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Judgment
Rajiv Sharma, Judge
Case of the plaintiff, in a nut-shell, is that plaintiff has entered into an agreement to purchase the land measuring 4 bighas 6 biswas with the defendant through her father and attorney on 02.06.2004 for a total consideration of rupees Rs. 9,20,000/-, i.e., rupees two lakhs per bigha. A sum of rupees one lakh was paid to the defendant as earnest money. According Whether the reporters of the local papers may be allowed to see the judgment No. to the plaintiff, no time limit was fixed in the agreement for the purpose of execution of sale deed. The original agreement dated 02.06.2004 was supplemented by a supplementary agreement dated 19.10.2004, whereby the aforesaid land was agreed to be sold by the defendant for a total sum of rupees 25,80,000/-, i.e., @ rupees 6 lakhs per bigha. According to the plaintiff, the entire payment was received by the defendant as per agreement dated 19.10.2004. The defendant has handed over the possession of the suit land. It was covered by the plaintiff by way of raising boundary and he is in possession of the same. Plaintiff has immediately applied for permission u/s 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. Plaintiff was always ready and willing to perform its part of the contract and has already performed the part of contract by making full and final payment to the defendant. According to the plaintiff, there was an understanding between the parties that the time will not be an essence for the purpose of agreement and the time limit mentioned in the agreement was for expediting the matter. The plaintiff apprehended that the defendant with an ulterior motive and in a fraudulent manner may transfer, alienate and encumber the property in question in favour of a third party. According to the plaintiff, the defendant has executed a special power of attorney through her General Power of Attorney for the purpose of executing the sale deed in favour of the plaintiff. According to the plaintiff, the cause of action has accrued on 02.06.2004 and thereafter on 19.10.2004. It is in these circumstances, the suit was filed for specific performance and permanent prohibitory injunction. The suit was contested by the defendant by filing written statement. The defendant has taken a preliminary objection that the plaintiff has failed to give correct details of the sole proprietorship. According to the defendant, the plaintiff has not come to the Court with clean hands. According to the defendant, one of the documents filed by the plaintiff was forged. It is further stated that the parties have entered into only two agreements, dated 11.06.2004 and 12.06.2004. The first agreement was signed between the parties for the purpose of obtaining revenue permission and the second was the actual agreement. The original of the second agreement was kept by the plaintiff and a carbon copy and photocopy was given to the defendant. He signed some blank stamp papers for bonafide use of the plaintiff, but the plaintiff has mis-used/manipulated the stamp papers with illegal motive. On merits, the defendant has stated that two agreements were signed as per the preliminary objections taken and some blank papers bonafidely were signed for the use of plaintiff. According to the defendant, the plaintiff has forged an agreement, which was not required in the light of agreement dated 12.06.2004. It was denied by the defendant that no time limit was fixed. According to the defendant, the last date for the purpose was 02.09.2004. The defendant has rescinded the agreement on 29.11.2004. He has also issued a notice by way of publication in the daily edition of ''Punjab Kesari'' dated 13.12.2005. He has denied the signing of agreement dated 19.10.2004. According to the defendant, he was in possession of the suit land. It is further stated that the plaintiff has failed to make the payment as per agreement dated 12.06.2004. The raising of the boundaries was denied. According to the defendant, learned Civil Judge, Nalagarh has ordered on an interim application of the defendant that the possession of the suit land shall remain with the defendant. The defendant has denied that the plaintiff was ready and willing to perform its part of the contract. According to the defendant, the time was the essence of the contract and when the plaintiff failed to pay the balance amount as per agreement dated 12.06.2004, the defendant has no alternative except to write a letter dated 29.11.2004. The plaintiff was required to obtain permission prior to 02.09.2004.
Replication was filed by the plaintiff. Plaintiff has reiterated that the agreements were signed between the parties on 02.06.2004 and 19.10.2004. According to the plaintiff, as far as the agreement dated 12.06.2004 is concerned, the sale deed already stood registered. It was denied that the agreement between the parties expired on 02.09.2004. It was reiterated that the time was not the essence of the contract. According to the plaintiff, the entire consideration stood paid to the defendant. According to the plaintiff, he was put in possession of the land and he has already raised an industry.
