High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 10 10 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 253 yam Radhey Shyam Bansi Lal RSA-14989-2018 (O&M) Date of decision: 07.02.2025 Vs. ...Appellant(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- dvocate for Mr. Anil Kumar Saini, Advoc cate Mr. Varun Gupta, Advocate for the appellant. Mr. Jayant Yadav, Advocate Mr. P.R. Yadav, Advocate for the respondent. cate for NIDHI GUPTA, PTA, J. *** The defendant is in second appeal against the concurrent jud t judgment and decrees of the lea learned Courts below whereby the suit filed filed by the respondent/plaintiff f iff for specific performance of Agreement to t to Sell dated 03.12.2010, has be s been decreed by the learned Additional Civ l Civil Judge (Sr. Division) Narnaul naul vide judgment and decree dated 23.02.2 02.2015. The appeal filed by the d he defendant against the above said judgment ent dated 23.02.2015, has been d en dismissed by the learned 1st Appellate Cou Court, vide judgment and decree da e dated 04.05.2018. 2. The parties shall hereinafte nafter be referred to as per their status before t ore the learned trial Court i.e. the a
Legal Reasoning
he appellant as “defendant” and the responden dent as “plaintiff”. SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) 3. Brief facts of the case a e are thatthe present suit for Page 2 of 10 10 (cid:1) specific perfo erformance was filed by the r e respondent/plaintiff on the averments tha s that on 3.12.2010 the defendant ant entered into agreement to sell his 800/69 0/6983th share in the suit property erty fully described in para no.1 of the plaint laint in favour of the plaintiff fo ff for a sale consideration of Rs.20,00,000/ 00/- and received an amount o nt of Rs.9,05,000/- as earnest money. It is n is next maintained that the date fo e for execution of the sale deed was fixed as as 8.4.2011. The terms of the ag agreement were reduced into writing and th d the writing was duly signed by th y the parties in the presence of attesting witn witnesses. It is further asserted tha that the possession of the suit property was as also delivered to the plaintiff on ff on the date of the execution of the agreemen ment to sell. It is also stated th d that the plaintiff has always been ready an y and willing to perform his pa part of the contract and he remained pres present in the office of sub-registr gistrar, on the stipulated day for execution of t of the sale deed i.e. 8.4.2011 along longwith the amount of balance sale considera deration and other expenses. How owever, the defendant did not appear. Thus, hus, the plaintiff got his presenc sence marked before the Sub- registrar, Nan Nangal Chaudhary. It is also stated ted that the plaintiff sent a legal notice dated 1 ed 15.4.2011 to the defendant and and requested the defendant to execute the s he sale deed of the suit property rty in favour of the plaintiff on 25.4.2011. It i . It is further pleaded that the lega legal notice was received by the defendant bu t but he did not appear in the off office of Sub-Registrar, Nangal Chaudhary on y on 25.4.2011 for execution of th f the sale deed. Therefore, the SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) Page 3 of 10 10 (cid:1) plaintiff got h ot his presence marked before the the Executive Magistrate. It is next maintaine tained that the plaintiff sent anothe other legal notice dated 3.5.2011 to the defenda endant requesting him to execute t te the sale deed in favour of the plaintiff on 9 n 9.5.2011. However, the defend fendant evaded the service of notice. It is fu is further asserted that the plaint laintiff remained present in the office of Sub ub-Registrar, Nangal Chaudhary on y on 9.5.2011 but the defendant did not appear pear. Hence, the present suit. 4. Upon notice the app appellant-defendant put in appearance an e and contested the suit on various ious grounds by denying that the defendant had had executed any Agreement to S to Sell in favour of the plaintiff; that the Agree greement was a result of fraud and and misrepresentation; that the defendant is is not bound by the same; it w it was denied that the physical possession of n of the suit property was delivered red to the plaintiff on the day of execution of A of Agreement to Sell. It was further ther denied that the plaintiff had proved his re is readiness and willingness to p o perform the Agreement. No replication wa was filed by the plaintiff. 