Darshan Singh vs Surjit Kaur

M. Jeyapaul, J.

C.M. No. 4073-C of 2014

Heard.

The application is allowed and the applicant is permitted to make good the deficiency in Court fee.

C.M. No. 4074-C of 2014

The application is dismissed as infructuous, as the main appeal has been heard and disposed of today.

RSA No. 1668 of 2014

The unsuccessful 1st defendant Darshan Singh has preferred the present appeal aggrieved by the decree for specific performance passed by the trial Court and confirmed by the First Appellate Court.

It is the case of the plaintiff/1st respondent that 1st defendant/appellant who was owner of the suit property executed an agreement for sale on 11.8.2005 in favour of the plaintiff/1st respondent agreeing to sell the suit property for a total consideration of Rs. 4,38,000/- having received an earnest an money of Rupees One lac. The sale deed was to be executed on or before 15.9.2005. Alleging that the 1st defendant failed to appear before the Registrar either on 19.9.2005 or on 10.10.2005 as per the request made by the plaintiff in the pre suit notice but the plaintiff was ready and willing to perform her part of the contract.

The 1st defendant contended in his written statement that the agreement for sale dated 11.8.2005 was obtained by the plaintiff from the 1st defendant by misrepresenting the facts. Having received a sum of Rs. 1 lac from the plaintiff, the 1st defendant entered into an agreement for sale. The 1st defendant contended that the plaintiff was not ready and willing to perform her part of the contract whereas the 1st defendant was present throughout the day on 19.9.2005 in the office of the Sub Registrar, Dera Bassi.

Both the Courts below having thoroughly adverted to the evidence on record came to the conclusion that the agreement for sale was executed by the 1st defendant in favour of the plaintiff, on receipt of earnest money of Rs. 1 lac. The Courts below also found that the 1st defendant was not ready and willing to perform his part of the contract, whereas the plaintiff was ready and willing to perform her part of the contract.

The learned counsel appearing for the 1st defendant/appellant would submit that the plaintiff failed to establish that she was ready and willing to perform her part of the contract on 19.9.2005 as there was no affidavit sworn to by the plaintiff in the presence of the Registrar on that day. The learned counsel would also submit that more than 21/2 years have elapsed from the date of execution of the sale deed, therefore, the plaintiff should be directed at least to pay the market value of the property.

There is no dispute to the fact that agreement for sale was executed by the 1st defendant in favour of the plaintiff on 15.9.2005. The plaintiff has established her presence at the Registrar office on 19.9.2005 in connection with the execution of a separate agreement Ex. P3 and a sale deed Ex. P4 by examining PW4 Jyoti Sarup, an attesting witness to those documents. Though the 1st defendant had contended that he was present in the office of Sub Registrar, Dera Bassi on 19.9.2005, no documentary proof was forthcoming to establish his presence on that day. The plaintiff gave an ultimatum in the pre suit notice for execution of the sale deed by the 1st defendant in favour of the plaintiff on 10.10.2005. The plaintiff established her presence by producing the affidavit Ex. P7 which speaks of her presence in the Registrar''s office. It is an admitted position that the 1st defendant did not turn up at the office of the Sub Registrar, Dera Bassi on 10.10.2005.

In view of the above, I find that both the Courts below have rightly come to a conclusion that the plaintiff is entitled to get the sale deed executed from the 1st defendant.

The learned counsel appearing for the appellant refer to a decision of the Hon''ble Supreme Court in Satya Jain (D) Thr. L.Rs. and Others Vs. Anis Ahmed Rushdie (D) Thr. L.Rs. and Others, wherein it has been held as follows:-

The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part, to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final court. Having given our anxious consideration to all the relevant aspects of the case we are of the view that the ends of justice would require this Court to intervene and set aside the findings and conclusions recorded by the High Court of Delhi in Anis Ahmed Rushdie v. Bhiku Ram Jain and to decree the suit of the plaintiffs for specific performance of the agreement dated 22.12.1970. We are of the further view that the sale deed that will now have to be executed by the defendants in favour of the plaintiffs will be for the market price of the suit property as on the date of the present order. As no material, whatsoever is available to enable us to make a correct assessment of the market value of the suit property as on date we request the learned trial Judge of the High Court of Delhi to undertake the said exercise with such expedition as may be possible in the prevailing facts and circumstances.

That was a case where a judgment of reversal was before the Hon''ble Supreme Court. By the time the litigation reached finality, 42 years had elapsed. Further, the plaintiff therein also offered to pay the market price. In my considered view, the above factual scenario does not exist in the case at hand. Therefore, the above observations of the Hon''ble Supreme Court do not apply to the case in hand.

There is no substantial question of law that has arisen for determination. There is no merit in the appeal. Therefore, the appeal stands dismissed.