Dr. V.K. Chadha and Another vs Satnam Singh Dua and Another

Hemant Gupta, J.—Defendants No. 2 and 3 are in second appeal aggrieved against the judgment and decree passed by the learned First Appellate Court on 20.11.2004 arising out of a suit for specific performance of agreement dated 19.10.1993.

Vide the aforesaid agreement, defendant No. 1 agreed to sell House No,56/6 situated at Bhargo Camp, Jalandhar, for a sum of Rs. 45,000/- Rs. 10,000/- was paid as earnest money and the sale deed was to be executed on or before 20.10.2004 on receipt of the balance sale consideration. It is the case of the plaintiff that after the agreement, defendant No. 1 was involved in a murder case and there was no communication between the plaintiff and defendant No. 1 regarding the execution of agreement. He, however, remained present in the office of the Sub Registrar along with balance sale consideration and extra amount required for the purpose of registration of sale deed on the date fixed and also sent a notice on 21.10.1994 calling upon defendant No. 1 to perform his part of agreement but the same was received back unserved with remarks "addressee has left the place without address". Subsequently, it was found that defendants No. 2 and 3 proclaiming themselves as purchaser of suit property from defendant No. 1 and, thus, the plaintiff alleged that sale in favour of defendants No. 2 and 3 having been effected, after entering into agreement to sell in favour of the plaintiff, is not valid and that the plaintiff is entitled to a decree for specific performance.

2.1 Defendant No. 1 did not contest the suit. However, defendants No. 2 and 3 filed written statement. It was pointed out that defendant No. 3 has purchased the suit property vide registered sale deed dated 21.04.1995 from defendant No. 1 and is a bona fide purchaser for valuable consideration and without notice.

2.2 The defendants did not contest the suit thereafter. Issue No. 3 was to the effect whether defendant No. 3 is a bona fide purchaser for consideration. The learned trial Court decided the said issue against the defendant.

The learned trial Court also returned a finding that agreement to sell stands proved from the testimony of PW2 Bachan Singh and PW3 Gurcharan Singh, the marginal witness of the agreement to sell. After considering the statement of the plaintiff, who appeared as PW1, the learned trial Court found that the plaintiff was ready and willing to perform his part of the contract which is evident from the application dated 20.10.1994, Exhibit P-6, filed before the Sub Registrar. On the basis of said application, it was found that the plaintiff remained present in the office of Sub-Registrar. The plaintiff also proved notice dated 21.10.1994 calling upon defendant No. 1 to execute the sale deed. The said notice is Exhibit P-3, postal receipt and acknowledgement are Exhibits P-4 and P-5 respectively. However, the learned trial Court granted a decree for recovery of payment of earnest money against defendant No. 1 after returning a finding that the agreement stands proved.

In appeal by the plaintiff, learned First Appellate Court relied upon judgments of this Court reported as Ram Dass Vs. Ram Lubhaya, and Lt. Colonel Jaswant Singh (deceased by LR) Vs. Daljit Singh (deceased by LR) and Others, to return a finding that the plaintiff is entitled to the relief of specific performance of agreement to sell. It is the said decree which is challenged by defendants No. 2 and 3 before this Court.

Learned Counsel for the appellants has raised two fold arguments. Firstly, it is contended that the plaintiff has not led any evidence in respect of his readiness and willingness to perform his part of the contract and, secondly, the sale deed in favour of defendants No. 2 and 3 was executed on 21.04.1995 whereas suit for specific performance has been filed on 10.10.1997 and, thus, the plaintiff is not entitled to decree for specific performance as suit has been filed after gross delay. Reliance has been placed upon Most. Etwari Devi and Others Vs. Most. Parvati Devi, ; H.P. Pyarejan Vs. Dasappa (Dead) by LRs. and Others, and V. Muthusami by Lrs. Vs. Angammal and Others, .

I do not find any merit in any of the arguments raised by the learned Counsel for the appellants. The plaintiff in his examination-in-chief has deposed that he appeared before the Sub Registrar on 20.10.1994 to perform his part of the contract. In addition to the said statement in the Court, the plaintiff has produced an application filed before the Sub Registrar on the aforesaid date. The said application Exhibit P-6 is to show his presence before the Sub-Registrar. The plaintiff also produced noticed dated 21.10.1994, Exhibit P-3, calling upon the defendant to execute the sale deed. All these documents have been produced by the plaintiff in his own statement. It is, thus, evident that the plaintiff has led evidence in respect of his readiness and willingness to perform his part of the contract on 20.10.1994 i.e., the date fixed for execution of the sale deed.

Learned Counsel for the appellants further contended that the plaintiff has not deposed that he was always ready and willing to perform his part of the contract i.e., till the filing of the suit and thereafter when he appeared in the witness-box. The fact that the plaintiff has filed the suit for specific performance of the agreement to sell and that he appeared in the witness box to aver that he was ready and willing to perform his part of the contract is indicative of the fact that he was always ready and willing to preform his part of the contract. The readiness and willingness is a finding to be returned on the basis of entire evidence and is mere use of the word in the statement of the witness. The entire conduct of the plaintiff from the date of entering into agreement to sell; appearance before the Sub Registrar and the filing of the suit in the Court is indicative of the willingness and readiness of the plaintiff to perform his part of the contract, therefore, I do not find any merit in the argument of learned Counsel for the appellant.

The argument of learned Counsel for the appellants that the plaintiff has filed the suit for specific performance of agreement to sell after gross delay is again not tenable. The plaintiff has filed the suit for specific performance within the period of limitation. The defendants have not contested the suit. There is no plea of hardship raised in terms of Section 20 of the Specific Relief Act, 1963, which alone could be considered to decline the relief of specific performance of agreement.

In view of the above, I do not find any patent illegality or material irregularity in the judgment and decree passed by the learned First Appellate Court which may give rise to any substantial question of law for consideration of this Court in second appeal.

Dismissed.