Ram Swaroop & others vs Inder Singh (since deceased) through his legal heirs.

Sureshwar Thakur, J.

1.The plaintiffs' case in brief is that the plaintiff No.1 is a businessman, whereas, plaintiffs No.2 to 6 are joint investors with plaintiff No.1. It is pleaded

that plaintiffs and the sole defendant Inder Singh entered into an agreement of sale on 22nd May, 2007, to sell the suit land @ Rs. 11,50,000/- per

bigha to the plaintiffs, land whereof is comprised in Khata Khatoni NO.2/4 min, Khasra No.535, measuring 0-14 bighas, Khasra No.536 measuring 0-

14 bighas, Khasra No.537, measuring 1-7 bighas, Khasra No.544, measuring 7-5 bighas, kita -4, total measuring 10 bighas, situated at village Dollowal,

Hadbast No.69, Tehsil Nalagarh, District Solan, H.P. The aforesaid land was agreed to be sold, for, a consideration of Rs.1,15,00,000/-. Out of the

said consideration, the defendant, in the presence of the witnesses, had also received earnest money from the plaintiffs to the tune of Rs.30,00,000/-,

and, he had also assured the plaintiffs that the sale deed will be executed on or before 7.09.2007. It has been pleaded that before the expiry of the

appointed date i.e. 07.09.2007, the plaintiffs requested the defendant to get the sale deed executed and registered qua the suit land, in favour of the

plaintiffs. However, the sole defendant expressed his inability to execute the registered deed of conveyance, before 7.9.2007. It has been pleaded that

plaintiffs along with balance sale consideration, visited, the office of Sub Registrar, Nalagarh on 7.09.2007, and, remained thereat till 4.50 P.M.

However, defendant has failed to record his presence in the office of Sub Registrar, Nalagarh on the appointed day. The plaintiff No.1 got prepared,

and, attested an affidavit, from, Notary Public qua his recording, his presence on 7.9.2007 in the Office of Sub Registrar, Nalagarh. Thereafter, on

8.9.2007, plaintiff No.1 personally met the defendant, and, asked him to extend the date of execution, of agreement as per his convenience, and, he

assured the plaintiff No.1 that needful would be done within two days, however, till date nothing has been done, despite, several telephonical and oral

messages conveyed, by the plaintiffs to the defendant. The defendant has not complied with his part of the contract, though, he has received a sum of

Rs.thirty lacs as earnest money from the plaintiffs. It has been pleaded that the plaintiffs are ready and willing to, and, still are willing to perform their

part of contract but the defendant has been avoiding the execution and registration of sale deed, on payment of balance sale consideration. Hence the

suit.

2.That the sole defendant, namely, Inder Singh (now deceased) contested the suit, and, filed written statement, wherein he has taken preliminary

objections, inter alia, locus standi, maintainability, limitation, estoppel, time being the essence of contract, suppressions of material facts etc. On merits,

execution of agreement of 22.5.2007 qua the suit land is admitted. However, it is submitted that defendant entered into an agreement, with, plaintiff

No.1 Sh. Ram Swaroop on 22.09.2006, for, sale of the suit land, on payment of sale consideration of Rs.1,15,00,000/-, and, only earnest money of

Rs.30 lacs was given in advance and the sale deed was to be executed on or beore 22.05.2007 subject to the payment of entire balance payment. It

has been pleaded that plaintiff No.1 is a businessman, and, is dealing in sale and purchase of properties, and, did not come forward for the registration

of the sale deed within the stipulated period, and, was not ready and willing purchaser. On 22.05.2007, Sh. Ram Swaroop again requested the

defendant to give some time, and, to extend the period of agreement, and, again asked to execute other agreement, and, at that time he introduced the

names of other purchasers in the agreement. Thereafter agreement to sell of 22.05.2007 was entered into plaintiff No.1, and, the defendant. As per

the agreement the sale deed was to be executed on or before 7.09.2007, and, the time was made the essence of the contract. It was also mandated in

the agreement, that, in case the sale deed is not executed within the fixed period, the amount of Rs.30,00,000/-paid as earnest money earlier on

22.09.2006, will be forfeited. It is submitted that the agreement was unfortunately rescinded, and, the defendant had to suffer huge irreparable loss, on

account of illegal acts of the plaintiffs. It is submitted that the plaintiffs were never ready and will buyer, and, never approached the defendant for

execution and registration of the sale deed till 7.9.2007 nor they had sufficient money to liquidate the entire balance payment vis-a-vis them. It is

submitted that in fact the defendant went on 7.9.2007 to Sub Registrar's office, Nalagarh for execution of the sale deed, and, waited for the plaintiffs

till 4.15 p.m., but none of them came there for purchase of land. To this effect an affidavit was sworn before the notary public in the presence of

