Khem Chand vs Tika Ram

J.M. Malik, J.—The respondent filed a suit for specific performance which was decreed by the Trial Court and its finding was confirmed by

the Appellate Court. Aggrieved by those two judgments the instant second appeal has been preferred. The appellant agreed to sell property No.

1809, measuring 350 square yards situated in Panna Mamurpur, Narela, Delhi in favor of the respondent vide Agreement to Sell dated

18.07.1995 for a consideration of Rs. 2,00,000/-. Earnest money of Rs. 1,00,000/- was paid to the appellant by the respondent. It was stipulated

that the appellant would execute the Sale Deed within a period of 18 months. At the time of execution of Agreement to Sell the original Sale Deed

of the property and the vacant physical possession of the part of the property was handed over to the respondent by the appellant and the

appellant promised to hand over the possession of the remaining property at the time of receipt of balance payment of Rs. 1,00,000/- at the time of

execution of Sale Deed. The respondent kept on enquiring from the appellant regarding the sale permission and other formalities which were to be

completed by the appellant but the appellant put off the matter on one pretext or the other. Consequently, the respondent sent legal notice dated

15.01.1997 and intimated the appellant that balance amount of Rs. 1,00,000/- and registration fees were ready with him to execute the Sale Deed.

However, the legal notice did not ring the bell. The appellant did not take the trouble even to respond to the said notice. On 02.05.1998 the

respondent approached the appellant and requested him to execute the Sale Deed. The appellant replied that since the prices had gone high,

Therefore, he would return Rs. 1,00,000/-, already given to him and would sell the property at higher prices. Ultimately, the present suit was filed

on 15.07.1998.

The appellant listed the following defenses in his written statement. The respondent had failed to pay the remaining consideration amount of Rs.

1,00,000/- to the appellant within the agreed period and Therefore the earnest money given by him to the appellant was forfeited by the appellant

in the year 1996. Under these circumstances, the respondent had no right in the property in question. The appellant explained that he had

contacted the respondent within the agreed period of 18 months on many occasions, yet the respondent failed to pay the remaining consideration

amount to the appellant. The appellant also took the objection that the suit is barred by limitation.

I have heard the counsel for the appellant. It was urged by the learned Counsel for the appellant that no notice was served upon the appellant.

He explained that, although, copy of the notice purported to have been given by Surinder Kumar, Advocate on 15.01.1997 was placed on the

record, yet, it is not signed by him. Secondly, no AD card saw the light of the day. Moreover, Surinder Kumar, Advocate was not produced in the

dock to prove the notice for the reasons best known to the respondent.

These arguments carry no conviction. It must be borne in mind that copy of the notice is not required to be signed by the Advocate. Secondly,

respondent has proved on record that this notice was sent through Regd. AD and has produced Ex. PW1/C, which is the receipt issued by the

postal authority. There is presumption of law that the above said notice was served upon the appellant. This view is fortified by the judgment of this

Court reported in Vinod Khanna and Ors. v. Bk. Sachdev 1995 RLR 431, wherein it was held,

It is settled law by the decisions of Privy Council and Supreme Court that if a notice properly addressed is delivered to Post Office, then it must be

presumed that it was duly given. Presumption is greater when the notice is registered.

In addition the respondent has also served the notice through UPC and has proved UPC certificate as Ex. PW1/D. Counsel for the appellant

admitted that the address mentioned on the said certificate Ex. PW1/D is correct. Under these circumstances, it stands proved that the notice was

served upon the appellant.

Second limb of argument submitted by the learned Counsel for the appellant was that the time was essence as per the terms of agreement in this

case. The time came to an end on 17.01.1997.

I find no force in these arguments. The respondent had sent the notice on 15.01.1997 i.e. two days before the expiry of the dead line.

Thereafter, he had three years time to file the suit. He has averred that he was ready and willing to perform his part of agreement.

Secondly, it must be borne in mind that the prices of the land are sky rocketing in this cosmopolitan city. Every year there is increase in prices.

The Explanation given by the respondent that the appellant refused to execute the Sale Deed because the prices had gone very high appears to be

quite probable. It is well said that money is the biggest seed of strife in this world.

