Romesh Singh vs Dharam Pal

Arun Palli, J.—Suit filed by the plaintiff, seeking specific performance of the agreement of sale, was partly decreed by the trial Court and a decree for recovery of Rs. 21,00,000/- from the defendants along with interest @ 12% per annum was passed. Appeal filed against the said decree by the plaintiff was accepted and vide judgment and decree dated 23.01.2014, suit of the plaintiff was decreed, as prayed for. That is how, the defendants are before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

In short, the case set out by the plaintiff was that an agreement dated 03.01.2006 was executed by the defendants in favour of the plaintiff for sale of land, measuring 48 kanals, situated in Village Dhobra, Tehsil Pathankot. Suit land was agreed to be sold @ Rs. 6.50 lakhs per killa and an amount of Rs. 21,00,000/- were paid by way of earnest money. Balance sale consideration was to be paid at the time of execution of the sale deed. And the date fixed for this purpose was 30.06.2006. It was pleaded that plaintiff reached the Tehsil office Pathankot on 30.06.2006 during working hours and he was duly possessed of the balance sale consideration and sufficient funds to defray the necessary expenses. However, defendants failed to turn up. Plaintiff left with no alternative got an affidavit typed in this regard. However, at the end of the day, the defendants suddenly appeared but refused to execute the sale deed. That being so, plaintiff got his affidavit attested from Executive Magistrate, Pathankot who also functions as Sub Registrar. It was maintained that the plaintiff has always been and was even now ready and willing to perform his part of the contract. Thus, the suit.

In defence, defendants pleaded, inter alia, that the agreement in question i.e. dated 03.01.2006 (Ex. P1) was executed by the defendants. However, it was denied that the plaintiff had paid a sum of Rs. 21,00,000/- to the defendants as earnest money at the time of execution of the agreement. In fact, plaintiff only paid a sum of Rs. 13,50,000/-, as he told the defendants that he actually intends to sell the suit land to some other person and, therefore, let a sum of Rs. 21,00,000/- be mentioned as having been paid by way of earnest money by him so that he could further earn some money. This version was believed due to cordial relations between the parties. It was averred that the plaintiff happened to be a property dealer and thus, never intended to purchased the land himself. Sale deed was to be executed on payment of sum of Rs. 25,50,000/- i.e. the balance sale consideration. It was denied that the plaintiff reached the Tehsil premises on 30.06.2006 with balance sale consideration. It was also denied that he got an affidavit attested. Rather, it was maintained that the defendants attended the office of Sub Registrar, Pathankot but the plaintiff never turned up, as he failed to arrange the balance sale consideration and the amount required to incur expenses on the execution and registration of the sale deed.

On an analysis of the matter in issue and the evidence on record, trial Court arrived at a conclusion that admittedly the agreement dated 03.01.2006 (Ex. P1) was executed between the parties. Plaintiff had successfully proved that he had paid an amount of Rs. 21,00,000/- to the defendants by way of earnest money. Further, plaintiff had placed on record his duly sworn affidavit dated 30.06.2006 (Ex. P2). It was categorically stated in the said affidavit that he remained present from 9:00 am till the closing of the Tehsil office but the defendants did not turn up to get the sale deed executed. But at the margin of the said affidavit (Ex. P2) a note was given that the defendants were present but they refused to get the sale deed executed. It was observed that said affidavit (Ex. P2) was attested by the Executive Magistrate, Pathankot at serial No. 942/RC dated 30.06.2006. On the contrary, defendants also produced on record their affidavit (Ex. D1), attested at serial No. 939/RC dated 30.06.2006. Thus it was observed, though both the parties were present at Tehsil Complex Pathankot but yet the sale deed was not executed for the reasons best known to them. Therefore, conduct of both the parties become doubtful and suspicious. On a further analysis, it was observed that affidavit of the defendants (Ex. D1) was entered at serial No. 939/RC on 30.06.2006 and the affidavit of the plaintiff was entered at serial No. 942/RC, on the same day, that showed that the defendants got their presence marked prior to the plaintiff and he reached the Tehsil Complex after the defendants. Still further, plaintiff had claimed in his affidavit (Ex. P2) that he remained present at Tehsil Complex Pathankot from 9:00 am to 5:00 pm, whereas, on the same day i.e. 30.06.2006, he himself had withdrawn a sum of Rs. 21,00,000/- from Canara Bank, Begowal, which was at a distance of about 30 kilometers from Pathankot. Thus, conduct of the plaintiff showed that he could not reach the Tehsil Complex Pathankot on 30.06.2006 in time. A reference was made to the decision of Hon''ble the Supreme Court reported as Jai Narain Parasrampuria (Dead) and Others Vs. Pushpa Devi Saraf and Others, to observe that conduct of both the parties showed that they were trying to abuse the process of the court. Accordingly, it was held that plaintiff was not entitled to the decree for specific performance, as prayed for. Since he had successfully proved that he had paid an amount of Rs. 21,00,000/- to the defendants by way of earnest money, a decree for recovery for the said amount along with interest was passed.