Sucha Singh. It is denied that the defendant was ever contacted telephonically or personally, by the plaintiffs, for the purchase of property, even after

7.9.2007, as alleged. It is submitted that it is the defendant, who, sent the notice of 12.9.2007, extending time, to the plaintiffs to execute the sale deed

by 22.09.2007, and, also warned them, that, thereafter agreement shall stands cancelled/rescinded, and, the advance money paid by them shall stand

forfeited. Thereafter, another notice of 25.09.2007 served upon the plaintiff informing him that the agreement stands cancelled and rescinded, and, the

money paid by him to the defendant also stands forfeited.

3.The plaintiffs herein filed replication to the written statement of the defendant, wherein, they denied the contents of the written statement and re-

affirmed and re-asserted the averments, made in the plaint.

4.On the contentious pleadings of the parties, this Court on 12.03.2012, struck the following issues inter-se the parties at contest:-

1.Whether the plaintiffs are entitled for relief as per agreement dated 22. 05.2007?

2.Whether plaintiffs are entitled for refund of Rs.30,00,000/- from the defendant, as already paid to the defendant, as earnest money?OPP

3.Whether the plaintiffs have no locus standi to file the present suit? OPD.

4.Whether the suit is barred by period of limitation?OPD.

5.Whether plaintiffs are estopped to file the suit by their own acts, deeds, acquiescences etc.?OPD.

6.Whether the time was the essence of the contract under dispute as sale deed was to be executed and registered on or before 22.05.2007 and the

plaintiffs failed to perform their part despite several opportunities?OPD.

7.Whether the plaintiffs have not come to the Hon'ble Court with clean hand and has suppressed material facts?OPD.

8.Whether the plaintiffs having failed to perform their part of the contract are not entitled to the relief claimed?OPD.

9.Whether the suit is not maintainable in the present form? OPD.

10.Relief.

5.For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as under:-

Issue No.1....... Yes.

Issue No.2........          No.

Issue No.3........          No.

Issue No.4........          No.

Issue No.5....... Â Â Â Â Â Â Â Â Â Â No.

Issue No.6........          No.

Issue No.7...... Â Â Â Â Â Â Â Â Â Â Â No.

Issue No.8....... Â Â Â Â Â Â Â Â Â Â Â No.

Issue No.9.....            No.

Relief.......... Suit of plaintiff is decreed as per the operative portion of the judgment. Reasons for findings. Issues No.1, 2, 6 and 8.

6.All theses issues are taken up together for discussion, as they are common in nature besides common evidence thereon stands hence adduced by the

parties.

7.The initial agreement to sell, was, entered inter se plaintiff Ram Swaroop with deceased sole defendant Inder Singh, agreement to sell whereof, was,

entered into inter se them, on 22.09.2006. However, thereafter the apposite hereat agreement, to sell was executed inter se the parties at contest, on

22.05.2007, agreement to sell whereof, is exhibited as Ex.PW2/D. In proof of execution of aforesaid Ex.PW2/D, the plaintiff stepped into the witness

box as PW-2, and, has made a testification, in consonance, with, the averments borne in the plaint. He has in his testification, admitted, the occurrence,

of his signatures in read circle 'A', in Ex.PW2/D. Since, time was the essence of the contract and the contract to sell, comprised in Ex.PW2/D, was

enjoined to be consummated, on or before 7.09.2007, by execution of a registered deed of conveyance vis-a-vis the suit property, (a) hence, in proof,

of the plaintiff(s) recording, on the appointed day, hence his/their presence in the office of Sub Registrar concerned, plaintiff Ram Swaroop in his

tesitifcation, hence, relied upon, an affidavit borne in Ex.PW1/A, wherein, disclosures occur of his, on 7.09.2007, recording his presence before the

Sub Registrar concerned, for ensuring qua the apposite deed of conveyance being registered vis-a-vis the suit khasra numbers, (b) whereas, the sole

defendant, namely, Inder Singh, rather omitting to record his presence thereat, (c) on anvil thereof, the plaintiffs hence espoused, through, their

counsel, of theirs, readiness, and, willingness to perform their part of contract, on the date(s) specified, in the contract of sale, borne in Ex.PW2/D, (d)

whereas, the sole defendant Inder Singh, hence, omitting to record his presence, on 7.9.2007, before the Sub Registrar concerned, his thereupon

personifying, his unwillingness, whereupon, a decree for specific performance of agreement to sell, comprised in Ex.PW2/D, is enjoined to be

pronounced against the defendants.