On the pleadings of the parties, the following issues were framed on 10.07.2007:
Whether the defendant agreed to sell the suit land to the plaintiff, vide agreement dated 2.6.2004, initially for a consideration of Rs. 9,20,000/- (Rupees nine lakh, twenty thousand) and later on the agreement was revised and fresh agreement was executed on 19.10.2004, whereby the sale consideration was fixed at Rs. 25,80,000/- (Rupees twenty-five lakh, eighty thousand)? OPP.
If issue No. 1 is proved, whether the plaintiff paid the entire amount of the sale consideration at the time of execution of the new agreement dated 19.10.2004, as alleged, and the possession of the property, agreed to be sold, was delivered by the defendant to the plaintiff? OPP
If both the issues framed above, are proved, whether the plaintiff is ready and willing and had always been ready and willing to perform his part of the contract? OPP
If all the three issues, framed above, are proved, whether the plaintiff is entitled to the relief of specific performance? OPP
Whether only one agreement was executed between the parties for the sale of the suit property and the date of execution of that agreement is 12.6.2004, as alleged? OPD
If issue No. 4 is proved, whether the time was essence of that agreement, as alleged, and on account of the plaintiff''s not getting the sale deed executed and registered within the time fixed therein, the agreement stood automatically rescinded? OPD
Whether the plaintiff was specifically sought to be informed by the defendant about the automatic rescission of the agreement, because of the plaintiff''s not getting the sale deed executed and registered within the time, but the communication sent to the plaintiff by the defendant was received back undelivered, as alleged? If so, its effect? OPD
Whether the suit is not maintainable, as alleged? OPD
Whether the plaintiff has suppressed the true facts? If so, its effect? OPD
Relief.
I have heard Mr. Ramakant Sharma, learned counsel for the plaintiff, Mr. N.K. Gupta, learned counsel for the defendant and has also perused the case file carefully.
For the reasons to be recorded hereinafter while discussing the issues, my findings to the issues are as under:
Issues No. 1. : Yes
Issue No. 2. : Yes
Issue No. 3. : Yes.
Issue No. 4. : Yes.
Issue No. 5. : No.
Issue No. 6. : No.
Issue No. 7. : Yes.
Issue No. 8. : No.
Issue No. 9. : No.
Relief : The suit is decreed as per operative portion of the judgment.
REASONS FOR FINDINGS ISSUES NO. 1 to 7.
Since issues No. 1 to 7 are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.
PW-1, Shri Vimal Singh has deposed that plaintiff, i.e., M/s J.S. Minerals is a sole proprietorship concern of Mrs. Jyotsana, daughter of Kanihya Lal. She had executed a General Power of Attorney in his favour vide Ex.-PA. The same was notarized. He has proved Ex.-PB, copy of agreement to sell executed by Surender Singh Multani, father of Kumari Payal, defendant No. 1. It was executed on 2nd June, 2004. It was witnessed by Shri Shankar Lal, Lumberdar, resident of Nalagarh and Dev Raj, son of Amroo Ram, resident of village Thaliwal, Pargana & Tehsil Nalagarh. It was signed by both the witnesses and Shri Surender Singh Multani. He has identified their signatures at points ''A'', ''B'' and ''C'' since they have signed in his presence. He has also signed on behalf of the plaintiff at point ''D'' on Ex.-PB. According to him, a sum of Rs. 1 lakh was paid to Shri Surender Singh Multani on the day when the agreement was executed. On 13th September, 2004, a sum of Rs. 5 lakhs was paid which fact was acknowledged by executing a receipt on the reverse of Ex.-PB. A sum of Rs. 1,25,000/- was paid on 12 October, 2004. The date for executing the sale deed was extended up to 25th October, 2004. The acknowledgment made by the defendant is Ex.-PC. The extension of time for executing the sale deed till 25th October, 2004 was made in the presence of Shri Dev Raj. Copy of the endorsement is Ex.-PD. He further stated that on 1st September, 2004, the time for executing the sale deed was extended up to 15th October, 2004. The endorsement was made in the presence of Dev Raj, son of Amru Ram, resident of Village Tahliwal, Tehsil Nalagarh and Sh. R.K. Soni, son of Sh. Yash Pal, R/o Sai Road, Baddi, District Solan. The endorsement made by Shri Surender Singh Multani is Ex.-PE. Thereafter, on 19th October, 2004, another agreement to sell was executed between them. This agreement was witnessed by Shri Dev Raj, son of Shri Amru and Khushi Ram, Lumberdar. They signed in his presence. According to him, the original agreement is Ex.