Thirdly, preliminary objection para No. 2 of the written statement is reproduced as follows:

That the plaintiff has not come with clean hands before the Hon''ble Court and has concealed the material facts that it was agreed in the

Ikrarnama dated 18.07.1995 that if the purchaser/plaintiff shall not pay the remaining consideration amount Rs. 1 lakh within agreed period 1-1/2

years, the earnest money/bayana shall be forfeited and the plaintiff/purchaser shall be no concern with the said house property - suit property.

Since the plaintiff could not pay the remaining consideration amount Rs. 1 lakh to the defendant within agreed period 1-1/2 agreed in the

Ikrarnama dated 18.07.1995, hence the earnest money has already been forfeited in 1996 the plaintiff have no concern with the suit property,

hence the suit of the plaintiff is liable to be dismissed on this sole ground.

After perusing this objection it is difficult to fathom as to how the appellant had already forfeited the earnest money in the year 1996 whereas the

period of 18 months was to lapse on 17.01.1997. The bizarre conduct of the appellant is difficult to comprehend. Moreover, no notice was given

to the respondent that the appellant was going to forfeit the earnest money. The appellant has not mentioned the date of the forfeiture of the above

said earnest amount.

Lastly, during the arguments the learned Counsel for the appellant vehemently argued that since he was ready to return Rs. 4,00,000/- to the

respondent the order of specific performance should not have been enforced against him.

It is very easy to cull out the intention of the appellant. This very fact goes to show that the appellant wants to get rid of this agreement at

whatsoever cost. This clearly means that the prices of the land must have gone very high.

The next submission made by the learned Counsel for the appellant was that his case stands covered by Section 20(2) Clause (a) & (b) of the

Specific Relief Act, which are reproduced hereunder:

(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the

contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance

would involve no such hardship on the plaintiff; or

(c) X X X

In order to bring his point home, he has cited authority of this Court reported in M.K. Sehgal(Sh.) v. Smt. Mohinder Kaur 2006 V AD (Del)

473, in this case it was held that discretion must be exercised within circumscribed limits of dos and don''t/s enumerated by legislature in Section

The learned Counsel for the appellant pointed out that as a matter of fact the appellant has got two adjoining properties - one measuring 350

square yards and second measuring 22 square yards. It was explained that, as a matter of fact, he had entered into agreement in respect of 22

square yards. The appellant is an illiterate villager, who, does not know Hindi language. He was not aware that he was signing the property

measuring 350 square yards. He was under the impression that he was selling property measuring 22 square yards. He argued that under these

circumstances the present case is fully covered within the ambit of Section 20(2) Clause (a) & (b).

I have perused the agreement Ex. PW1/A. It clearly goes to show that the agreement was scribed by Om Prakash Sharma, Vasika Nawis,

Sonepat and was witnessed by Sube Singh Lamberdar, Nagalkala Tehsil, Sonepat and Rishi Parkash, Aurangabad. It is clear that the appellant

thumb marked the agreement with open eyes in presence of two witnesses and a scribe. Moreover there is no word or syllable in this regard in the

pleadings. These arguments and pleas raised by the learned Counsel for the appellant swing and oscillate from one extreme to another. The plea

set up for the first time at the time of argument appears to be an after thought and is not to be considered.

Last submission made by the learned Counsel for the appellant was that as per agreement the appellant is liable to pay the penalty of Rs.

4,00,000/- only and he cannot be forced to part with the possession of the plot by way of decree passed by the courts below.

The learned Counsel for the appellant kept on veering from the main topic. In view of authorities reported in P.D.''Souza v. Shondrilo Naidu

AIR 2004 SC 4472, M.L. Devender Singh and Others Vs. Syed Khaja, , Radhe Krishan Aggarwal Vs. Chandrawati and Others, and Narayan

Nagorao Vs. Amrit Haribhau, , this submission made by the learned appellant''s counsel must be eschewed out of consideration. The whole gamut

of above said facts and circumstances goes to reveal that the appellant is long in promises but short in performances. This is the appellant himself

and not the opposite party, who waddled out of his commitments. The second appeal filed by the appellant is lame of strength. The same is

Therefore dismissed at admission stage. CM No. 5623/2007 also stands dismissed. Lower court record be sent back forthwith along with the

copy of this order.