8.The testification of PW-2, with respect to valid execution, and, attestation of affidavit, borne in Ex.PW1/A, is meted corroboration by PW-1. The

cross-examination of PW-1, omits to make any unfoldings, of his falsifying, the recitals borne, in Ex.PW1/A, hence, it is to be concluded, of the

plaintiff rather recording his presence, on 7.9.2007, in the office of Sub Registrar concerned. However, also it is to be ascertained, from, the evidence

existing on record qua the defendant, as espoused by the counsel for the plaintiffs, rather failing to record his presence, on the aforesaid date, before

the Sub Registrar concerned, or whether as espoused by the counsel for the defendant, the latter recording his presence, before, the Sub Registrar

concerned, whereas, contrarily, the plaintiffs omitting to record their presence, before, the Sub Registrar concerned, hence, contrarily concomitantly

there being unwillingness of the plaintiffs, to perform their part, of contract, comprised in Ex.PW2/D. The learned counsel appearing for the

defendant(s), in making the aforesaid contention before this Court, has depended upon the testification of DW-2, (a) who in his testification borne in is

examination-in-chief, has made communications, of, on the relevant date, the plaintiffs omitting to record their presence in the office of the Sub

Registrar concerned, (b) and also qua subsequent thereto, notices, comprised in Ex.DW2/1, being, as depicted by Ex.DW2/2 hence standing served

upon the plaintiffs, (c) and, also disclosed qua another notice comprised in Ex.DW2/3, being also on instruction(s) of his father, standing prepared by

an advocate, and, its being, as displayed by receipt borne in Ex.DW2/4, hence, served upon the plaintiffs. (d) Hence, the respective probative vigours

of the aforesaid exhibit(s), tendered into evidence vis-a-vis the vigour of Ex.PW1/A, is enjoined to be cumulatively assessed, for, hence gauging qua

the plaintiffs or the defendant recording or not recording their respective presences, on 7.9.2007, in the office of Sub Registrar concerned. Though, in

the aforesaid notices, recitals do occur of the sole defendant, Inder Singh, on the date recited therein, hence recording his presence before the Sub

Registrar concerned. Nonetheless, when assessing the compatible probative vigour of the apposite recitals borne therein, vis-a-vis the recitals borne in

affidavit comprised in Ex.PW1/A, (e) especially, with contents of Ex.PW1/A being corroborated by Public Notary concerned, who has testified as

PW-1, and, who during the course of his cross-examination, was, rather omitted to purvey any suggestion, for, hence falsifying all the recitals borne

therein, (f) whereas, Ex.DW2/1, and Ex.DW2/3, being merely notices served by the counsel for the defendant, upon, the plaintiffs, and, also with the

counsel remaining unexamined, in Court, thereupon, the probative vigour of affidavit, borne in Ex.PW1/A, is, of a graver degree vis-a-vis the degree of

vigour of the notices, borne in Ex.DW2/1, and, in Ex.DW2/3. (g) More so, when the defendant(s) could well have made an affidavit in respect of the

recitals, borne in the respective notices, rather than his taking to issue notices, upon the plaintiffs, (h) besides even if the notices held truthful

disclosure, thereupon, it was imperative upon the defendant(s) to lead into the witness box, the counsel concerned, who hence prepared, scribed or

authored them. Omission of the defendant(s) to lead into the witness box, the counsel, who prepared, scribe or authored the apposite notices, rather

constrains a conclusion, of all, the recitals occurring therein, being entirely invented besides contrived, only, for smothering the effect of Ex.PW1/A.

9.Be that as it may, the learned counsel, for the defendant(s) has relied, upon an admission occurring, in the cross-examination, of the plaintiff (PW-2),

(i) of his not making any intimation to the defendant qua his, on 7.9.2007, hence, arriving at the office of Sub Registrar concerned. (ii) Nonetheless, the

effect thereof is waned by the factum of DW- 2 making, for reasons aforesaid, rather an untruthful testification, of, on the aforesaid day, contrarily his

father, the sole defendant Inder Singh remaining present in the office of the Sub Registrar concerned, and, whereas the plaintiff(s) not recording his

presence thereat, whereupon, it is concomitantly inferable qua his acquiescing vis-a-vis an apposite intimation vis-a-vis the relevant purpose, rather

being held by him. (iii) Sequel thereof is of it, being, hence inferable therefrom of the plaintiffs being ready, and, willing to perform their part of their

obligation(s) borne in Ex.PW2/D, and, the defendant derelicting to perform his part of contract, borne in Ex.PW2/D.