-PF. The signatures of two witnesses are Mark ''D'' and Mark ''E''. He identified his signatures at Mark ''F''. The signatures of Surender Singh, father of defendant No. 1, are at Mark ''G''. Ex.-PH is a special power of attorney, which has been executed by Kumari Payal through her father Shri Surender Singh in favour of one Shri Sunil Kumar, son of Shri Nand Lal, resident of Jaroh Mewa, Tehsil Bhoranj, District Hamirpur, H.P. He also stated that the sale deed was to be executed after obtaining permission u/s 118 of the Himachal Pradesh Tenancy and land Reforms Act. According to him, this permission was to be obtained by the plaintiff. He further stated that this land was purchased for setting up a factory. He further stated that Ex.-PK is an Essentiality Certificate issued by the Director of Industries, Himachal Pradesh in favour of the plaintiff. Mark ''Z'' is a copy of communication received by the plaintiff from the State of Himachal Pradesh with reference to the grant of permission u/s 118 of the Himachal Pradesh Tenancy and Land Reforms Act. Mark-''Z-1'' is a certificate given by the Patwari to the plaintiff to meet the objections raised by the State Government. Mark ''Z-2'' is a copy of letter sent by the plaintiff to the Deputy Commissioner, Solan sending all the documents etc. to him. Permission to purchase the land was granted by the State Government. Ex.-PM is the original permission communicated by the State Government to the plaintiff. The defendant did not adhear to the terms of the agreement despite the permission. According to him, the plaintiff was ready and willing to purchase the land. The plaintiff has complied with all the conditions in law required for execution of the sale deed and for transfer of land in her favour. According to him, the entire sale consideration already stands paid to the defendant. In his cross-examination, he has admitted that another agreement to sell Ex. D-1 was executed between the parties. He volunteered that the sale deed for an area measuring 6 bigha 5 biswas subject matter of Ex. D-1 has already been executed and registered. He has also admitted that Ex. D-1 provides a sale consideration @ rupees six lakhs per bigha. He has admitted that only a sum of rupees 7,25,000/- has been paid for land measuring 4 bighas 6 biswas subject matter of Ex.-PB. He has also admitted that on Ex. -PF, signatures of Surender Singh Multani are not immediately above the words ''Alvad'', but much below that. He has also admitted that the papers on which this agreement Ex.-PF had been executed, were bought for the purpose of obtaining permission u/s 118 of the Himachal Pradesh Tenancy and Land Reforms Act.
PW-2, Shri Dev Raj has testified that the first agreement was executed on 2nd June, 2004. The consideration was rupees two lakhs per bigha. According to him, the total land is 4 bighas 6 bishwas. He further stated that Ex.-PB was witnessed by him and one Shri Shankar Lal, Lumberdar and was signed by Shri Surinder Singh Multani and Shri Vimal Singh. Shri Surinder Singh is the father of defendant. He further stated that Shri Surinder Singh was holding the General Power of Attorney on behalf of the defendant. He also stated that Shri Vimal Singh signed the document on behalf of the plaintiff-company. Thereafter, a second agreement was also executed between the parties on 19th October, 2004, which is Ex.-PF. It was signed by Shri Khushi Ram, Lumberdar, Shri Vimal Singh and Shri Surinder Singh. He recognized their signatures mark ''D'' and ''E''. He also recognized the signature of Surinder Singh mark ''G'' and Shri Vimal Singh mark ''F''. According to him, in the second agreement, the rates were increased from rupees two lakhs to rupees six lakhs per bigha. According to him, Shri Surinder Singh has received the entire amount of consideration. The special power of attorney was executed with Shri Sunil Kumar in order to seek the necessary permission etc., copy whereof is Ex.-PH, dated 19th October, 2004. He has denied the suggestion in cross-examination that another agreement was executed on 12th June, 2004. He recognized his signatures on Ex.-PF, dated 19th October, 2004. He has categorically stated that he did not sign the agreement dated 12th June, 2004. He recognized the signatures of Shri Surinder Singh Multani, but he did not know whether he has put his signatures at right place or not. He has denied the suggestion that papers were purchased for the purpose of permission u/s 118 of the Himachal Pradesh Tenancy and Land Reforms Act. He denied the suggestion that they have fabricated the second agreement on these papers.