Being dissatisfied with the said decree, plaintiff preferred an appeal. Answer to the crucial question i.e. why despite both parties being present before the Sub Registrar, sale deed could not be executed, emerged to fore. Counsel for the defendants urged before the first Appellate Court that the sale deed was not executed as the plaintiff had only paid a sum of Rs. 13,50,000/- at the time of execution of the agreement and not Rs. 21,00,000/- and thus defendants were demanding that difference in the amount also. It would be apposite to crystallize the position further, the total sale consideration to be paid by the plaintiff was Rs. 39,00,000/- i.e. 48 kanals @ Rs. 6,50,000/- per killa. The case of the plaintiff was that he had paid a sum of Rs. 21,00,000/- by way of earnest money and thus, the balance sale consideration was just Rs. 18,00,000/-. Whereas, the case set out by the defendants was that a payment of Rs. 21,00,000/- by way of earnest money was merely a recital in the agreement, though indeed they had only received a sum of Rs. 13,50,000/- and thus, the balance sale consideration was Rs. 25,50,000/-. On an analysis of the matter in issue and the evidence on record, first Appellate Court arrived at a conclusion that defendant No. 1-Romesh Singh (DW1) admitted his signatures as well as signatures of the other defendants on all the pages of the agreement to sell (Ex. P1). He further admitted that plaintiff''s witnesses Balbir Singh and Dalbir Singh had put their signatures on the agreement to sell. He had also admitted that the agreement to sell was scribed by H.S. Naru, Advocate in his presence. He also admitted that it was recited in the agreement to sell that a sum of Rs. 21,00,000/- was paid by way of earnest money. He also admitted in his cross-examination that he had not given any notice regarding non-payment of Rs. 21,00,000/- and stating that only a sum of Rs. 13,50,000/- was paid at the time of execution of the agreement to sell. Defendants had failed to prove any enmity with the scribe or the witnesses. Defendants never filed any application or complaint to any authority regarding getting their signatures on the agreement by writing Rs. 21,00,000/- in spite of Rs. 13,50,000/-. Plea of the defendants that they had not been paid a sum of Rs. 21,00,000/- by way of earnest money was found to be untenable. Plaintiff was held to be ready and willing to perform his part of the contract. That being so, reliance was placed upon the two decisions of this Court reported as Jora Singh Vs. Lakhwinder Kumar and Others, and Vijay Kumar Vs. Rakesh Kumar and Others, observe that once the agreement is proved, normal rule is to grant a relief of specific performance of the agreement unless there exist some special circumstances. Therefore, the first Appellate Court was of the view that the plaintiff was entitled to the decree for specific performance of the agreement to sell. Accordingly, the appeal was accepted.

I have heard learned counsel for the parties and examined the judgments rendered by both the Courts below.

Learned counsel for the defendants contends that, a payment of sum of Rs. 21,00,000/- by way of earnest money was merely a recital in the agreement, defendants were only paid Rs. 13,50,000/-, as parties knew each other and there existed some previous business dealings between them. He further submits that the plaintiff was a property dealer and he further wanted to sell the property to some other person.

Argument that is being advanced, lacks conviction and cannot be countenanced. Ex facie, both the Courts have concurrently concluded that a sum of Rs. 21,00,000/- were paid by the plaintiff to the defendants by way of earnest money. So much so, after the trial Court passed a decree for recovery of sum of Rs. 21,00,000/- against the defendants, they did not choose to prefer any appeal. They never even filed any cross-objection in the appeal preferred by the plaintiff before the first Appellate Court. Defendant Romesh Singh (DW1) admitted his signature and signature of other defendants on all the pages of the agreement. He admitted that plaintiff and his witnesses Balbir Singh and Dalbir Singh also signed the agreement. Admittedly, H.S. Naru, Advocate, scribed the agreement in his presence. Witnesses to the agreement deposed that earnest money was paid in their presence. H.S. Naru, Advocate deposed that payment had been made in his presence. Findings recorded by both the Courts that an amount i.e. Rs. 21,00,000/- were indeed paid to the defendants, could not be shown to be perverse or contrary to the position on record. Not just that, it was also recited in the agreement that in case defendants failed to get the sale deed executed on or before 30.06.2006, they would pay a sum of Rs. 42,00,000/- to the plaintiff. Meaning thereby they would return down the amount received by them. Suggestion made to the plaintiff in his cross-examination that he was dealing in real estate business, was categorically denied. Suggestion, that there were some previous business dealings between the parties and they had cordial relations was also emphatically denied by the plaintiff. Nothing was brought on record to substantiate such a plea.

Additionally, it was also contended that, to be entitled to the decree for specific performance of the agreement, plaintiff was required to prove, dehors of everything, that he was always ready and willing to perform his part of the contract. He submits that plaintiff operated his bank account and withdrew a sum of Rs. 21,00,000/- on the same day i.e. the day fixed for execution and registration of the sale deed. The amount was withdrawn from Canara Bank Begowal, which was at a distance of about 30 kilometers from Pathankot. Going to Begowal the same day, showed that he was in no position to reach the Tehsil Complex in time. Had he been willing, he would have operated his accounts and made arrangements much earlier. Further, had he intended to have the sale deed executed, he would have certainly purchased the stamp papers to prove his intent.

The submission being advanced is equally devoid of merit, as is being demonstrated hereinafter. Concededly, agreement in question was executed by the defendants. It had been concurrently found by both the Courts that a sum of Rs. 21,00,000/- were paid by the plaintiff by way of earnest money. Plaintiff had produced his statement of account (Ex. P6), dated 30.06.2006, which revealed that an amount of Rs. 21,00,000/- was credited in his account by the bank and on the same day, the said amount was withdrawn by him by cheque (Ex. P5). A certificate issued by the Canara Bank dated 07.04.2008 (Ex. P4) in this regard were produced on record. Evidently, plaintiff availed a credit facility and his bankers credited a sum of Rs. 21,00,000/- in his saving bank account which he withdrew. A mere distance of about 30 kilometers between Pathankot and Begowal could not be constructed to hold that the plaintiff was in no position to reach the Tehsil Complex in time. It can be safely presumed that he must have left early and operated his accounts Plaintiff had an assured arrangement. He knew, he could withdraw the requisite amount the same day and still reach Tehsil office right in time. It can be safely presumed that he must have left early and operated his accounts the moment bank opened and reached Tehsil Office well in time. Of course, recital in his affidavit (Ex. P2) that he remained present from 9:00 am to 5:00 pm in the Tehsil Complex may not be technically correct. But that is understandable, as that is the form and standard language used by the Typists when they type such affidavits. I am reminded to point out at this juncture that plaintiff had a serious stake and interest in the transaction. He had paid a sum of Rs. 21,00,000/- by way of earnest money. And any breach or infraction of the contract could cost him dearly. He had an assured financial arrangement. Having withdrawn the requisite and necessary amount, he would not refrain from getting the sale deed executed. That to at the cost of getting his earnest money forfeited. It is not abstruse that he did not withdraw such a considerable amount in advance as he did not wish to keep the cash with himself. Therefore, he operated his account the same day. Both the Courts have concurrently found that the plaintiff was present at the Tehsil Complex and even got his presence marked before the Executive Magistrate, Pathankot. Plaintiff failed to reach in time and, therefore, the sale deed could not be executed, any evidence in this regard is conspicuous by its absence. Still further, defendants having failed to execute the sale deed on 30.06.2006, the plaintiff file the present suit in less than a month''s time on 28.07.2006.

It would be apposite to notice at this point in time, that there is serious dichotomy in what is being urged and the plea of the defendants in their affidavit (Ex. D1), written statement and even the suggestion made to the plaintiff in his cross examination i.e. plaintiff never attended the office of Sub Registrar Pathankot on 30.06.2006, as he could not arrange the balance sale consideration. That being so, defendants could not be permitted to say the converse i.e. that though the plaintiff was present and equipped with the balance sale consideration yet he was not ready and willing to perform his part of the contract as he reached late.

Be that as it may, the true and actual reason as to why the sale deed could not be executed and registered on 30.06.2006, is unravelled i.e. defendants themselves did not execute the same as they disputed the receipt of sum of Rs. 21,00,000/- by way of earnest money. Not just that, this is what they stated even in their affidavit (Ex. D1) before the Executive Magistrate. The plea which was palpably false and an afterthought to wriggle out of the contract.

In the face of the above, could it be still said that the plaintiff was not ready and willing to perform his part of the contract? The answer is emphatically ''no''. Ready and willingness is not to be determined with mathematical precision or clinical demonstration. Rather, the entire contract from its inception needs to be recapitulated and analyzed event by event to examine the conduct of the parties, their true mind, intent and dispositions at all the relevant stages of the contract. Of course with the aid of the evidence on record.

In the wake of the position as set out above, no ground, least plausible in law, exists to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration. Appeal being devoid of merit is, accordingly, dismissed.