Hill View Co-operative Housing Society Ltd @APPELLANT@Hash Varinder Kumar

Sureshwar Thakur, J.

The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for

rendition, of, a decree for specific performance of contract of sale, was, hence decreed.

Briefly stated the facts of the case are that the land measuring 0-17076 sq. meters as detailed iin the plaint, is, owned by defendant No.1 society.

ON 15. 6.1989, the society through its General Secretary Rakesh Sharma, entered into an agreement to sell the suit land to the plaintiff for

consideration of Rs.24,000/-. The plaintiff paid Rs.7,000/- in advance as earnest money and promised to pay the remaining amount of Rs.17,000/-

before Sub Registrar, Una, at the time of registration of sale deed. The defendant agreed to execute and register the sale deed before 31.8.1989 after

the attestation of mutation in the name of society. As per agreement, it was agreed that in case the defendant failed to get the sale deed registered

within the stipulated period, then the plaintiff shall be entitled to refund of Rs.7,000/-, as earnest money plus Rs.7,000/- on account of damages. On

11.8.1989, the plaintiff asked the defendant to get the sale deed registered as per terms of aforesaid agreement, but the defendant told that the

mutation was not yet sanctioned, and, the sale deed will be executed and registered before 10.11.1989.

A writing to this effect was executed at the back of agreement dated 31.8.1989. Thereafter, the plaintiff again approached the defendant for the

purpose of execution of sale deed in his favour but he was again told that mutation was not sanctioned as yet, and sought extension of time upto

15.1.1990, and, a writing to this effect was executed on 10.11.1989. Then on 15.1.1990, the plaintiff again approached the defendant for the said

purpose, but the defendant again extended time of sale deed upto 15.4.1990 on the plea that the mutation had not been sanctioned in favour of the

society. On 16.4.1990, the plaintiff again approached the defendant for execution and registration of sale deed, but the defendant again came with the

same excuse. AT that time the plaintiff was having deed dated 10.11.1989 with him, but the same was taken from him by the defendant on the pretext

of extension of time, and thereafter the defendant with malafide intention torn the same, and, refused to execute the sale deed.

Thereafter, the plaintiff approached Sh. Hazari Lal, Advocate, Una along with Piare Lal and told him about the incident, who called defendant No.2,

and, at his intervention the defendant agreed to execute and get registered the sale deed on 23.4.1990. Then the plaintiff again came to Una on

23.4.1990 alongwith balance sale consideration of Rs.17,000/- but the defendant did not turn up. It has now come to the notice of the plaintiff that the

mutation had already been sanctioned in favour of the defendant on 14.12.1989 and despite that the defendant is not ready to execute the sale deed in

his favour. The plaintiff is ready and willing to perform his part of the contract and to get the sale deed executed and registered in terms of agreement

in question after payment of Rs.17,000/- as balance sale consideration to the defendant, but the defendant has refused to do so. Hence the suit.

The defendants contested the suit and filed written statement, wherein, it/he has taken preliminary objections inter alia maintainability, locus standi,

cause of action, etc. On merits, It is alleged by the defendant that the plaintiff became the member of the society by purchasing a share on 19.6.1989,

and thereafter he transferred his share to one Sh. Vijay Avtar Sigh on

12.1989, and, ceased to be the member of the society. His membership came to an end on 7.12.1989, and, he is only the past member of the

society. The defendants have not denied the execution of agreement of 10. 11.1989, but they alleged that neither any period was extended on

15.1.1990, as alleged by the plaintiff nor any such endorsement was made on the back of document of 10.11.1989 The mutation of the suit land of the

society was sanctioned on 14.12.1989 along with other land and thereafter, the defendant asked the plaintiff so many times to get the sale deed

executed in his favour, but he was reluctant and showed his inability due to lack of money. On 15.1.1990, the sale deed could not be executed as the

plaintiff did not turn up to the office of Sub Registrar, Una, though the defendant remained present there upto 5 P.M. After that the Secretary of the

Society informed the Managing Committee about non-execution of the sale deed as per agreement due to absence of plaintiff on 15.1.1990 and the

earnest money of the plaintiff was forfeited by the Managing Committee as per terms of agreement, and, now the plaintiff has no locus standi to file

the present suit as he has not performed his part of contract. It is further alleged that since the plaintiff has failed to perform his part of contract within

the stipulated period, no question of readiness and willingness to perform his part of contract after the expiry of the date of execution of sale deed,

does not arise at all. It is further alleged that this Court has no jurisdiction to try the present suit as the same is barred under Section 72 of the H.P.

