Mohan Lal vs Anil Kumar and Others

L.N. Mittal, J.—Defendant Mohan Lal having lost in both the courts below has filed this second appeal. Respondents/plaintiffs filed suit for specific performance of agreement to sell dated 24.11.2004 alleging that the defendant agreed to sell the suit land measuring 26 kanals 1 marla to the plaintiffs for consideration of Rs. 5,68,750/- and received Rs. 2,93,750/- as earnest money and executed agreement dated 24.11.2004. Sale deed was agreed to be executed upto 15.5.2005 which, however, happened to be Sunday. Accordingly, the plaintiffs after orally intimating the defendant went to the office of Sub Registrar on 16.5.2005 with requisite amount to get the sale deed executed in terms of the agreement but the defendant did not turn up. The plaintiffs also sent notice dated 14.10.2006 to the defendant for executing the sale deed but still the defendant did not do the needful. Plaintiffs have always been ready and willing to perform their part of the contract but the defendant committed breach thereof.

The defendant admitted execution of the impugned agreement and receipt of earnest money. The defendant, however, pleaded that plaintiffs were not ready and willing to perform their part of the contract whereas the defendant attended the office of Sub Registrar on 16.5.2005 to execute the sale deed in terms of the agreement but the plaintiffs did not turn up and therefore, the earnest money stood forfeited.

Both the courts below have decreed the suit of the plaintiffs. Hence this second appeal by the defendant.

I have heard counsel for the appellant and perused the case file.

Counsel for the appellant contended that plaintiffs themselves were not ready and willing to perform their part of the contract and therefore, the suit for specific performance of the agreement could not be decreed. It was pointed out that notice dated 14.10.2006 was sent 17 months after the date stipulated in the agreement for sale deed and the suit was instituted on 22.2.2008. It was also argued that the plaintiffs did not have sufficient money for getting the sale deed executed and they did not even plead this fact in the plaint.

I have carefully considered the aforesaid contentions but the same cannot be accepted. It has come in the evidence that both the parties remained present in the office of Sub Registrar on 16.5.2005. However, thereafter the defendant did not take any step to cancel the agreement or to forfeit the earnest money. The defendant did not serve any notice on the plaintiffs for execution of the sale deed or regarding forfeiture of the earnest money. On the other hand, the plaintiffs served notice dated 14.10.2006 on the defendant requiring him to execute the sale deed in terms of the agreement. There is not even a plea by the defendant that he responded to the said notice. The notice was sent by registered post. The defendant still remained silent. The plaintiffs then filed the instant suit. Thus, presence of the plaintiffs before the Sub Registrar on 16.5.2005, sending of notice dated 14.10.2006 and filing of the instant suit on 22.2.2008 and on the other hand, complete silence on the part of the defendant after 16.5.2005 depict that plaintiffs were always ready and willing to perform their part of the contract whereas defendant committed breach thereof.

The contention of counsel for the appellant that plaintiffs did not have sufficient money and did not even plead that they had sufficient money is unacceptable because the plaintiffs specifically pleaded that they attended the office of Sub Registrar on 16.5.2005 with requisite money. It would depict that they have pleaded that they had the requisite money. Even in replication, the plaintiffs pleaded that they were always ready and willing to get the sale deed executed by paying the balance sale consideration. Consequently, it cannot be said that there is any lack of pleading in this regard by the plaintiffs. There is concurrent finding by both the courts below that the plaintiffs have always ready and willing to perform their part of the contract. The said finding is justified by the evidence on record and is not shown to be perverse or illegal or based on misreading or misappreciation of the evidence on record. There is, therefore, no ground to interfere with the same. On the contrary, execution of the agreement stands admitted by the defendant himself. The suit of the plaintiff has, therefore, been rightly decreed. No question of law much less substantial question of law arises for adjudication in this second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine.