the parties ties were present in the Tehsil Complex on 01.07.2011 then no re no reason is given that why they have not met with each other or er or why the sale deed was not executed on the said date. Whe When the agreement to sell is admitted on the part of the both both the parties then the aspect whether the parties are ready a dy and willing to perform their part of agreement is to be se e seen. Further, it is also not necessary that the buyer are pr e present with money and this aspect is to be proved by party arty who wants to enforce the specific perform of the contract. F act. Further, it is not essential for the plaintiffs to tender the defen efendants or to deposit to court any money except when they ar ey are directed by the Court in contract which involves the paym payment of money. Keeping in view this fact plaintiffs have ve showed his readiness and willingness to perform their par r part of agreement by getting marked their presence in the Te e Tehsil on 09.12.2010 i.e date fixed for executing and registering fix ering the sale deed.” SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) 15. From the above facts, it is it is clear that initially the target Page 11 of 14 14 (cid:1) date set by by the parties and agreed upon upon between the parties for execution of S of Sale Deed was 09.12.2010. Plain laintiffs had duly placed on their record Affidav fidavit (Ex.P3) to prove their atten ttendance in the office of Sub- Registrar, Sam Samalkha which was also atteste ested by Executing Magistrate, Samalkha. On . On the other hand, it has been adm admitted by the defendant No.1 in his cross-ex examination that presence of the the defendants was not marked sil. in the Tehsil. 16. It further remains undis ndisputed on record that the permission to n to alienate shares of the defend endants who were minors, was granted as far s far back as in 2008. However, ther there was no writing in the Sale Deed dated 1 d 10.06.2010 to this effect; and o nd on the contrary it has been found that the t the defendants had prevaricated a ed and delayed the execution of the Sale Deed eed on the ground that permissio ssion had yet to be obtained to sell the share o are of the minors. 17. It has further been found und that on 01.07.2011 also the plaintiffs had had purchased stamp papers of R of Rs.1,12,500/- (Ex.PW/1/2/8); whereas altho although the defendants have ma marked their presence in the Tehsil on 01.0 01.07.2011 vide their Affidavit (Ex.D Ex.DW3/A), however, admittedly said Affidavit w vit was not attested. Moreover, the , there is no explanation given as to why, when hen both the parties were present in nt in the Tehsil on the said date, why was the S the Sale Deed not executed. Accord cordingly, even in appeal as the defendants w ts were unable to give satisfacto factory evidence proving their SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) Page 12 of 14 14 (cid:1) readiness and and willingness, the learned First A st Appellate Court has observed as under: - “23. So far as the readiness and and willingness of the parties to the suit to perform their part of t t of the agreement is concerned, as reflected in agreement to sell E sell Ex.P1, sale deed was agreed to be executed and registered o ed on 09.12.2010. Respondents no.1 and 2-plaintiffs have placed laced on file affidavit Ex.P3 duly attested by Executive Magistr gistrate Samalkha 09.12.2010 wherein they have deposed t ed that on 09.12.2010, they remained present in the Office of ce of Sub Registrar, Samalkha to ered get the sale deed registered in their favour but the defendants/vendors did not turn turn up. Affidavit Ex.P3 has been duly proved by PW3 Ramesh eshwar, Reader to Tehsildar Samalkha who has identified t ed the signatures of the then Executive Magistrate, Samalkha o kha on affidavit Ex.P3. But there is no evidence on file on behalf o alf of the appellants-defendants no.1 and 2 to prove that they w ey were present in the office of Sub Registrar, Samalkha on 09.12 09.12.2010 to perform their part of the agreement. It is an adm admitted fact that appellants- defendants. and performa respo espondent no.3-defendant no.4 served legal notice Ex.P4/Ex.D3 up D3 upon respondents no.1 and 2- plaintiffs alleging that they rema emained present in the Office of Sub Registrar, Samalkha on 09.1 09.12.2010 but the respondents no.1 and 2-plaintiffs did not turn turn up to perform their part of the agreement. Vide said notice otice, respondents no.1 and 2- plaintiffs were called upon to get get the sale deed executed and registered in their favour within ithin 15 days of the receipt of notice. Said notice was replied b ied by Shri R.S.Jaglan, Advocate on behalf of the respondents no. s no.1 and 2-plaintiffs vide reply dated 05.01.2011 Ex.P5. Appellan ellants-defendants no.1 and 2 in SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) Page 13 of 14 14 (cid:1) their reply dated 31.05.2011 E 1 Ex.P11 to the notice dated 22.04.2011 of the respondents nts no.1 and 2-plaintiffs called upon them to come present in t t in the Office of Sub Registrar, Samalkha on 01.07.2011 to p to perform their part of the agreement after payment of the f the balance sale consideration. Appellants-defendants no.1 and and 2 have placed on file affidavit Ex.DW3/A showing thei their presence in the Office of Sub Registrar, Samalkha on 01.0 01.07.2011 but the said Badle affidavit is neither attested by by the Executive Magistrate, Samalkha nor by any Notary tary or Oath Commissioner. Therefore, such self-serving docu document can not be taken into consideration whereas on the ot e other side, respondents. no.1 and 2-plaintiffs have placed on fi on file stamp papers Ex. PW2/1 to Ex.PW2/8 worth Rs.1,12,500/ 500/- purchased on 01.07.2011. Thus, the purchase of the said st id stamp papers further goes to prove that on 01.07.2011, respon espondents no.1 and 2-plaintiffs were ready and willing to get t et the sale deed executed and registered in their favour. Admi Admittedly, stamp papers were purchased by one Sachin but it do it does not make any difference as to who has purchased the stam stamp papers. The stamp papers have been purchased in the name ame of Manik Ram (respondent- plaintiff no.1). It is also correct t ect that the stamp papers were purchased for the registration of t n of the sale deed for an amount of Rs.22,50,000/- whereas the sa he sale consideration of the suit land was Rs.40,50,000/- as reflec eflected in agreement Ex.P1. It is a matter of common knowledg ledge that the sale deeds are registered as per the circle rate rate of the district whereas the sale consideration mentioned in th in the agreement to sell used to be the agreed sale price of the la he land between the parties. No evidence has been brought o t on file by the appellants- defendants no.1 and 2 to pro prove that the stamp papers SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1) Page 14 of 14 14 (cid:1) Ex.PW2/1 to Ex. PW2/8 were were meant for some other transaction. Thus, the purchase o ase of the said stamp papers on 01.07.2011 further makes it clea clear that the respondents no.1 and 2-plaintiffs were ready and w nd willing to perform their part of the agreement.” 18. Learned counsel for the ap e appellants is unable to dispute or controver vert the above said evidence, nce, or give any satisfactory explanation fo n for the same. 19. 20.
Decision
In view of the above, prese resent appeal is dismissed. Pending application(s) if an if any also stand(s) disposed of. 15.01.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.21 18:00 I attest to the accuracy and integrity of this document (cid:1)