PW-3 is Shri Banwari Lal. He has identified that stamp papers were purchased from him on 19th October, 2004, on which Ex.-PF and Ex.-PH were prepared. According to him, these were entered at Sr. No. 5422 for the purpose of Special Power of Attorney, i.e., Ex.-PH and at Sr. No. 5423 for the purpose of agreement, i.e., Ex.-PF. These papers were purchased by the defendants through Shri Surinder Singh. In his cross examination, he has admitted that the purpose is required to be mentioned in the register for which the paper is purchased.
DW-1, Shri Surinder Singh has testified that he is holding power of attorney on behalf of the defendant, Kumari Payal. According to him, two agreements were executed between Kumari Payal and the plaintiff, dated 11th June, 2004 and 12th June, 2004, respectively. The necessity to execute the agreement dated 11th and 12th June, 2004 arose since the plaintiff wanted to evade the stamp duty. According to him, the second agreement was executed between the plaintiff and one Shri Prabhjot Singh on 12th June, 2004. In sequel to the agreement executed on 12th June, 2004 between the plaintiff and Shri Prabhjot Singh, the possession of the land was handed over to the plaintiff. He has sent a written communication to the plaintiff by way of registered post and UPC on 1st December, 2005. The copy of notice is Ex. DW-1/A and copy of receipt of UPC is Ex. DW-1/B, respectively. However, the registered letter came back un-served. The same is Ex. DW-1/C. He has also issued a public notice in vernacular news paper ''Punjab Kesri'', dated 13.12.2005. He has admitted that the plaintiff has made him additional payment after the date was agreed to be extended upto 25th October, 2004. The agreement was extended till 25th October, 2004 and the endorsement was made on the reverse of Ex.-PB. He has also signed one document on 19th October, 2004 at the instance of plaintiff to facilitate the necessary permission/no objection certificate under the provisions of H.P. Tenancy and land Reforms Act. According to him, he was made to sign on a blank stamp paper. He also executed a special power of attorney in favour of Shri Sunil Kumar to facilitate the process under the H.P. Tenancy and Land Reforms Act. According to him, the advance money paid by the plaintiff stood forfeited as per the terms and conditions of the agreement. In his cross-examination, he identified his signatures on Ex.-PF encircled as ''A'', ''B'', ''C'' and ''D''. He has denied the suggestion that he entered into an agreement on 19th October, 2004 in the presence of S/Shri Khushi Ram and Dev Raj. He has also denied the suggestion that he has received a sum of Rs. 25,80,000/- in sequel to Ex.-PF, dated 19th October, 2004. According to him, there was no occasion for him to execute sale deed in sequel to agreement dated 19th October, 2004. He reiterated that no agreement was ever executed by him with the plaintiff on 2nd June, 2004 in the presence of S/Shri Shankar Lal and Dev Raj. He admitted his signatures on Ex.-PH. According to him, he did not know whether Sunil Kumar has executed sale deed on 20th January, 2005, pertaining to the land owned and possessed by Mr. Prabhjot Singh.