5. On the basis of pleading dings of the parties, following issues were re framed by the learned tria trial Court vide order dated - 08.02.2012:- “1. Whether defendantexecuted uted agreement to sell dated 3.12.2010 in favour of plaintiff qu ff qua the suit property? OPP 2. Whether the plaintiff has pai s paid Rs.9 lacs 5 thousand on 3.12.2010 out of total sale conside nsideration of Rs.20 lacs? OPP. 3. Whether plaintiff is/was ready eady and willing to perform the part of the contract? OPP. SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) Page 4 of 10 10 (cid:1) 4. If the above issues are to be o be proved whether plaintiff is entitled to the contract on the t the terms and conditions of the agreement to sell dated 3.12.2010 .2010? OPP. 5. Whether suit of plaintiff is not m not maintainable? OPD 6. Whether plaintiff has no cause ause of action to file the present suit? OPD. 7. Whether the suit of the plaintiff intiff is time barred OPD 8. Whether plaintiff has filed false false and frivolous suit? OPD 9. Relief.” 6. On the basis of the ple pleadings, and the oral and documentary ary evidence adduced by the part parties, the learned trial Court decreed the the suit with costs vide judgment and decree dated judg 23.02.2015.Th The appeal filed by the defend endant against the above said judgment dat dated 23.02.2015, has been dis dismissed by the learned 1st Appellate Cou Court, vide judgment and decree d ee dated 04.05.2018. Hence, the present secon cond appeal. 7. Learned counsel for for the appellant-defendant vehemently su ly submits that the plaintiff had fail failed to establish his readiness and willingnes gness to perform the contract. The The defendant has categorically disputed the r he receipt of legal notice. Even no f no finding has been given by the learned trial C ial Court regarding Issue No.3. Thu Thus, the plaintiff has failed to prove his case case on Issue No.3 which is core ore issue of the suit.In support learned coun ounsel relies on judgment of H of Hon’ble Supreme Court in “Sukhwinder der Singh vs. Jagroop Singh and and another” Law Finder Doc ID#1673443 43 and “Ravi Setia vs. Madan Lal a Lal and others” Law Finder Doc 40. ID#1597440. SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) 8. It is next contended that hat the defendant never affixed Page 5 of 10 10 (cid:1) his signatures ures on the Agreement dated 03.12 3.12.2010 and the signatures of the defendant dant have been taken by the plaint laintiff fraudulently. It is alleged that thus, the the Agreement is the result of fraud raud and misrepresentation. It is categorically d lly denied that the defendant signe igned the Agreement to Sell. It is accordingly pr ly prayed that the present appeal be l be allowed. 9.
Legal Reasoning
Per contra learned counsel nsel for the plaintiff vehemently opposes the p he prayer made on behalf of the def defendant and submits that the plaintiff had d ad duly demonstrated his readiness iness and willingness to perform the contract. act. It is denied that the Agreeme ement is a result of fraud and misrepresenta entation. It is accordingly prayed ed that the present appeal be dismissed. 10. 11. No other argument is made ade on behalf of the parties. I have heard learned co counsel for the parties and perused the ca e case file in great detail. 12. A two-fold argumenthas b as been raised on behalf of the appellant/defe defendant. First being that the pla plaintiff has failed to prove his case on Issue sue No.3 which is the core issue of e of the suit i.e. the plaintiff has failed to esta establish his readiness and willingn llingness to perform his part of contract. I find find no merit in the said argument ent as the record amply testifies to the readine diness and willingness of the plaintif intiff to perform the contract. 13. As per the Agreement to S to Sell dated 03.12.2010 (Ex.P1) the date for e or execution of sale deed was fixe fixed as 08.04.2011. The record SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) Page 6 of 10 10 (cid:1) irrevocably es y establishes that the plaintiff was as present in the office of Sub- Registrar Nan Nangal Chaudhary on the said dat date for execution of the sale deed. This fac fact is proved from the affidavit o vit of the plaintiff (Ex.PW3/B). It was the defen efendant who was not present. 