10.Nowat it is to be discerned, qua whether a part of the sale consideration, comprised, in a sum of Rs.30,00,000/-, as evidently paid in

contemporaneity vis-a-vis the execution, of, the initially executed agreement to sell, and, with time of consummation thereof, rather standing extended,

through, Ex.PW2/D, qua whether the aforesaid tenderings, of, part, of, sale consideration also being reckonable, as part, liquidation(s) vis-a-vis the

agreement drawn, and, exhibited, as Ex.PW2/D. In making the aforesaid conclusion, an allusion to the testification, of, the son of deceased sole

defendant Inder Singh, is imperative. He while testifying as DW-2, has, in his cross-examination rather acquiesced, to the suggestion, of, at the time of

execution of the initial apposite agreement to sell, a part of the sale consideration, comprised, in a sum of Rs.30,00,000/- being tendered by the

plaintiff(s) vis-a-vis his deceased father. However, yet, the learned counsel appearing for the defendant, has contended that the aforesaid testification,

rendered by the son of deceased sole defendant Inder Singh, not garnering any conclusion of the part of sale consideration, tendered earlier, being also

construable vis-a-vis tenderings qua agreement to sell, borne in Ex.PW2/D,

(a)rather its tendering being construable, only, with respect to the prior thereto agreement to sell executed inter se the plaintiff Ram Swaroop, and,

deceased Inder Singh, and concomitantly with no amount being paid, at the stage, of, execution, of Ex.PW2/D, (b) thereupon, the tenderings, of, part

of sale consideration borne in a sum of Rs.30,00,000/-, purportedly, as earnest money, by the plaintiffs vis-a-vis the deceased sole defendant, enjoining,

its being forfeited, and, its not being reckonable as advance or earnest money vis-a-vis Ex.PW2/D, (c) and that even if assumingly, this Court renders

a decree for specific performance of contract, borne in Ex.PW2/D, thereupon, the plaintiffs being enjoined, to liquidate vis-a-vis the defendants, the

entire sale consideration, comprised in a sum of Rs.1,15,00,000/-. However, the aforesaid submission, cannot be accepted, given it being admitted, in

the apposite pleadings drawn by the defendant, of Ex.PW2/D being executed only for extending time(s), for the relevant purpose, as stood initially

embodied, in the prior contract of sale, executed solitarily inter se plaintiff Ram Swaroop vis-a-vis the deceased sole defendant Inder Singh. If,

Ex.PW2/D was hence executed for extending time, for ensuring complete execution of the apposite registered deed of conveyance vis-a-vis th suit

khasra numbers, (iii) thereupon, ipso facto hence the earnest money, earlier tendered by co-plaintiff No.1 vis- a-vis the sole defendant Inder Singh,

especially under a prior agreement to sell, also became, the requisite earnest money or advance, vis- a -vis the total sale consideration, (iv) besides

obviously, hence, thereupon, the forfeiture clause, hence, occurring in the prior agreement of contract of sale, also stands annulled, and, the aforesaid

submission is rendered rudderless, and, is rejected. Hence, issues No.1, 2, 6 and 8 are decided in favour of the plaintiffs and against the defendants.

Issue No.3 to 5.

11.No evidence exists on record to show that as to how the plaintiffs have no locus standi, or that as to how the plaintiff's suit is barred by limitation,

as also, as to how the plaintiffs are estopped from filing the instant suit, hence, both the aforesaid issues are decided in favour of the plaintiffs and

against the defendants.

Issue No.7:

There exists no evidence on record to show that as to how the plaintiffs have not come to this Court with clean hand, hence, issue No.7 is decided

in favour of the plaintiffs and against the defendants.

Issue No.9

13.In view of my findings on Issues above, the plaintiff suit is maintainable in the present form, hence, issue No.9 is decided in favour of the plaintiff

and against the defendants.

Relief.

14.In sequel to findings on issues aforesaid, the suit of plaintiffs is decreed, and, a decree is hereby passed in favour of the plaintiffs, and, against the

defendants for specific performance of the agreement to sell of 22.05.2007, and, the defendants are directed to, in accordance with law, within two

months, from today, execute a registered deed of conveyance vis-a-vis the plaintiffs in terms of the agreement qua the suit land comprised in Khata

Khatoni No.2/4 min, Khasra Nos.535, measuring 0-14 bighas, 536, measuring 0-14 bighas, 537, measuring 1-7 bighas, 544 measuring 7-5 bighas, Kita

4, total measuring 10 bighas, situated at village/mauja Dollowal, Hadbast No.69, Tehsil Nalagarh, District Solan, on payment of remaining sale

consideration of Rs.85,00,000/-, as also, are directed to deliver vacant and peaceful possession, of, the suit land, to the plaintiffs. Decree sheet be

prepared accordingly. All pending applications also stand disposed of.