Cooperative Societies Act, 1978 nor the plaintiff can institute a suit without serving a two months notice on the Registrar as required under Section 76

of the H.P. Cooperative Societies Act, 1968.

On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-

Whether the plaintiff has locus standi to file the suit?OPP.

Whether this court has no jurisdiction to try the suit? OPD

Whether the plaintiff was required to issue notice under Section 76 of the H.P. Co-operative Society Act, as alleged?OPD.

Whether the suit is bad for mis joinder of defendant No.2?OPD.

Whether the plaintiff was and is willing to perform his part of the agreement?OPP.

Relief.

On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an

appeal, preferred therefrom by the defendant/appellant herein before the learned First Appellate Court, the latter Court dismissed the appeal, and,

affirmed the findings recorded by the learned trial Court.

Now the defendant/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein, it assails the findings, recorded in

its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 7.1.2009, admitted the

appeal instituted by the defendant/appellant, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter

extracted substantial questions of law:-

Whether the civil court has jurisdiction to decide the matter since appellant is a Coop. Housing Society registered under the H.P. Coop. Society Act

and rules in vie of Section 72 and as per section 76, no suit shall lie against the appellant without issuing the notice to society and before its expiry of

two months?

Whether the suit can be decreed in favour of the plaintiff without proving the readiness and willingness to perform his part of contract?

Substantial questions of Law No.1 and 2:

The parties at contest do not wrangle, over the factum qua, the contract of sale, vis-a-vis, the suit land, as, embodied in Ex.P-1, being cogently

proven to be validly and duly executed, inter se the contesting litigants. The imperative covenanted condition precedent for facilitating the execution,

of, a registered deed of conveyance, vis-a-vis, the suit khasra numbers, is, comprised in, (a) upon, occurrence, of, attestation of mutation, vis-a-vis, suit

khasra number qua the defendant, and, reinteratedly thereupon, the parties at contest being obliged to execute a registered deed of conveyance, vis-a-

vis, the suit khasra numbers. (b) The afore condition precedent, for hence the contract of sale, being put, to, completest apt satisfaction by the

executants thereof, rather stood satiated on 14.12.1989, thereupon, the parties at contest were enjoined to mete deference to the afore apt covenant,

borne in the contract of sale. The defendant contends (c) that immediately, upon, satiation being meted, vis-a-vis, the afore condition precedent, the

plaintiff was obliged to execute, the, apt registered deed of conveyance, vis-a-vis, the suit khasra numbers, whereas, his breaching his part of the apt

covenanted obligation, he has hence evinced his unreadiness, and, unwillingness to perform his part of, the, apt contractual obligation, and, hence, he is

defacilitated (i) to seek rendition of a decree for specific performance of contract of sale; (ii) his being disentitled to seek restoration of the forfeited

amount of earnest money, comprised in a sum of Rs.7000/-.

The afore contention would hold vigour, only upon, (iii) evidence being adduced qua the plaintiff being aware of hence compliance being meted, vis-a-

vis, the afore condition precedent, evidence whereof may have been comprised, qua his, being provenly awakened qua hence in making(s) thereof,

emergence whereof would occur, upon, his evidently visiting the office, of, the revenue officer concerned; (iv) AND/or his being provenly intimated,

by, the defendants qua its making. The aforesaid evidence, is, grossly amiss hereat. Consequently, given the aforesaid condition precedent standing

evidently satiated, yet mere satiation thereof, cannot marshal, an inference qua the plaintiff hence breaching the apt contractual obligation, cast upon

him, under the contract of sale. Furthermore, it cannot also be inferred qua the plaintiff hence evincing his unreadiness and unwillingness, to perform

his part, of, the contractual obligation, (v) more so, when defendant No.2, in his cross-examination, rather acquiesces to a suggestion qua prior to the

execution of contract of sale, the defendant purchasing land, from, the plaintiff, and, the apt sale consideration thereof, comprised in a sum of

Rs.41,000/-, being in simultaneity thereof, hence, standing liquidated qua him. Reinforcingly, rather a conclusion erupts therefrom qua the plaintiff being

financially empowered to liquidate the balance sale consideration to the defendant, and, obviously also qua hence his being ready and willing to

perform his part, of, the apt contractual obligation. The further seuqel thereof, is that when rather the defendant, had, breached, its, part of the

contractual obligation, thereupon, it being not entitled to forfeit, the, earnest money.