14. Thereafter, the plaintiff tiff sent a legal notice dated 15.04.2011to 1to the defendant whereby th the next target date was 25.04.2011. O On this date also the defendant nt did not appear. Another legal notice dated 0 ed 05.05.2011 was sent to the appe appellant and a fresh target date 09.05.2011 wa 1 was fixed. The appellant did not not appear on this date as well. Subsequent t nt to this target date the respon spondent-plaintiff filed suit for specific perfor rformance on dated 23.05.2011. 15. In regard to the above said said legal notices, the testimony of PW7-Rajesh ajesh Kumar, Advocate is relevant w nt who has deposed that he had sent legal not notice (Ex.PW7/A) dated 15.04.20 4.2011 to the defendant on the asking of the p he plaintiff. PW7 has further depose posed that he had sent reminder legal notice d ce dated 05.05.2011 (Ex.PW7/B). B). Both the said legal notices were duly pro proved by the postal receipts (Ex (Ex.PW7/C and Ex.PW7/D) and registered env envelope vide which second legal n gal notice was received unserved as (Ex.PW7/E) 7/E). Thus, the contention of the the defendant that he did not receive the leg e legal notices is belied by the evide vidence of PW7. 16. Learned counsel for the the defendant can derive no benefit from om the relied upon judgment in t in case of Sukhwinder Singh (Supra) as the the same is distinguishable on fact facts and law inasmuch as in the SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) said case the the plaintiff therein had not submi bmitted his affidavit proving his presence in th in the office of Sub-Registrar on t on the stipulated date. Learned counsel can al n also not derive any benefit from rom the relied upon case of Ravi Page 7 of 10 10 (cid:1) Setia (supra) ra) as the same is distinguishable o le on facts inasmuch in the said case the plain laintiff had sought to establish his his readiness and willingness on the basis of of a certificate produced by the them from the Sub-Registrar. Whereas, in in the present case the plaint laintiff had produced affidavit (Ex.PW3/B) w ) which cannot be likened to a ce certificate. Further in the said case no othe other evidence was led by the p e plaintiff to demonstrate his readiness and and willingness, including showing ing his continuous capacity for discharge of th of the balance consideration. In the the present case that is not so. The plaintiff iff here had duly paid the earnest nest money of ₹9,05,000/–; and has also depo eposited the balance sale conside sideration of Rs.20,00,000/- on 28.12.2018 be 8 before the Civil Judge (Sr. Divisio ivision) Narnaul. As such in the present case ase the plaintiff has amply demo emonstrated his readiness and willingness to s to perform the contract. The fin e findings of the learned lower Appellate Cou Court in this regard are as under:- “…So far as the readiness and w concerned on the date fixed for th i.e. 8.4.2011 the plaintiff appear and marked his presence by w Pursuant to his legal notice the pl of Sub Registrar on 25.4:2011 affidavits Ex.PW3/C and Ex.PW3D nothing to show that defendant w registrar on the said dates. The p plaintiff promptly thereafter on 23 nd willingness of the plaintiff is for the execution of the sale deed peared before the Sub Registrar by way of affidavit Ex.PW3B. he plaintiff also visited the office 2011 and 9.5.2011 as per his W3D. On the other hand there is ant was also present before Sub The present suit was filed by the on 23.5.2011. Learned trial court SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) has correctly held that readiness of plaintiff is duly proved…” ness and willingness on the part Page 8 of 10 10 (cid:1) 17. It has next been argued on d on behalf of the appellant that the Agreeme ment to Sell dated 03.12.2010 10 (Ex.P1) does not bear his signatures. Th This argument of the defendant is nt is also liable to be rejected as no such plea lea has been taken by the defen efendant heretofore before the learned Cour ourts below. I have gone throu hrough the written statement (available at P at Page 137 of the LCR) filed by the the appellant before the learned trial Court in m in minute detail. There is no plead leading therein to the effect that the signature ure on the Agreement to Sell was n as not of the appellant. In fact, even in the pre e present Grounds of Appeal no suc such plea has been taken by the appellant. Mo Most importantly the defendant d nt during cross-examination has himself admitt mitted his signatures on Agreemen ment to Sell (Ex.P1). As such, the defendant has has been unable to dispute the Agr Agreement. 