Ex.-PB, agreement dated 2nd June, 2004 and Ex.-PF, dated 19th October, 2004 have been proved by PW-1, Shri Vimal Singh and PW-2, Shri Dev Raj. According to Ex.-PB, the total consideration was Rs. 9,20,000/-, i.e., 2 lakhs per bigha. The total land was 4 bighas 6 biswas. A sum of Rs. one lakh was paid as earnest money vide cheque No. 99580/- and the balance payment was to be made by 2nd September, 2004. The defendant received a sum of Rs. 5lakhs vide DD No. 323086 drawn at ICICI Bank Ltd, as part payment for sale of land on 13th September, 2004. The original agreement was extended up to 15th October, 2004. A sum of Rs. 1,25,000/- was received vide DD No. 264044 drawn at Standard Chartered Bank. The agreement was extended up to 25th October, 2004. The defendant has identified his signatures on Ex.-PB. He has also identified his signatures on Ex.-PF encircled ''A, B and C''. He also examined his signatures on Ex.-PH encircled ''A, B, C and D''
The contention raised by Mr. N.K. Gupta, learned counsel for the defendant that his client has signed on blank papers cannot be accepted. He is a literate person and it cannot be believed that a literate person would sign on blank papers. The defendant has also executed special power of attorney in favour of Shri Sunil Kumar vide Ex.-PH to facilitate the process of seeking permission u/s 118 of the Himachal Pradesh Tenancy and Land Reforms Act. The defendant has failed to prove the execution of agreements dated 11th and 12th June, 2004. He has not led any tangible evidence to prove these agreements. The plaintiff has proved Ex.-PB, dated 02.06.2004, Ex.-PF, dated 19.10.2004 and Ex.-PH. Ex.-PK is an Essentiality Certificate issued by the Director of Industries, Himachal Pradesh. Ex.-PM is the original permission granted to the plaintiff by the State Government.
It has come in the statement of PW-1, Shri Vimal Singh that the plaintiff was always ready and willing to purchase the land. According to Ex.-PF, a sum of Rs. 17,25,000/- was received by the defendant and a sum of Rs. 8,55,000/- has been paid by way of DD No. 323619 drawn at ICICI Bank. PW-2, Dev Raj has stated that Shri Surinder Singh has received the entire amount of consideration.
Now, as far as the rescinding of the contract by issuing public notice in the vernacular news paper ''Punjab Kesri'', dated 13.12.2005 is concerned, DW-1 has admitted that the details of the property have not been given therein. There are no details of the agreement in Ex. DW-1/D. There is no mentioning of any date in agreement Ex. DW-1/D. It was a vague notice and cannot be believed.
PW-1, Shri Vimal Singh has categorically stated that the plaintiff was ready and willing to register the sale deed. Mr. Ramakant Sharma, learned counsel for the plaintiff has argued that the same could not be registered since the permission was not granted by the State Government u/s 118 of the Himachal Pradesh Tenancy and Land Reforms Act. The same now stood granted vide Ex.-PM. The balance payment was to be paid by 2nd September, 2004, but the time was not the essence of the contract. The first agreement was signed between the parties on 2nd June, 2004 and a supplementary agreement was entered into between the parties on 19.10.2004. The defendant has failed to prove that there was another agreement dated 12.06.2004. The agreement Ex. D-1, dated 12.06.2004 was entered into between Prabjyot Singh, son of Surinder Singh and defendant. According to PW-1, the sale deed pursuant to agreement dated 12.06.2004 was executed and registered. Thus, the issues No. 1 to 4 are decided in favour of the plaintiff and issues No. 5, 6 and 7 are decided against the defendant.
ISSUE NO. 8.
The cause of action has arisen to the plaintiff on 2.6.2004 and 19.10.2004 and the suit has been filed on 7.12.2005. The defendant has not advanced any arguments how the suit is not maintainable. Hence, the suit is maintainable and the issue is decided in favour of the plaintiff.
ISSUE NO. 9.
No arguments have been advanced on issue No. 9 by the defendant. Hence, the issue is decided against the defendant.
RELIEF
In view of the observations and discussions made hereinabove, the suit of the plaintiff is decreed. The defendant is directed to execute and register the sale deed on the basis of agreements Ex.-PB, dated 02.06.2004 and Ex.-PF, dated 19.10.2004 in respect of the land comprised in Khewat Khatauni No. 92/107 min, Khasra No. 536/514/222, measuring 4 bighas, 6 biswas, situated in Mauza Tahliwala No. 160, Pargana and Tehsil Nalagarh, District Solan, as per jamabandi for the year 1998-99, within a period of three months from today. The defendant is also restrained from selling, transferring, alienating or encumbering the suit property in any manner by way of permanent prohibitory injunction. Decree-sheet be prepared accordingly. The miscellaneous application(s), if any, also stands disposed of.