Be that as it may, a further espousal rather stands reared before this Court by the counsel, for, the aggrieved defendant/appellant, qua, (i) the

stipulation borne in the apt contract of sale, whereunder, upon, breach of the contractual obligation, cast upon the defendant, the latter being entitled

only for double of the amount of earnest money, whereas, his being not entitled to the primary relief, of, specific performance of contract. However,

the aforesaid submission, is infirm, given, it being settled in a catena of decisions (ii) qua it being incumbent, upon, this Court, to render, the, primary

decree for specific performance, of contract of sale, unless, the aforesaid sum adequately recompenses the plaintiff. Since, no evidence in consonance

therewith stands adduced, thereupon, it is concluded that both the learned Courts below, did not, mis-maneuverer in law, rather in decreeing the

primary relief of specific performance, of, contract of sale, vis-a-vis, the suit kahsra number, and, qua the plaintiff.

The learned counsel appearing for the plaintiff also has contended, that, with the statutory provisions, as, encapsulated in Section 76 of the H.P. Co-

operative Societies Act (hereinafter referred to as the Act), provisions whereof stand extracted hereinafer:-

“76. Notice necessary in suits.- No suit shall be instituted against a society or any its officers in respect of any act touching the constitution,

management or the business of the society, until the expiration of two months after notice in writing has been delivered to the Registrar or left at his

office stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall

contain a statement that such notice has been so delivered or left.â€​

(i) rather creating a statutory bar against the institution, of, suits against the society and its officers “in respect of any act touching the constitution,

management of the business of the society, unless, and, until the expiration of two months', after, notice in writing has been delivered to the Registrar

or left at his officeâ€, and, with the afore initial imperative condition rather standing ex-facie proven hereat, and, thereupon, the exception thereto,

couched in the statutory phrase, “unless two months' notice being served upon the Registrar concernedâ€​, rather enjoined adduction, of, evidence in

satiation thereof, (ii) whereas, the aforesaid exception remaining not proven hence, the suit entailing the fate, of, dismissal.

However, the aforesaid submission cannot be accepted,(a) as, given even if assumingly, no statutory notice, within the ambit of the statutory

exception, standing not served upon the authority/officer concerned, yet want thereof, rather being inconsequential, (b) given satiation thereof being

imperative, only upon, the, suit evidently containing a subject matter “in respect of any act touching the constitution, management or the business of

the societyâ€​. (c) In aftermath, the defendant was enjoined to adduce proof, that, in the drawing, of, the apt contract of sale, the officer, who on behalf

of the society executed, it, with the plaintiff, his colluding or conniving with the plaintiff, (d) or despite the fact that qua the plaintiff continuing to be the

member of the society, hence, his executing the contract of sale qua any immovable property of the society, (e) obviously whereupon, his attracting

culpability, vis-a-vis, embezzlement or mismanagement, of, the property of the society. However, when evidently at the relevant stage, the plaintiff

was not a member of the society, and, with the defendant not adducing any cogent evidence, with, any candid display therein qua (a) the

officer/official nominated by it, to, execute the contract of sale with the plaintiff rather not holding the apt bestowal/authorization; (b) or in the

execution of the contract of sale, grave prejudice being visited, vis-a-vis, the assets of the society. Consequently, for want of, adduction, of, the afore

evidence, vis-a-vis, the afore expostulations, (c) thereupon, it is inevitably rather concluded qua the execution of the contract of sale, in respect

whereof rendition of a decree for specific performance of contract, is, claimed, rather not appertaining, to, hence any act touching, the constitution,

management or the business of the society, and, thereafter no contention hence being rearable by the defendant, that, it being imperative for the

plaintiff, to, prior to the institution of the suit, serve a two months' notice in writing, upon, the officer concerned.

The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based,

upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned

trial Court, have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour

of the respondent/plaintiff, and, against the appellant/defendant.

In view of the above discussion, there is no merit in the present Regular Second Appeal and it is dismissed accordingly. In sequel, the judgements

and decrees, rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications

also stand disposed of. No order as to costs.