18. Even the contention of the f the appellant to the effect that the agreemen ment in question was result of fra f fraud and misrepresentation is rejected on a n account of the findings and ob d observations recorded by the learned 1st Ap Appellate Court in para 8 of the im e impugned judgment and order dated 04.05.2 05.2018 that “…defendant is drun drunkard and if the agreement bears the sign signature of the defendant the sam e same were obtained by fraud. However, I do n I do not agree with the said contenti tention. There is nothing to show that when the the agreement was executed the de he defendant was drunk or not in his senses. M s. Merely by the bald averments nts of the defendant it is not SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) established th d that his signatures were fraudul udulently obtained on the said Page 9 of 10 10 (cid:1) agreement…”. t…”. In fact, on the said agreeme ement itself the defendant has himself writte ritten about the receipt of the earne arnest money of Rs.9,05,000/-. 19. Further, the agreement in t in question stood duly proven from the evide vidence of PW1-Jagmal and PW2- -Ali Sher who are the attesting witnesses of t of the Agreement to Sell. The said said witnesses had categorically stated during ring their cross-examination that at the defendant entered into Agreement to t to Sell (Ex.P1) in favour of plaint laintiff for sale consideration of Rs.20 lacs and and had received an amount of Rs Rs.9,05,000/- as earnest money. It was further her deposed by the said witnesses t ses that the date for execution of sale deed w was fixed as 08.04.2011 and nd the defendant signed the Agreement to t to Sell after understanding and a nd accepting the contents to be correct. PW5 W5-Vikas Gujar Advocate who is scr s scribe of the Agreement to Sell deposed that t hat the same was prepared on the i he instructions of the parties. As already notice oticed above the defendant has a as admitted the receipt of the earnest mone oney; and has himself written abou about the receipt of the same in the Agreemen ment to Sell. Further the signature tures on the agreement to sell regarding taki taking of earnest money were also p lso proved. In para No. 14 of the judgment of t of the Ld. Trial Court, it is record corded that the defendant has identified his s his signatures over the agreement ent to sell which proves that the said agreemen ment was entered into by him. The The ld. First Appellate court has further record corded that "The said argument als t also does not hold any ground as on the agre agreement itself the defendant ha t has himself written about the SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) receipt of the the earnest money of Rs.9,05,000/ 000/." As such the execution of Page 10 of 10 10 (cid:1) the Agreemen ment to Sell (Ex.P1), and the read readiness and willingness of the plaintiff to per perform the said Agreement, is we well-established. 20. Before parting it may be p e pointed out that while issuing notice of moti otion on 09.05.2019 following orde order was passed:- “Learned counsel for the appella submits that the appellant is rea paying the earnest money along settled as the suit land is the on appellant. Notice of motion to this extent on Till the next date of hearing, part status quo regarding possession shall not be deemed as extende hearing.” pellant, after arguing at length, is ready to settle the dispute by along with interest/damages as e only source of income of the t only for 21.08.2019. parties are directed to maintain ssion over the suit land, which ended beyond the next date of 21. Thereafter, till date the m he matter has been adjourned largely due to e to non-appearance of the appell pellant, or on request made on behalf of lear learned counsel for the appellant lant on 17.02.2023, 07.10.2023, 19.12.2023, 14 , 14.05.2024 and 21.10.2024. 22.
Decision
In view of the above discu iscussion, the present appeal is dismissed. 23. Pending application(s) if an if any also stand(s) disposed of. 07.02.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1)